An Overview of Environmental Justice in Brazil

In this regard, Michael Asimow conceives of front-line decisions as the initial stage of administrative adjudication, defined as “the entire system for resolving individualized disputes between private parties and government administrative agencies”. The front-line decision is the initial decision, “the first agency proceeding that allows the private party a formal opportunity to present its case and challenge the “front-line” determination of the agency staff”, apt to become firm and final unless challenged at a higher hierarchical level.

Michael R. Asimow, Five Models of Administrative Adjudication. 63, Am. J. Comp. Law 3, 4–6 (2015).

“Judicial deference” has to do with the intensity of the judicial review of the administrative decision. According to Eduardo Jordão, it refers to “the courts adopting an attitude of self-restraint when reviewing administrative decisions”.

Eduardo Jordão, Controle judicial de uma administração pública complexa: a experiência estrangeira na adaptação da intensidade do controle 50 (2016) (Braz.).

U.S. Supreme Court case law evolved with the Mead case of 2001,

United States v. Mead Corporation, 533 US. 218 (2001).

According to the Chevron doctrine, judicial deference is based on the idea of separation of powers, which enables various possibilities of institutional arrangements. With the rise of the administrative state, the arrangement now includes a delegation of authority by the Legislative to the Executive branch to interpret norms that it is responsible for enforcing, whether the delegation is express or implied. In this context, it is incumbent on the Judiciary to act in such a way as to foster the balance among the political powers.

Anne Oakes, Judicial Deference & the Administration: Are UK/US Parallels Feasible?, 22 Revista Juris Poiesis 307, 307–311 (2019) (Braz.).

Another point that should be noted about the U.S. definition of judicial deference is that it finds its justification in the agency's technical capabilities. If the agency were not specialized in the subject matter of the interpreted norm or did not display technical expertise, there would be no reason to defer to the agency's interpretation.

Ilaria Di-Gioia, Administrative Deference in the United States: Kisor and the Consolidation of Auer Jurisprudence, 22 Revista Juris Poiesis 328, 328–32 (2019) (Braz.).

In Brazil, Gustavo Binenbojm tried to systematize the parameters guiding the proper degree of judicial deference to administrative decisions as follows:

I) the greater the degree of objectivity that can be derived from the administrative rules pertaining to the hypothesis under examination, the more intensive the degree of judicial review should be. […] II) the greater the degree of technicality of the subject matter decided upon by the experienced expert agencies, the less intensive the judicial review has to be. […] III) the greater the political nature of the subject matter decided upon by the duly elected agents (Chief of the Executive branch and Congressmen, for example), the less intensive the judicial review should be. […] IV) the greater the degree of effective social participation (whether direct or indirect) in the deliberation process that gave rise to the decision, the less intensive the judicial review should be. […] V) the more restrictions are imposed on fundamental rights […], the more intensive the degree of judicial review should be.

Binenbojm, supra note 15, at 253–254.

Judicial activism may be thought of as the “exercise of the adjudicative function beyond the limits imposed by the legal system itself”, by invading the areas of authority of another Branch. That characterization of judicial activism is directly related to the institutional role assigned to the Judiciary in every legal system. Generally speaking, in civil law systems, where case law is not considered to be a formal source of the law and adjudicative activity should be kept within the existing statutory framework, it is easier to identify judicial activism than in common law systems, where case law and precedents function as a creative source of the law.

Elival da Silva Ramos, Ativismo Judicial: Parâmetros Dogmáticos Capítulo I, Seção III (2 ed. 2015) (Braz.).

Judicial activism should not be confused with the judicialization of policy-making, which is a trend that:

[...] far from weakening the party system, [...] tends to strengthen it, insofar as it helps to create a bond (albeit mainly in the field of law and legal procedures) between representative democracy and participatory democracy, which is contributed to by “ações populares” (actio popularis) in which the citizenry has legal standing to sue authorities.

Luiz Werneck Vianna et al., A Judicialização da Política e das Relações Sociais no Brasil 43 (2 ed. 2014) (Braz.).

Thus, the judicialization of policy-making would exercise a counter-majoritarian function in which the Judiciary would be responsible for revealing “the general will of the people implicit in positive law”.

Id. at 38.

According to the systematic analysis proposed by the authors, most of the conflicts that give rise to environmental claims before the courts are based on one of the grounds discussed below.

This primarily concerns issues that are inherent in the collision of fundamental rights and involve an agency's exercise of its discretionary powers in making difficult choices between favoring the environment, on the one hand, or economic development, on the other.

The Federal Supreme Court has already been called upon to settle various situations of conflict, where the Court gave priority to one principle or the other depending on the circumstances of the specific case. In the case ADI 3540 MC/DF,

Relator: Min. Celso de Mello, Tribunal Pleno, j. 01 Set. 2005 (Braz.).

In another emblematic case, the Supreme Court recognized the constitutionality of decisions prohibiting the importation of used tires, giving priority to environmental protection to the detriment of the free exercise of such economic activity, which is considered harmful to health and to the environment due to the toxicity of the raw material and increase in the accumulation of solid waste.

STF, ADPF 101/DF, Relatora: Min. Cármen Lúcia, Tribunal Pleno, j. 24 Jun. 2009 (Braz.).

The Supreme Court case law noticeably oscillates back and forth when it comes to determining the sustainability model that is supposed to reconcile environmental protection with economic development. Although such an assessment involves assigning different weights to each of the conflicting interests according to the circumstances of the specific case, the decision-making process underlying the solution adopted is often insufficiently explained. This prevents assessing the weights assigned to each of the conflicting interests which, in turn, makes it difficult to elaborate objective parameters applicable in subsequent decisions, to the detriment of legal certainty.

Luísa Silva Schmidt, A Aplicabilidade da Economia Ecológica na Definição Jurídica do Desenvolvimento Sustentável especially items 2.1.1 & 2.2 (2020) (Braz.).

The other category of conflicts involves a collision of fundamental rights: environmental protection versus legitimate expectations.

Legitimate expectations can generally be defined as the subjective aspect of legal certainty, which is intended to protect the confidence placed by individuals in the continuation of a certain type of behavior by the State, as defined by Almiro do Couto e Silva in his article “O Princípio da Segurança Jurídica” (The Principle of Legal Certainty).

Almiro do Couto e Silva, O Princípio da Segurança Jurídica (Proteção à Confiança) no Direito Público Brasileiro e o Direito da Administração Pública de Anular seus Próprios Atos Administrativos: O Prazo Decadencial do Art. 54 da Lei do Processo Administrativo da União (Lei 9.784/99), 237 Revista de Direito Administrativo 271, 272–274 (2004) (Braz.).

In practice, situations commonly occur in which the government, through municipal and non-specialized agencies, allows individuals to occupy areas that are protected by reason of their environmental characteristics, promoting the collection of taxes and providing essential services such as supplying water, electrical power and garbage collection. This raises expectations in the individual occupants that they will be allowed to continue occupying such areas on a regular basis, which conflicts with the actions, generally assigned to specialized federal and state environmental agencies, to enforce the regulations that prohibit such occupancy.

Although the case law of the Brazilian higher courts contains no precedents specifically involving the conflict between legitimate expectations and environmental protection, the latter (environmental protection) is generally given priority when it conflicts with other principles related to legitimate expectations. For example, according to Statement 613 of the Summary of Case Law of the Superior Court of Justice, “the theory of fait accompli cannot be applied to matters of Environmental Law”. The same Court has also held that no right can be acquired to the continuation of a situation that causes damage to the environment.

STJ, AgInt no REsp 1545177/PR, Relator: Min. Og Fernandes, 2ª T., j. 13 nov. 2018; REsp 1755077/PA, Relator: Min. Herman Benjamin, 2ª T., j. 17 out. 2018; AgInt no AgInt no AgInt no AREsp 747515/SC, Relatora: Min. Regina Helena Costa, 1ª T., j. 09 out. 2018 (Braz.).

Disagreements about the scientific-technical evidence, on which the authorities base the exercise of their discretionary powers, also occur very frequently in environmental claims.

In a situation in which there was no scientific consensus on toxicity, the Supreme Court gave greater weight to free economic initiative by holding that it was not feasible to force electrical utilities to reduce the electromagnetic field of transmission lines below the minimum height required by law.

STF, RE 627.189/SP, Relator: Min. Dias Toffoli, Tribunal Pleno, j. 08 Jun. 2016 (Braz.).

These are claims that challenge the granting or the refusal to grant an environmental license, or the absence of monitoring of licensing necessary to carry out a project or activity.

The environmental license is the administrative instrument that results from the licensing procedure and establishes the terms and conditions and compensatory measures that should be adopted to set up, operate and expand potentially polluting undertakings and activities (Art. 1º, I and II, of CONAMA Resolution 237/1997).

The licensing procedure generally encompasses three stages, namely, obtaining the preliminary license, the installation license, and the operating license. The preliminary license certifies approval of the project site and environmental feasibility; changes and measures may be required in subsequent stages. The installation license authorizes the entrepreneur to set up the undertaking or activity in accordance with the approved plan and the proposed changes, where applicable. Finally, the operating license authorizes the undertaking to go into operation once compliance with the conditions imposed in the previous stages has been verified (Art. 19, Decree 99.724/1990).

However, the environmental agencies often lack the operational capacity to complete the licensing procedure within a reasonable time and to monitor compliance with the conditions imposed. This situation ends up compromising their efficiency as a mechanism of environmental protection,

World Bank, Baseline Assessment of Proposals to Revise Federal Environmental Licensing in Brazil 9 (2016).

These claims challenge decisions to take disciplinary action against private individuals or civil servants for failure to comply with environmental legislation.

Disciplinary prosecution of a civil servant may be implemented either extrajudicially (when the administrative agency initiates disciplinary proceedings for dismissal and the civil servant in question challenges the decision to commence the proceedings) or judicially (when the administrative agency initiates a judicial improbity action (ação de improbidade), requesting removal from office, and the civil servant's challenge takes on the form of his defense).

An improbity action is a judicial instrument for protection against administrative misconduct. According to the express provision of §4º of Article 37 of the Federal Constitution, it is a non-criminal action aimed at imposing political penalties (suspension of political rights) and civil penalties (freezing of assets, compensation for damages and removal from public office) on those responsible for performing an act of misconduct. Law 8.429/1992 provides for three basic types of acts of misconduct, depending on whether the misconduct entails unjust enrichment (Art. 9º), causes losses to the public treasury (Art. 10) or violates the principles of public administration (Art. 11).

These are claims challenging a decision to revoke a license granted previously. According to Maurer, there are exceptions to the rule of the stability of administrative decisions because, unlike judicial bodies, which adjudicate disputes of third parties as a neutral forum, administrative agencies act as parties involved in their own cases, which means that administrative decisions do not provide the same guarantees of due process as judicial decisions. Besides that, the administrative decisions cannot offer the same resistance to change as judicial decisions because they have to adjust to the changing circumstances that gave rise to their enactment. The possibility granted to the administrative body to review its own decisions, and to revise them ex officio (when they were originally unlawful) or by reversing them (when, despite being originally lawful, changes in factual and/or legal circumstances would make it inappropriate to uphold its decision if certain circumstances provided for by law are ascertained), forms part of its administrative autonomy.

Hartmut Maurer & Christian Waldhoff, Allgemeines Verwaltungsrecht (20 ed. 2020) (Ger.).

In Brazil, the possibility of the agency annulling its own unlawful decisions ex officio was initially dealt with in Statement 473 of the Supreme Court Case Law Summary, published in 1969, according to which:

the administrative agencies may annul their own decisions if vitiated by defects that make them unlawful, because no rights can be derived from them; or else revoke them, for reasons of convenience or expediency, providing that any acquired rights are respected, and subject to judicial review in any case.

Articles 53 and 54 of Law 9.784/1999 adopted the jurisprudential orientation and set a 5-year limitation period in which to annul administrative decisions favorable to the addressees; the right of the administrative agencies to review such decisions lapses upon expiration of that period. The limitation period does not apply to administrative decisions that are unfavorable or restrictive vis-à-vis the interested parties, nor does it apply to favorable administrative decisions if the beneficiaries acted in bad faith, in which case the decisions may be annulled at any time, in principle.

Finally, there are civil liability claims for environmental negligence and failure to meet the requirements of an environmental license.

The compensation for environmental damage is characterized by various particularities in relation to the general theory of civil liability, by reason of the specific nature of the environmental asset for which compensation is payable. Such specificities include the absence of a limitation period on civil claims for compensation for environmental damage,

Ver supra note 43.

Such particularities provide for a broader range of options to demonstrate civil liability in environmental matters than in other subject areas. Thanks to the adoption of the integral risk theory, it is even possible to sue the contractor for civil liability for damage arising from an activity carried out in accordance with the terms of an environmental license, even if the license was granted by mistake.

STJ, REsp 1612887/PR, Relatora: Min. Nancy Andrighi, 3ª T., j. 28 Abr. 2020 (Braz.).

All these claims essentially have general effect, in view of the widespread nature of the right to a healthy environment. The intensity of the external effects produced by the decision generally has a scope conditional on the type of claim. Therefore, in terms of the effects, environmental claims are generally classified into claims of indirect general effect and claims of direct general effect.

An environmental administrative decision may be challenged because the license applicant disagrees with the version of the facts or evidence that the environmental agency associates with his license application. In such cases, the claim is limited to the applicant and the trend is for only the applicant to be interested in the question, which is therefore considered to be a claim of indirect general effect.

In contrast, a claim may be based on grounds related to the legality of an environmental regulation or with the constitutionality of an environmental law. In such cases, the individual claim naturally takes on broader contours, extrapolates the usual limits of a conflict that is typically individual, and also tends to be of direct interest to the whole community.

The first dysfunction is related to the failure of the drafters of the laws of civil procedure to consider the specificities of environmental claims. Environmental claims are collective administrative actions, which becomes especially obvious in connection with claims of direct general effect based on environmental norms (administrative regulations or laws) rather than on facts that only have to do with the applicant.

In Brazil, there is no general law on judicial review proceedings in matters of administrative law or on collective proceedings. In an effort to systematize the subject matter, the Ibero-American Institute of Procedural Law, coordinated by professors Roberto Berizonce (Argentina), Ada Pellegrini Grinover (Brazil) and Angel Landoni Sosa (Uruguay), published the “Model Code of Collective Proceedings for Ibero-America” in 2004.

Ada Pellegrini Grinover et. al., Código Modelo de Processos Coletivos para Ibero-América (2004) (Braz.).

In the field of administrative proceedings, the same Ibero-American Institute of Procedural Law, via a special committee coordinated by Brazilian professors Ada Pellegrini Grinover, as Chairwoman, and Ricardo Perlingeiro, as Secretary-General, prepared the “Model Code of Judicial and Extrajudicial Administrative Procedures for Ibero-America”

Ada Pellegrini Grinover et. al., Código Modelo de Processos Administrativos: Judicial e Extrajudicial – para Ibero-América. Instituto Ibero-Americano de Direito Processual (2012) (Braz.).

A procedural instrument is therefore needed allowing courts to issue decisions effective erga omnes, providing that, in a given claim, its grounds include administrative decisions of direct general effect. On a previous occasion, it was observed that:

[...] allowing diffuse and abstract review of a legal norm, granting several different courts the power of constitutional review of a law, would be something that could generate intolerable legal uncertainty, with decisions that are binding erga omnes, producing judgments that are res judicata and often inconsistent. With the same degree of legal uncertainty, the diffuse and abstract review of general and impersonal administrative acts, by allowing distinct and contradictory judicial decisions with respect to that category of administrative acts, would be capable of producing even more serious consequences, such as rendering unfeasible or contributing to the collapse of administrative activities and of the provision of public services that are essential to the community.

Ricardo Perlingeiro, A Impugnação Judicial de Atos Administrativos na Defesa de Interesses Difuso, Coletivo e Individuais Homogêneos, 7 Revista de Direito do Estado 255, 263 (2007) (Braz.).

In fact, one solution capable of reconciling legal certainty with the guarantees of due process of law in the resolution of collective disputes would consist in:

[...] granting standing to sue and be sued to effectively independent public agencies and concentrating jurisdiction in a single court, thereby avoiding a multiplicity of lawsuits and conflicting decisions.

Id. at 270.

Such a measure would prevent the atomization of individual lawsuits concerning issues that could be resolved collectively in the administrative sphere.

One example of the pernicious effects of the lack of a competent judicial body to centralize the resolution of environmental actions may be seen in the environmental disaster of Mariana, caused by the collapse of the mining tailings dam of Fundão in Minas Gerais, managed by the Samarco mining company, on November 5, 2015, causing 19 deaths, and dumping 62 million cubic meters of mining tailings into the environment, thereby damaging the Doce River ecosystem. This environmental disaster gave rise to several class actions, brought at both the state and federal level, by the State, Federal and Labor Public Prosecution Offices, representatives of the states concerned and the Federal Government, and civil society associations. The issues in dispute included compensation for damage to the natural and artificial environment (reconstruction of communities destroyed by the dam tailings), compensation for affected workers and fishermen whose livelihoods were impaired by water pollution, and the execution of preventive measures. In addition to the class actions, several individual actions have been proposed. The Court of Justice of Minas Gerais estimated that it has received approximately 50,000 individual actions questioning the water quality of Rio Doce.

Cíntia Paes, Processos e Acordos Marcam 30 Meses do Desastre da Barragem de Mariana”, G1 MG (05 Maio 2018) (Braz.).

In fact, in Brazil, “ações populares” (“actio popularis” or class actions in which standing to sue is universal) and actions concerning the standing to sue of the Public Prosecutor's Office are likely to result in court judgments that are effective erga omnes; nevertheless, such lawsuits are regulated by special procedural laws and based solely upon an issue of general interest, and neither prevent nor suppress the initiatives of individuals having a direct interest in the environmental issue. The absence of a stay of proceedings (lis pendens) between individual actions and collective actions may give rise to contradictory decisions and can lead to legal uncertainty.

The “ação popular” (actio popularis), whose origins date back to Roman law, is characterized by the citizens being granted standing to sue in their own name to defend interests that belong to them not individually but collectively, as members of the community. It is recognized by the constitutions of various countries, such as Portugal (Art. 52), Spain (Art. 125) and Italy (Art. 113).

Paulo Hamilton Siqueira Jr., Direito Processual Constitucional 359–360 (6 ed. 2012) (Braz.).

Among the actions in which standing as a party is granted to the Public Prosecutor's Office, which is the body constitutionally responsible for defending the public and social heritage, the environment, and other diffuse and collective interests (Art. 129, III, of the 1988 Federal Constitution), the “ação civil pública” (civil public action) stands out as a procedural instrument for collective protection regulated in Law 7.347/1985 and in Title III of Law 8.078/1990 (Consumer Defense Code). The subject matter of the civil public action is broad and includes any mass interest (diffuse, collective or homogeneous individual claims), even if not included within the scope illustrated by examples in Article 1º of Law 7.347/1985,

Art. 1^st. The provisions of this Law shall govern, without prejudice to the “ações populares” (actio popularis), liability actions for moral and material damages caused:

I – to the environment;

Single paragraph. The scope shall not include civil actions under public law to assert claims involving taxes, pension contributions, the Employee Severance Indemnity Fund (FGTS) or other institutional funds whose beneficiaries may be determined individually.

The above-mentioned inadequacy of the civil procedural law for implementation of environmental justice also leads to another dysfunction that compromises the quality of judicial decisions. In this respect, it should be recalled that judges who are members of the courts are not specialists in administrative law or environmental law, and that the courts have broad powers of review of environmental administrative decisions. The combination of generalist courts and the lack of specialized legislation exacerbates the poor quality of such judicial decisions.

According to the IACHR, the guarantees of due process instituted by the ACHR are closely related to the concept of justice, so that due process of law should be addressed not only from a purely formal perspective but also from a substantive point view that includes the quality of the judicial decision. Thus, the guarantees of due process should ensure that fair trial will be obtained, in which the decision adopted to resolve the dispute ensures the highest possible level of legal correctness.

Rights and guarantees of children in the context of migration and/or in need of international protection. Advisory Opinion OC-21/14, Inter-Am. Ct H. R. (Series A) No.21, § 109 (Aug. 19, 2014); Case of Ruano Torres et al. v. El Salvador. Merits, Reparations and Costs, Judgment Inter-Am. Ct H. R. (Series C) No. 303, § 151 (Oct. 5, 2015).

The “quality of a decision” is a vague concept that is difficult to measure. Nevertheless, the minimum required contents can be identified, including legality, effectiveness, efficiency and legitimacy. Legality refers to the jurisdiction of the decision-making authority, to an accurate evaluation of the relevant facts and to the convergence of the decision with the legal norms in force on the subject matter. Effectiveness means the extent to which the decision contributed to achieve the proposed purpose, whereas efficiency requires that purpose to be achieved at the least possible expense. Finally, legitimacy has to do with the subjective perception of the public affected by the decision and is influenced, for example, by the level of participation that is ensured to the public concerned, and by the quality of the arguments used to justify the decision. Moreover, legitimacy influences the acceptance and observance of the decision by the addressees.

M. Herweijer, Inquiries into the Quality of Administrative Decision-Making, in: Quality of Decision-Making in Public Law 11, 11–27 (K. J. De Graaf; J. H. Jans; A. T. Marseille & J. De Ridder eds., 2007).

In this context, the judges put in charge of judicial review in environmental matters are often unaware of the specific environmental laws and regulations. Instead, they tend to apply principles of private law, focusing on the two-party nature of the dispute to the detriment of the underlying public interest.

Ricardo Perlingeiro, Administrative Functions of Implementation, Control of Administrative Decisions and Rights Protection, 10 Br. J. Am. Leg. Studies 1, 5–6 (2021).

The third dysfunction of the environmental justice system is likewise related to quality, but the quality not just of judicial decisions but of administrative decisions, as well.

In Brazil, the administrative decisions subject to judicial review are based on technical reports prepared by the same individuals who are interested in obtaining a license, and the civil servants in charge of decision-making are not always properly qualified to check the validity of such technical evidence.

The Federal Constitution (Art. 225, §1º, IV) requires performing a preliminary environmental impact assessment during the licensing procedure whenever the planned activity is capable of causing what is considered to be a significant amount of environmental damage.

Before that, Law 6.938/1981 already listed the environmental impact assessment as one of the instruments of the National Environmental Policy (Art. 9, III), and it was up to CONAMA (the National Environmental Council), as an advisory and decision-making body attached to the Ministry of the Environment, to order, as necessary, studies of possible alternatives and the environmental consequences of public and private projects, as well as the respective reports (Art. 8, II).

To establish the general guidelines for the Environmental Impact Assessments, CONAMA issued Resolution 1/1986, in which it stipulated that the minimum required content of the Environmental Impact Assessments (EIA) must include the environmental diagnosis of the area impacted by the project and an analysis of the project's environmental impacts and the alternatives; the specification of measures to mitigate the negative impacts, and the preparation of a follow-up and monitoring program (Art. 6). The Environmental Impact Report (EIR) must state the conclusions of the EIA's and contain at least the objectives and justifications of the project, as well as description of it and of alternative technologies and sites; the summary of the results of the environmental diagnosis studies of the project's area of influence; the description of the probable environmental impacts resulting from the performance and operation of the planned activity; a characterization of the future environmental quality of the area of influence; the description of the expected effects of the mitigating measures on the negative impacts, including those that are unavoidable; the program for the following up and monitoring of the results; and recommendations as to the most favorable alternative (Art. 9º).

Article 3 of CONAMA Resolution 237/1997 has already established that the Environmental Impact Assessment (EIA) and the corresponding Environmental Impact Report (EIR) must be conducted by legally qualified professionals, at the entrepreneur's expense. According to Article 11, the entrepreneur and the professionals who sign the assessment are liable for the information provided. Thus, a professional hired and paid by the license applicant prepares the EIA/EIR.

On the other hand, the agency employees in charge of assessing the accuracy of the EIA/EIR do not necessarily have to be a trained expert in environmental engineering. According to Law 10.410/2002 on the careers of Environment Analysts, the position of Environmental Analyst is associated with environmental licensing and auditing activities, among others (Article 4º), and such analysts are required to hold a university degree or legally equivalent qualifications. If specialized training is required, that fact will be mentioned in the announcement of the entrance exam (Art. 11, §§2, I, and 3). In any case, the latest announcement of the public competition for Environmental Analyst positions at IBAMA stated that candidates need only be university graduates, without requiring any specific training.

IBAMA, Edital 1, de 29 de Novembro de 2021, item 2.1 (Braz.).

Thus, in such cases, administrative decisions lack legitimacy and objective impartiality, and undermine the credibility of the front-line decision-makers in the eyes of the administrative adjudication authorities, the courts and society, even at the international level, which is problematic in light of the need to structure the administrative agencies in such a way as to honor Brazil's environmental commitments.

For example, one may mention here the obligations arising from the ratification of the Paris Agreement under the United Nations Framework Convention on Climate Change (implemented nationally in Brazil by Decree 9.073/2017), requiring the signatories, among other things, to develop objectives for the reduction of greenhouse gas emissions.

Moreover, the courts are noticeably ill at ease when ruling on environmental cases involving highly technical issues, because the judges and administrative adjudicative bodies rarely have qualifications that are equal to or greater than those of the front-line decision-makers in environmental matters. In general, the courts and such adjudicative bodies lack specialized technical support and the specific training required to review the technical evidence. This is a widespread problem in procedural law, but it is intensified in environmental law, since a large part of such disputes can only be resolved by means of technical evidence.

By the way, in England and Wales, degrees in engineering, architecture or planning are generally held by the members of Planning Inspectorates, which perform a function similar to that of an administrative environmental tribunal, hearing appeals against the rejection of applications for environmental licenses or permits or appeals against additional requirements added to such licenses or permits.

Richard Macrory, Environmental Courts and Tribunals in England and Wales – A Tentative New Dawn, 3 J. Court Innovation 61, 63 (2010).

In this context, in Brazil, inadequate technical evidence (in administrative and judicial proceedings) may create a considerable lacuna in environmental adjudication, since there are no authorities authorized to make up for the absence of such evidence.