THE MARIANA TRAGEDY IN BRAZIL AND THE ROLE OF THE JUDICIARY POWER BEFORE THE BRAZILIAN DOMESTIC AND


Abstract

This study aims to present the world with the largest Brazilian environmental tragedy and one of the largest planetary environmental disasters, namely the breaking of the dam of mining activity of tailings from Samarco companies, Vale and BHP Billiton in the city of Mariana, State Minas Gerais, which caused massive damage to the populations of several Brazilian cities, their ecosystems and, unfortunately, broke into the Atlantic Ocean causing deterioration of maritime waters.

Then, the study presents the world as the prosecutor of the states of Minas Gerais and Espirito Santo (Brazilian federal states), through civil class actions, caused the judicial branches of federal states, so companies were condemned outright to form a assets exclusively for the restoration of degraded environment and to compensation for damages suffered by the affected population.

However, demonstrate that federal prosecutors also acted with the same intent described in the previous paragraph, but provoking the Federal Judiciary.

As a matter of fact the actions of prosecutors of Minas Gerais, Espírito Santo and Federal and the immediate and commendable injunctions concessions determining the three to deposit more than two billion reais companies (about 500 million US dollars), several NGOs (non- governmental organizations) and citizens also filed hundreds of lawsuits for the same purpose described in the preceding paragraphs, before hundreds of local ordinances (counties) affected by toxic mud that covered more than 500 kilometers to reach the Atlantic Ocean.

In this scenario, they are handled in the Judiciary of Minas Gerais, Espírito Santo and Federal simultaneously hundreds and soon thousands (perhaps, millions) of remedial actions (collective and individual) due to the same event (dam break) demanding compensation for

damage suffered by individuals and by society because of individual damage (patrimonial and moral) and environmental degradation, respectively.

Obviously, these demands will provide enormous diversity of judicial decisions that certainly will present the authors a ground various legal opinions, causing legal uncertainty and possibly injustices.

To make matters worse, the United Nations (UN) criticized Brazil for the delay in the disclosure of adverse effects of the tragedy, underscoring the international interest in preserving the environment.

Therefore, we conclude that the disjointed performance of Judicial Powers of Brazil and hinder the indispensable fair response on the social and environmental damage, it is not enough to give the planet a satisfaction at the disaster caused by mining.

Keywords: Mariana Tragedy. Brazilian courts. Domestic and International Law.


Resumo

Este estudo objetiva apresentar ao mundo a maior tragédia ambiental brasileira e um dos maiores desastres ambientais planetários, conhecido como a ruptura da barragem de mineração de rejeitos de empresas Samarco, Vale e BHP Billiton, na cidade de Mariana, Estado Minas Gerais, que causou grandes danos às populações de várias cidades brasileiras, seus ecossistemas e, infelizmente, invadiu o Oceano Atlântico causando a degradação das águas marítimas.

Em seguida, o estudo apresenta ao mundo como as Promotorias dos estados de Minas Gerais e Espírito Santo, por meio de ações cíveis públicas, condenaram de imediato as empresas envolvidas para que as mesmas formassem um ativo exclusivamente para a restauração do ambiente degradado e a compensação por danos sofridos pela população afetada.

A Procuradoria Federal também agiu com a mesma intenção descrita no parágrafo anterior, contundo provocando a Jurisdição Federal.

De fato, as ações dos promotores estaduais de Minas Gerais, Espírito Santo e os federais resultaram em medidas liminares que determinaram o depósito imediato de mais de dois bilhões de reais das empresas (cerca de US $ 500 milhões de dólares). Várias ONGs (organizações não governamentais) e os cidadãos vitimados também apresentaram centenas de ações judiciais para o mesmo propósito descrito nos parágrafos anteriores, perante as centenas de pequenos distritos afetados pela lama tóxica que cobriu mais de 500 quilômetros até chegar ao Oceano Atlântico.

Neste cenário, os casos são apreciados pelo Judiciário de Minas Gerais, Espírito Santo e o Federal simultaneamente, em que centenas e logo milhares (talvez, milhões) de ações corretivas (coletivas e individuais), devido ao mesmo evento (quebra de barragem), demandarão a compensação por danos sofridos por indivíduos e pela sociedade, pelos danos individuais (patrimoniais e morais) e pela degradação ambiental, respectivamente.

Obviamente, estas demandas irão proporcionar uma enorme diversidade de decisões judiciais o que, certamente, irá causar aos autores incerteza jurídica e possivelmente injustiças frente às diversas opiniões jurídicas.

Por último, as Nações Unidas (ONU) criticaram o Brasil pelo atraso na divulgação dos efeitos adversos da tragédia, ressaltando o interesse internacional em preservar o meio ambiente.

Portanto, concluímos que a atuação desajustada dos Poderes Judiciais do Brasil dificulta a indispensável e justa compensação aos danos sociais e ambientais, e a mesma não é o bastante para a satisfação dos danos causados pela mineração.

Palavras-chave: Tragédia em Mariana. Tribunais brasileiros. Direito Interno e Internacional.


1 The tragic history of Mariana and the civil environmental responsibility in Brazil

Brazil is one of the richest countries in the planet as far as natural resources is concerned and in such context minerals play an outstanding role. Mining in Brazil ‘‘is followed by territorial occupation, having as its main aim the exploitation of mineral wealth’’ (CLEMENTE; LEITE; PEREIRA, 2013, p. 85).

According to Carlos Eugênio Gomes Farias (2002, p. 03), the history of Brazil itself, ‘‘has a close connection to the search for and application of mineral resources, which have always contributed to important inputs in the national economy, being part of the territorial occupation in the national history’’.

Nevertheless, the mining industry, ‘‘together with the development it provides for the country, is potentially degrading to the natural environment’’ (COSTA; REZENDE; 2012, p. 771).

Mining in itself, is an impacting industry, once it promotes the transformation of the physical, chemical and biological properties, in the environment it is inserted. Beatriz Costa Souza and Celso Antônio Pacheco Fiorillo (2012, p. 18), share the same opinion and recognize that ‘‘there is no way to hide that the mining exploration , somehow, can cause environmental damage, since there is no lack of risks in such economic industry, needless to say, in almost any economic industry whatsoever’’.

Unfortunately, companies such as SAMARCO, VALE and BHP have caused huge environmental damage on November 05, 2015, when the dams burst causing great loss and damage to people and the environment as the toxic mud with solid waste spread throughout the states of Minas Gerais and Espírito Santo.

The facts were thus summoned by Veja Magazine, one of most influent in Brazil1


On November 5, in only eleven minutes, a tsunami of 62 million cubic meters of mud has buried Bento Rodriguez. Ten deaths have been confirmed until the late afternoon of last Friday and eighteen people are missing. The wave has devastated other seven villages of Mariana municipality and has already contaminated the rivers Gualaxo do Norte, do Carmo and Doce. Inhabitants of towns in Minas and Espírito Santo have had their routines affected by the interruption of their water supply distribution. The final destination of the mud shall be the sea in Espírito Santo, where the River oce has its mouth. What caused such tragedy was the bursting of the two dams in the Alegria complex, from the mining company Samarco. The dams stored tailings, the non-toxic waste from iron- ore mining operations. There were three tailing dams in Alegria: Germano’s, Fundão’s and Santarém’s. All of these operated according to a traditional hydraulic landfill site used all over the world. It considers the action of gravity forces in order to enable to waste separated from the iron ore flow into the basins. The frontal section of such basins is made of sand so as to filter the water. The Public State Prosecution of Minas Gerais and the State Police Department has opened an inquiry to investigate and ascertain the causes of the disaster, but a satisfactory answer shall not be provided in six months. The main hypothesis raised by technicians, however, is that the process of liquefaction might have occurred, taking place when the outer sand layer, instead of expelling, retains the water. A sudden variation in the internal pressure of the waste deposit can transform the sand into mud, which cannot hold the waste behind any longer. This could explain why the Fundão dam burst — having devastated Santarém’s and whatever was ahead. Two low magnitude seismic waves registered in the region a little before the tragedy might have caused the change in pressure in the dam — such hypothesis also needs to be proved.2


Such damages, not yet measurable, have caused material and moral losses to thousands of human beings, and nonetheless, degrading to the artificial and natural environment.


The damages already caused and the possible damage

The damages caused by the facts above mentioned have not yet been measured and perhaps never will.

As a matter of fact, people and the environment have suffered and will continue suffering deterioration caused by the contamination with chemical products spread after the dams burst.

However, it can already been declared, on the grounds of the Agreement settled by the company that the following damages have occurred:


impact on habitats and on the ictiofauna along the rivers Gualaxo, Carmo and Doce, over 680 km of the rivers; b) alteration in the quality of water of such rivers due to the mud of mineral waste; c) discontinuation of public water supply distribution as a result of the EVENT on the impacted towns and localities; d) discontinuation of water collection as a result of the EVENT for economic industries, rural properties and small communities alongside the Rivers Gualaxo do Norte, Rio do Carmo and Rio Doce; e) silting of the river beds of Rios Gualaxo do Norte, Carmo and River Doce up to the reservoir in the dam of UHE Risoleta Neves; f) impact on neighboring ponds and natural water fountains alongside the river beds; g) impact on the aquatic and native vegetation; h)impact on the connection of tributary rivers and marginal ponds; i) alteration of the river flow as a result of the EVENT; j) impact over estuaries and mangroves in the mouth of the River Doce; k) impact in areas of fish reproduction; l) impact on areas of “nurseries” for replacement of the ictiofauna (areas for feeding larvae and juveniles); m) impacts on the trofic chain; n) impacts over the genie flow of species in water courses resulting from the EVENT; o) impacts on species with specificity of habitat (water rapids, sites, wells, backwaters, etc) in the River Gualaxo do Norte and the River do Carmo; p) casualties of specimens of the trofic chain resulting in the EVENT; q) impact in the condition of conservation of species already listed as under threat and inflow of new species in the rank of such; r) compromising the structure in function of aquatic and land ecosystems associated as a result of the EVENT; s) compromising fish stock, with an impact on fishing as a result of the EVENT; t) impact on the way of life of the riverside populations, estuary populations, aboriginal tribes and other traditional populations; u) impacts on Conservation Units.3


Actually, as mentioned above, the damages certainly cannot yet have been measured, neither are they confined in the listing above.

It can be assured that, for decades, new damages will be identified as a consequence of the bursting of the dams, besides, obviously, the impossibility of quantifying life, dignity and the environment economically.


1.2 Environmental liability in Brazil

In face of the tragedy described, with extensive personal and mainly environmental losses, there shall be liability charges to all those who somehow have contributed to the event.

What is important to mention, as far as Legal Science is concerned, is that Liability be defined, relentlessly, in the light of Environmental Damages in effect, worth mentioning, independently of proof of fault or fraud. In other words, even if the act was unintentional, all the same, even if lack of prudence might be ascertained, negligence





or inefficiency, all those who are somehow linked to the environmental damages, respond to civil liability, as we will demonstrate.

In the concrete case the issue is in the articles 5º, LXXIII; 20, II; 23, VI; 24, VI, VII and VIII; 129, III, 220, § 3º, II; 170, VI and, finally 186, II, explicitly demonstrated its concern with the Environment.

Despite the constitutional regulations listed in the previous paragraph, the article 225 of the Federal Constitution of Brazil, opened the chapter devoted to the Environment, such as:


Art. 225. All have the right to an ecologically balanced environment, as well as its essential use from the people and essential to a healthy quality of life, imposing itself to the Public authorities and to the community the duty to defend it and preserve it for the present and future generations.

§ 1º - To ensure the effectiveness of such right is the duty of Public authorities:

...

§ 3º - The courses of action and activities considered harmful to the environment subject the transgressors, be them individuals or

companies, to the legal and administrative sanctions, independently of the obligation to repair the damages caused.4


Based on the inexorable premises that the Environment is one of the most valuable legal assets to any human being, it can be concluded, on the grounds of fully established concepts, that anyone who by means of fraud or willfulness degrades environmental goods, even when in the exercise of ontologically licit however abusive, acts, shall be liable to such deterioration. Therefore, it has been broadly determined by the article 927 of the Code, as it determined that whoever commits an illicit act (arts. 186 and 187) and causes damage, is obliged to repair it.

Therefore, the only paragraph of the article 927, determines that “There Will be the obligation to repair the damage, independently of fault, in the cases established by the law, or whenever the industry normally developed by the agent of such damage implies, by its nature, risk to the rights of others”.

It can be seen in retro applications; thus it can be concluded that the Law has adopted the Objective Civil Liability whenever the degradation is a consequence of a risk activity.

It can be concluded, therefore, that in the Classic Legal Rights the theoretical grounds for the Objective Civil Liability and the Risk Theory. Thereby, in light of studies about Civil Liability, it has been assured that in the face of potentially damage




generating activities, the excessive concern over the full demonstration of the psychic aspect of the degrader – fault and fraud - should be driven away in order to value the quest for legal support of the victim, who should never be found in a situation which suffering has never been repaired.

In Environmental Law, which course of affairs this work focuses on, Civil Liability can be understood as a legal consequence from the degradation of the Environment.

Apart from the issue of its being widely harmful, the environmental damage has several other implications differentiating the civil damages themselves, as:

The damages are generally widespread, in other words, in normal circumstances, when environmental damage occurs nowadays, all the public, unidentifiably, is a victim of the degrader.

The environmental damage is normally inseparable, worth mentioning, the benefit of the doubt cannot be identified, as for the parcel of loss suffered by each individual affected;

Usually the damage is irreversible, meaning the repair of the degraded areas, so as to recreate the previous state of affairs for degraded areas, is not always feasible, by means of the technology we available;

It assumes a cross-border feature since it cannot be usually possible to identify exactly the regions suffering from degradation. A common example is the air pollution, which, certainly, does not cause damage to a restricted city due to the characteristics of the wind currents;

It has cumulative effects, once the degrading effects have not been stanched, much to the contrary, the damages affecting the environment are added to those previously generated, enabling a continuous degrading accumulation;

Difficulty to establish a causal nexus. This, certainly, is one of the most significant difficulties to press civil and liable environmental charges. The bond linking cause-effect, in other words, the need that the victim of the damage has to demonstrate that the loss suffered was a consequence of the action or omission of the supposed offender is crucial in liability charges. When speaking of environmental damage, proof is impossible to demonstrate practically. Examples can be provided such as in cases of air pollution in a specific industrial district where numerous industries

release toxic gases into the atmosphere. In these situations, hardly will it be accurately demonstrated which industry has caused the pollution generating damage to the city dwellers.

It can be demonstrated thus that the Environmental Damage deserves a diverse treatment from Civil Damage, considering that the good which is the matter of concern




and aimed at being protected, once deteriorated, will afflict all widespread and, many times, it will be impossible to regenerate.

However, there is raised a burning issue not quenched by the doctrine of jurisprudence, as follows: Brazil adopts the Theory of Generated Risk or the Theory of Entire Risk.

In the former, considering a supposed degrader could prove that the harmful event was caused by the exclusive fault of the victim – rare in terms of environmental issues, due to the broad characteristic of such good, single, random or major force fact caused by another party, it would be as an immediate consequence exempt of liability.

On the other hand, considering the Theory of Entire Risk, even if having been demonstrated the excluding illegalities described in the previous paragraph, the one who exercises any activity which, eventually, has a bond to an environmental damage, will incur in legal consequences.

Part of the Brazilian Doctrine considers that only by applying the Theory of Entire Risk shall the environment be protected, once the one who has degraded the environment shall be effectively protected, once the one who degraded the

environment shall always be held responsible, even if it proves it to be fortuitous, major force, or exclusive fault of the victim or others. In this sense, there is undoubtedly what Sergio Cavalieri Filho (2012, p. 154) highlights as the need to protect the environment, because for him “If it were possible to evoke the random or major force case as the excluding causes of civil liability for ecological damage, it would be foreign to the application of the law in most cases of environmental pollution.”

However, to a minority of scholars, it is possible that the defendant of a Compensatory Suit for Environmental Damage demonstrates the disruption from the Causal Nexus thus avoiding a sentence, this doctrine is called Theory of Created Risk.

The Superior Court of Justice of Brazil adopts, undoubtedly, the Theory of Entire Risk, unduly, thus, overruling any exclusion of Civil Liability, as stated bellow:


EDcl in the REsp 1346430⁄PR, Rel. Minister LUIS FELIPE SALOMÃO, Fourth Round, tried February 05, 2013, DJ and February 14, 2013.

Indeed, the STJ – Supreme Court of Justice – in recent trial followed by the Recurring appeal, n. 1.114.398⁄PR, rel. Min. Sidnei Beneti, asserted that “the liability for environmental damage is objective, informed by the theory of entire risk, having as a premise the occurrence of activities implying in risks to health and the environment, being the causality nexus the agglutinating factor allowing for the fact that the risk is integrated in the

unit of act which is the source of compensation, so that the one who explores the economic activity is placed in the position of guarantor of the environmental preservation, and the damages




concerning the activity will always be linked to such, therefore it is inappropriate for the party liable for the environmental damages to invoke safeguards excluding its civil liability , and therefore, such allegations are irrelevant to the discussion concerning the lack

of liability for exclusive fault of others or for other major forces.

(Grifos acrescidos)

Special Claim nº 1.175.907- MG, reported by the Minister Luís Felipe Salomão.

The jurisprudence of the STJ - Supreme Court of Justice- is firm, as far as the environmental damages are concerned , that the theory of entire risk is applicable , thus resulting in the objective nature of

liability, with express constitutional and legal anticipation (art. 225, § 3º, of the CF – Federal Constitution) and (art. 14, § 1º, of the Law n. 6.938⁄1981), being, therefore, unfounded such allegations of lack of responsibility, being it enough, for such, the incidence of harmful results to mankind and the environment as a consequence of an action omission of the liable party. (emphasis added).5


It is worth highlighting that in a very similar case of the tragedy hereby reported , the Supreme Court of Justice of Brazil has made a statement:


THE LAW OF CIVIL LIABILITY AS A RESULT OF ENVIRONMENTAL DAMAGE CAUSED BY THE COMPANY RIO POMBA CATAGUASES LTDA. IN THE MUNICIPALITY OF MIRAÍ-MG. RECURRING CLAIM (ART. 543-C OF THE CPC AND RES. 8/2008-STJ).

Regarding the accident which happened in the municipality of Miraí-MG, in January 2007, when the company Mineração Rio Pomba Cataguases Ltda., during the exercise of its entrepreneurial activities, leaked about 2 billion of residual

waste of toxic mud (bauxite), such material reached kilometers of extension and was spread to the cities in the state of Rio de Janeiro and Minas Gerais, leaving countless families homeless and without shelter and their assets -personal belongings and estate: a) the responsibility for environmental damage is objective, informed by the theory of entire risk, considering that the causality nexus is the agglutinating factor allowing for the fact that the risk is agglutinated with the unit of the act , being totally unfounded the allegation of the responsible company for the

environmental damage, exclusion of liability to divert its obligation of loss compensation; b) as a result of the accident, the company must make up for the material and moral damages caused; and




c) the fixation of compensation for moral loss, it is recommended that the arbitration be analyzed case by case with moderation, proportionally considering the level of guilt , the socioeconomic level of the agents, and, still, the size of the defendant company, abiding the judge by the suggested criteria of the jurisprudence doctrine , reasonably, applying experience and common sense , focused on the reality of life and the peculiarities of each case, so as to , on the one hand , not allow for unreasonable financial gain from the part of those compensated and, on the other hand, enable compensation for moral loss experienced by those who have been harmed. As a matter of fact, regarding environmental damages, the theory of entire risk, as a result of the objective liability feature, with expressive legal and constitutional anticipation (art. 225, § 3º,

of the CF) (art.14, § 1º, of the LAW 6.938/1981).6


It can be concluded, indeed, that the jurisprudence of the Superior Court of Justice of Brazil effusively proclaims that the Theory of Entire Risk must be considered, being, though, important to assure that the discussion over the random, major force fact or even fault of others is absolutely irrelevant to any civil or criminal liability which may arise from a conduct like the one in discussion.

Nonetheless, the seriousness of the environmental damage is - due to the characteristics mentioned above - infinitely greater than a mere liable damage, as the one resulted, e.g., from property as a result of vehicle accidents or the collapse of some construction.

Eventually, it is such essential good to human life that is being addressed that it is unmistakably priceless.

Moreover, certainly, the reproachable attitude of those who deteriorate the environment, mainly for fraud or fault, it is considerably greater than the liable damage.

In this standard, the Theory of “Punitive Damage” arises, which can be explained as the possibility to use the Civil Liability as a tool for punishment of those perpetrating the damage.

Thus, besides being sentenced to repair the damage caused, as, for example, reforestation of burned Woods, demolishing construction in a protected area, cleaning a polluted water source, should the degrader be condemned to a punitive pecuniary sanction.

In other words, the value arbitrated by the magistrate should encompass two elements: the first, only taking into account the attempt to quantify the loss suffered in face of the measurement of the damage and another, further, the magistrate should