Making Law Matter: Environmental Protection and Legal Institutions in Brazil - Hardcover

Mcallister, Lesley K.

Hardcover

ISBN 10: 0804758239 ISBN 13: 9780804758239

Verlag: Stanford University Press, 2008

Inhaltsangabe

Although many developing countries have environmental statutes, regulations, and resolutions on the books, these laws are rarely enforced and often ignored. Making Law Matter presents the first book-length treatment of an innovative prosecutorial institution, the Brazilian Ministrio Publico, which refashioned itself in the 1980s into a powerful defender of citizen rights in environmental protection, as well as in other areas of public interest such as disability rights, consumer protection, and anticorruption.

In Brazil, the offices of prosecutors and courts have become an important forum for resolving environmental conflicts, making environmental law more effective than in the past. Court involvement communicates the end of impunity for violators. It increases the accountability of governmental agencies and provides legal access for citizen complaints. In short, it enhances environmental rule of law. As developing countries continue to seek to reform their legal systems to strengthen democracy and the rule of law, the Brazilian Ministrio Publico must be recognized as a very promising model.

Über diesen Titel

Über die Autorinnen und Autoren

Lesley K. McAllister is Associate Professor at the University of San Diego School of Law and Assistant Adjunct Professor at the University of California, San Diego, School of International Relations and Pacific Studies.

Lesley K. McAllister is Associate Professor at the University of San Diego School of Law and Assistant Adjunct Professor at the University of California, San Diego, School of International Relations and Pacific Studies.

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

Making Law Matter

Environmental Protection and Legal Institutions in Brazil

By Lesley K. McAllist

STANFORD UNIVERSITY PRESS

Copyright © 2008 Board of Trustees of the Leland Stanford Junior University
All rights reserved.

ISBN: 978-0-8047-5823-9

Contents

Title Page, 
Copyright Page, 
Dedication, 
Table of Figures, 
Preface, 
Acknowledgments, 
Abbreviations, 
1 - Environmental Protection and the Rule of Law, 
2 - Strong Laws, Weak Agencies, 
3 - Becoming Environmental Prosecutors, 
4 - Confronting Impunity, 
5 - Making Agencies Accountable, 
6 - Making Justice Accessible, 
7 - Effective Enforcement: Brazil and Beyond, 
Reference Matter, 
Bibliography, 
Index, 

CHAPTER 1

Environmental Protection and the Rule of Law

THE STORY OF ENVIRONMENTAL LAW in developing countries is often a story of laws that fail to achieve their stated goals. Forestry laws guarantee preservation of rainforests while massive deforestation occurs. Clean water laws set forth rigorous standards as cities and factories dump untreated waste into rivers and streams. Constitutions grandly proclaim that a balanced ecological environment is assured to all citizens while cities grow uncontrollably into unlivable megacities.

Environmental law in developing countries is also often a story of failed regulatory agencies. The regulatory agencies that are charged with implementing and enforcing environmental laws are chronically underfunded and understaffed. Agency salaries tend to be low, and corruption is a constant concern. Regulatory approaches for pollution control and natural resource management that succeed in developed countries seem inadequate or unworkable. Environmental agencies in developing countries often do not have the capacity to implement and enforce the most basic and essential components of environmental law.

The existence of rigorous environmental protection laws and inadequate regulatory agencies, however, creates an opening for a new type of player in environmental protection: legal actors. Courts may be called upon to enforce laws in legal actions against entities that cause environmental harm, and possibly even against the governmental agencies responsible for regulating them. In countries as diverse as India, Kenya, and Colombia, environmentalists have had their day in court. And in response to environmental claims, courts in many developing countries have become increasingly active in the implementation and enforcement of environmental laws.

In the 1980s, Brazil's very independent prosecutors were empowered to file environmental enforcement actions against private actors as well as the government. From the state of São Paulo in the industrialized south to the state of Pará in the Amazonian north, public prosecutors began receiving public complaints about environmental problems, opening investigations, and filing civil and criminal actions for environmental harm. Prosecutors assumed this role based on a widespread perception that environmental laws and environmental agencies were failing. With a growing number of environmental cases in their dockets filed by prosecutors, Brazilian judges also became important actors in environmental protection.

This book tells an atypical story about environmental law in a developing country. It tells the story of how the involvement of legal actors in environmental protection in Brazil made environmental law more effective. It finds that the involvement of legal institutions — particularly prosecutors and courts — helped develop a robust, effective environmental regulatory system in Brazil. Legal institutions brought a degree of legal fidelity and sanctioning power that environmental regulatory agencies lacked, and prosecution of environmental cases worked to dispel the longstanding notion of impunity for environmental harm. Moreover, Brazilian legal actors adapted to their new role in environmental enforcement — they developed knowledge of environmental law and mechanisms to resolve environmental cases efficiently and effectively. Brazil stands as a model of how developing countries can empower their legal institutions to act in ways that make environmental law matter.

Environmental Regulation in Developing Countries

Environmental problems have significant political salience, and reforms to legal and institutional mandates in many countries have reflected this significance. Like Brazil, most Latin American countries have written the right to a healthy environment into their national constitutions. They have also created substantial environmental legal frameworks, with laws requiring the use of environmental impact studies, the establishment of air and water quality standards, the protection of natural areas, and other environmental protection policies. Environmental regulatory agencies now exist in most national and subnational jurisdictions.

Environmental regulation refers to the set of rules developed by regulatory agencies to implement environmental laws. The common wisdom is that environmental regulation in developing countries often does not work. As documented by the World Bank (2000: 1–2), regulators are often unable to enforce pollution standards at factories and there is "widespread recognition that traditional pollution regulation is inappropriate for many developing countries." Relatively little empirical research, however, has been done about the operation of environmental regulation in developing countries. Why are regulatory institutions in developing countries unable to enforce discharge standards at factories? What is it about developing countries that makes traditional pollution regulation inappropriate?

Environmental regulation fails in developing countries for many reasons. Often, the proximate cause involves the limited capacity of regulatory agencies (see Nef 1995; Mumme 1998). Regulatory agencies may lack staff, or the staff may be inadequately trained or equipped. They may not have the technical expertise to develop appropriate standards and conduct effective inspections. Agency staff may also be poorly paid, creating conditions for corruption. Often, environmental agencies are the poor relations among governmental agencies, and they are subject to interference by elected officials and more powerful agencies, particularly agencies responsible for economic development. As Brazilians say, environmental agencies frequently lack the "political will" to implement and enforce environmental laws (Findley 1988: 5).

More fundamentally, environmental regulation fails because of the mismatch in political strength between interests that oppose environmental regulation and interests that favor it. The targets of regulation tend to be organized and powerful while the societal beneficiaries of regulation tend to be diffuse and weak. Regulated entities may simply ignore their legal obligations, or they may develop strategic behaviors that enable them to avoid regulation, such as using their political connections to influence particular agency decisions or prevent environmental agencies from growing stronger (see Mueller 2006: 2).

The beneficiaries of environmental law — individual citizens and society as a whole — are often not knowledgeable about the law and their legal rights. They do not expect the law to be enforced and have little ability to affect the regulatory enforcement process. They are also likely to be more willing to trade off environmental quality for economic growth than their counterparts in...

Details zur Ausgabe

• Verlag: Stanford University Press
• Erscheinungsdatum: 2008
• Sprache: Englisch
• ISBN 10: 0804758239
• ISBN 13: 9780804758239
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 264
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: preigu; mail@preigu.de; ; Lengericher Landstr. 19; Osnabrück; 49078; Deutschland