STJ admits compensation for environmental damage even without proof of damage

Violation of the principles of prevention and precaution is enough to condemn polluting agents to compensate for the damage caused to the environment.

Thus, the 2nd Panel of the Superior Court of Justice reinstated the sentence that condemned a club and a restaurant for irregular discharge of sewage into the Capibaribe River estuary, in Recife.

The collegiate overturned the ruling of the Federal Regional Court of the 5th Region (TRF-5) which had removed the conviction due to the lack of expertise on possible environmental damage.

Understand the case

According to the public civil action filed by the Federal Public Ministry (MPF), a club created irregular landfill in the reefs that give access to the Parque das Esculturas, a tourist attraction in the capital of Pernambuco. Furthermore, a restaurant operated by a third party operated at the club, which illegally discharged sewage into the Capibaribe River.

In the first degree, the defendants were ordered to pay compensation for environmental damage and collective moral damages, in the amounts of R$20,000 and R$15,000, respectively. However, the TRF5 changed the sentence because it understood that, despite the infringement being proven, the absence of technical proof regarding the damage would render the demand unfounded.

Administrative risk

When analyzing the MPF's appeal, Minister Francisco Falcão highlighted that article 225 of the Federal Constitution establishes that the obligation to protect the environment is not only the responsibility of the public authorities, but of the entire community.

He also cited article 14, paragraph 1, of Law 6,938/1981 , according to which polluters are responsible for compensation or repair of environmental damage, regardless of the existence of fault.

The minister pointed out that civil liability for environmental damage, in this case, is based on the theory of administrative risk and arises from the polluter pays principle, which holds the polluter — the one who internalizes the profits — responsible for the impact caused to the environment. .

“In view of the principles of precaution and prevention, and given the high degree of risk that the activity of dumping waste, through the irregular release of sewage — without any treatment and in an area close to the location of reefs — represents for the environment , the absence of technical proof by the plaintiff does not make it impossible for the defendants to recognize the duty of environmental repair”, concluded the minister when reinstating the sentence.

With information from the STJ press office. REsp 2,065,347

Source: LEGAL CONSULTANT website