Exploring Brazil’s Complex Environmental Legal Framework with Environmental Lawyer and Professor – Luiz Carlos Aceti Junior
Insights from Aceti Advocacia’s 30-Year Journey
Aceti Advocacia was founded in 1993 and is headed by lawyer Luiz Carlos Aceti Junior. The firm specialises in Environmental Business Law, Environmental Agrarian Law, Environmental Labour Law, and Mining Law, among other related areas.
We work in the administrative phase (involving technical agencies and activities that precede legal proceedings), in advisory matters, with a preventive strategic vision, and in court, in civil, criminal, and labour cases. Aceti Advocacia is comprised of highly qualified professionals who are deeply committed to delivering the highest quality legal services and refined legal expertise, consistently striving to achieve the best possible solutions for our clients.
We have been in the market for over 30 years thanks to our ethical, responsible, and dedicated work. Our clients include entrepreneurs, agribusiness, and national and multinational corporations from various sectors and legal situations.
Headquartered in the interior of the state of São Paulo, Aceti Advocacia also has offices in the cities of São Paulo / SP and Campinas / SP, allowing our clients the convenience of choosing the most suitable location. The firm also has partner offices in Belo Horizonte/MG, Fortaleza/CE, and São Luís/MA.
Environmental Landscape
Can you explain the current environmental legal landscape in Brazil and how it impacts businesses and industries?
We have robust legislation and an extensive regulatory system, which pose challenges in their application and enforcement. Article 225 of the 1988 Federal Constitution states that an ecologically balanced environment is everyone’s right and places on public authorities and the community the responsibility to protect and preserve it for present and future generations. On this foundation, various laws and regulations govern the use of natural resources, the protection of biodiversity, and the mitigation of environmental impacts.
The key environmental laws and regulations are (i) the National Environmental Policy Law (Law No. 6.938/1981); (ii) the Forest Code (Law No. 12.651/2012); (iii) the Environmental Crimes Law (Law No. 9.605/1998); and (iv) laws and regulations on environmental licensing, among others. Companies and industries face significant challenges under Brazil’s environmental legislation:
Environmental Licensing: The process of obtaining environmental licenses is complex and time-consuming, generating uncertainty for investments. Companies that fail to meet the requirements can face fines and the suspension of activities;
Compliance with Environmental Standards and Regulations: Companies are required to adhere to standards set by environmental agencies, including emissions control and waste treatment. Failure to comply can lead to severe sanctions;
Social and Environmental Responsibility: Companies are facing increasing pressure to adopt responsible social and environmental practices, which can facilitate access to financing and attract investors;
Changes in Legislation and Deregulation: Discussions about making environmental regulations more flexible aim to promote economic development but also raise concerns about environmental degradation and legal uncertainty.
Inspection and Sanctions: Environmental oversight is conducted by federal, state, and municipal agencies, which often face resource limitations and occasional political interference. Sanctions may include fines and criminal liability for executives.
Brazil’s Challenges
What are some of the most significant challenges you face when providing environmental advisory services to your clients?
We navigate multifaceted scenarios that demand in-depth technical expertise, solid negotiation skills, and the flexibility to adapt to constant market changes. It remains a continuous challenge:
– Complex and dynamic legislation: The constant evolution of environmental laws and overlapping regulations across various levels of government often complicate interpretation and enforcement;
– Reconciling conflicting interests: Brazilian lawyers routinely work to balance companies’ economic interests with environmental protection requirements;
– Bureaucracy in environmental licensing: The slow and complex licensing process often results in delays and substantial costs for entrepreneurs;
– Conflicts with local communities: Projects that impact protected environmental areas or the territories of traditional communities often lead to conflicts and resistance;
– Risks of litigation: The potential for lawsuits and the need to negotiate consent decrees add complexity to legal work;
– Changes in the political and economic landscape: Changes in public policy and the economic climate can undermine legal certainty and project implementation;
– Managing reputational impact: Safeguarding a company’s image during environmental crises demands strong communication and crisis management skills;
– Innovation and sustainability: The demand for more sustainable practices drives the search for innovative solutions;
– Lack of specialization and resources: Many companies lack in-house departments dedicated to environmental issues, requiring deeper involvement from the legal team in advising and training clients.
Environmental Litigation
How do you navigate the complexities of environmental administrative litigation, especially when dealing with government agencies?
In addition to the complex legislation already mentioned, which requires professionals to stay constantly up-to-date, there are several key points worth highlighting:
– Managing administrative processes: Lawyers must master each stage, from presenting defences to negotiating agreements with environmental agencies;
– Interaction with regulatory agencies: Building solid relationships with environmental agencies is vital for effectively resolving potential conflicts;
– Producing technical evidence: Presenting technical reports and expert opinions to support the defence often requires a multidisciplinary team, including engineers, geologists, biologists, and others, in addition to lawyers;
– Negotiating Consent Decrees (TAC): Pursuing out-of-court settlements can be an effective strategy for resolving certain conflicts;
– Appeal strategies: Lawyers must be fully aware of the available administrative and judicial appeal options to defend their clients’ interests effectively;
– Challenges in large projects: Complexity increases in large-scale projects due to pressure from interest groups and the need to mitigate environmental impacts;
– Changes in environmental policies: Shifts in government policies can have a direct impact on the environmental administrative process;
– Resource limitations in government agencies: Insufficient resources and infrastructure in environmental agencies can result in delays and inconsistencies in procedures;
– Preventive strategies: The significance of preventive consultancy and the implementation of environmental compliance programmes to mitigate future risks and losses.
Judicial Litigation
Can you share a case or situation where environmental judicial litigation played a pivotal role in shaping environmental policy or corporate behaviour?
In April 2020, the Federal Supreme Court (STF) ruled on Extraordinary Appeal (RE) 654.833, under General Repercussion 999, and recognised that actions for damages related to environmental harm are not subject to statute of limitations. This judgment significantly altered the approach to environmental damage and civil redress, as numerous legal disputes across Brazil had seen the Public Prosecutor’s Office argue that claims for damages arising from environmental harm were not subject to a statute of limitations. In contrast, environmental lawyers contended that such claims were subject to a statute of limitations, with the absence of a time limit being the exception rather than the rule.
This decision completely shifted the approach of both urban and rural entrepreneurs, as well as public managers, who became even more stringent in their resolutions.
Biodiversity
With Brazil’s vast biodiversity, how do you ensure compliance with both national and international environmental regulations?
Brazil has demonstrated a strong commitment to environmental protection by aligning its domestic policies with international standards. The country employs various mechanisms to ensure compliance with environmental regulations:
– Adherence to international treaties: Brazil is a signatory to numerous global environmental agreements, including the Paris Agreement and the Convention on Biological Diversity;
– Robust legislation: Brazilian environmental laws, including the National Environmental Policy Law and the Forest Code, establish guidelines for environmental protection and the sustainable use of natural resources;
– Government agencies and oversight: IBAMA, the Ministry of the Environment (MMA), and state environmental agencies are responsible for enforcing environmental laws, applying penalties, and ensuring compliance;
– Monitoring and reporting: Systems like INPE and SIRENE track deforestation and greenhouse gas emissions, providing data for international reports;
– International cooperation: Brazil engages in collaborative programs with other countries and international organizations, including the Sustainable Amazon Initiative;
– Participation in multilateral forums: Brazil actively engages in forums like the COP, advocating for its positions and negotiating targets;
– Judiciary: In addition to national legislation, the Brazilian judiciary relies on international treaties to issue rulings that protect the environment.
Recent Trends
What trends are you seeing in environmental compliance enforcement in Brazil, particularly with regard to sustainable development?
Investor pressure, demand for sustainable products, the need to meet international commitments, and financing linked to environmental compliance are all driving the adoption of environmentally sustainable practices. In my view, the key trends include:
– Adoption of ESG practices: Brazilian companies are integrating environmental, social, and governance (ESG) criteria into their operations, driven by investor demand and the pursuit of greater competitiveness in the global market;
– Circular economy: Reducing waste and optimizing resource use are becoming top priorities, with companies increasingly investing in recycling, reuse, and innovative business models;
– Transition to renewable energy: The country is progressing in its adoption of clean energy sources, fueled by government incentives and the need to lower greenhouse gas emissions;
– Carbon credit market and related initiatives: Brazil has the potential to become a global leader, supported by reforestation projects and other carbon offset initiatives;
– Technological innovation: Technologies like satellite monitoring are enhancing environmental oversight and compliance with laws and regulations;
– Payments for environmental services: Programs that compensate rural landowners for conservation practices are expanding, promoting nature preservation;
– Sustainable agribusiness: The agricultural sector increasingly adopts sustainable practices while pursuing environmental certifications.
Environmental Protection
How do you approach balancing the needs of economic development with environmental protection in your legal practice?
Aware that balancing economic development and environmental protection is a daily challenge, even in legal practice, the team at Aceti Advocacia operates on multiple fronts, from legal consulting on compliance to defending lawsuits, all while keeping these two fundamental goals in focus. We regularly assess the client company’s needs and potential risks to identify the best tools for protecting both the client and the environment.
We support and advise professionals involved in environmental licensing to ensure our clients operate safely and without interruptions. Furthermore, we guide the ongoing pursuit of environmental and quality certifications to demonstrate that the company and its products are sustainable and stand out in the market. We also promote the continuous adoption of clean technologies and the development of sustainable production chains. We act and advise caution in situations of uncertainty regarding the environmental impacts of a given activity (Precautionary Principle) in the client’s and the environment’s best interest. These are examples of the holistic approach that an environmental lawyer should embrace.
Deforestation and Pollution
What role do environmental law and litigation play in addressing issues like deforestation and pollution in Brazil?
It is important to mention that natural and planted forests cover fifty-nine percent (59%) of Brazil’s territory and that Brazilian agribusiness entrepreneurs, contrary to common perception, are natural environmentalists. They are the ones who most preserve the environment and the soil. Without these efforts, Brazil would not be able to produce such a large amount of food or be a global leader in agriculture.
– With these considerations in mind, deforestation and pollution are being addressed through the following measures:
– Strict legislation: As previously mentioned, our laws are both comprehensive and stringent;
– Supervision and law enforcement: Environmental agencies and the Public Prosecutor’s Office work to supervise and enforce laws, using tools such as fines, lawsuits, and Consent Decrees (TACs).
– Accountability for offenders: The Brazilian legal system imposes administrative and criminal sanctions on those who violate environmental laws, along with mechanisms for redressing damage caused;
– Prevention and mitigation of impacts: Environmental licensing and the requirement for recovery plans for degraded areas are key mechanisms used to prevent and mitigate the environmental impacts of economic activities;
– Protecting sensitive areas and vulnerable communities: our legislation protects areas such as indigenous and quilombola lands, including guarantees the protection of public health;
– Combating illegal deforestation: Environmental litigation is a crucial tool in addressing illegal deforestation, particularly in the Amazon;
– Involvement in the international arena: Brazil aligns with international environmental agreements, and its national environmental laws contribute to achieving these goals.
Legal Evolution
How has your role as an environmental lawyer evolved over the years, and what future developments do you foresee in this field?
Aceti Advocacia is a boutique firm, small and specialized. I founded the firm, and my wife, Maria Flávia, is my partner. Our eldest, Lucas, is already part of the team, while our youngest, Enzo, is currently a law student and will be joining us soon. We also have additional lawyers in the firm who support us in assisting our clients.
Since beginning my career in 1993, study has been a constant in my life, and this passion has fortunately extended to my wife and children. Continuous learning and a commitment to delivering excellent service are the driving forces behind quality work. When paired with new technologies, technical expertise helps streamline and accelerate daily tasks.
Over the past 30 years, I have seen Environmental Law evolve from its infancy into a field of growing prominence and significance. It has progressed from being associated with a small group of environmentalists to occupying its rightful place in society. People need to live in a healthy environment that ensures economically sustainable living conditions. In this context, environmental lawyers are becoming increasingly vital, bearing significant responsibility, as entrepreneurs will more frequently seek their expertise to ensure safety and quality in their operations and fulfill their societal roles.
Luiz Carlos Aceti Junior
Aceti Advocacia
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