Access to Environmental Justice in Brazil

Abstract

This article aims to show how equal access to environmental justice occurs in Brazil, even with litigants in inequality, discrimination in the environmental matter, problems with interpretation of the law and little jurisprudence and information. The increase in access to justice in Brazil is evident including in the environmental area. With access to justice, we must understand the two basic principles of the legal system: that the system has to be equally accessible to everybody and that it produces individually and socially fair results. It is not just the simplistic conceptualization of the number of lawsuits. True access to justice is achieved once the rights of the population are effectively guaranteed. The number of environmental lawsuits has been increasing each year, mainly due to the Brazilian Federal Constitution of 1988. Article 225 provided the right for an ecologically balanced environment for present and future generations, and determined that the government and the community have a duty to preserve it.

In addition, the problems are not being adequately resolved at the administrative level. Access to environmental justice should be understood as access to the law, a fair, well-known and effective legal system, with access to the courts, alternative mechanisms (especially preventive ones), with the population materially and psychologically able to exercise their rights, by overcoming objective and subjective barriers.

For access to environmental justice, it is necessary to ensure appropriate procedural instruments are in place to address the conflicts in environmental protection, and to overcome barriers in accessing that protection.

In Brazil, some procedural instruments have been introduced to guarantee access to environmental justice. They are, mainly: “popular action” and “public civil action”. Both have a specific provision for admission with actions of this nature and it is important to highlight that they aim to protect mainly the collective rights and have been widely used in Brazil, facilitating citizens' actions. Also, they break down some barriers that hindered access to environmental justice, providing for non-condemnation in fees, non-payment of costs, payment for expertise only at the end of a matter by the losing party etc. Thus, this article seeks to demonstrate how access to environmental justice in Brazil has grown. Whilst not yet being the ideal, it is indicating how this situation can be reached. Some ways of increasing this access are pointed out, not only focusing on the number of lawsuits but also as a way of developing environmental law in search of the desired effectiveness.

Keywords: Access to justice, Environmental law, Appropriate procedural instruments, Effectiveness, Lawsuits