Environmental enforcement and the rule of law in Brazil

Brazil, like many other developing countries, has suffered from the “gap” problem of environmental law: written laws are strong but their implementation and enforcement are weak. In Brazil, however, a new type of environmental enforcement appears to be making people pay greater attention to environmental laws. Beginning in the 1980s, Brazilian public prosecutors became active in environmental enforcement. They began investigating environmental problems and suing to impose civil and criminal penalties for environmental harms. They started acting as “watchdogs” over the decisions and actions of environmental agencies. They took on a new role as the legal advocates of citizens and civil society organizations concerned about environmental problems. The present research describes and analyzes how this “prosecutorial mode of enforcement” has reshaped environmental enforcement in Brazil. The prosecutorial mode of enforcement contributes to the construction of environmental “rule of law” in Brazil. Environmental law became law that mattered, law that people considered in their everyday decisions and actions. With the active involvement of Brazilian prosecutors, both private and public actors relevant to environmental enforcement began to take environmental law more seriously. The regulated community became worried about legal compliance; environmental agency officials became attentive to the letter of the law; and citizens were increasingly able to use the law to challenge the actions of others, including the government itself. These effects of the prosecutorial mode of enforcement, however, are not experienced to the same degree throughout Brazil. In the two Brazilian states considered in this research, São Paulo and Pará, prosecutorial institutions differed in the extent to which they are energetic and effective actors in environmental enforcement. In São Paulo, state prosecutors were highly energetic but their effectiveness was plagued by a lack of prioritization and coordination, institutional conflict with the environmental agency, and delays in the judicial resolution of enforcement actions. In Pará, the small number of federal prosecutors working in the state had developed a much more energetic and effective practice of environmental enforcement than state prosecutors, who were limited by a lack of independence from the state executive branch. The research concludes that, in spite of this variability, the prosecutorial mode of enforcement constitutes a model for other countries that suffer from the “gap” problem of environmental law, particularly Latin American countries that share many political, economic, and legal-cultural characteristics with Brazil.