Chapter Author: Prescription in Environmental Civil Liability from the Perspective of Jurisprudence in Contrast with Legal Certainty

Book Description: The legal foundation of prescription lies in the constitutional principle of legal certainty, which is an important democratic mechanism. Prescription brings social peace and prevents the debtor from being indefinitely subjected to potential claims by the creditor, as outlined in the Civil Code, among other statutes. It is crucial to note that the national legal system generally mandates the use of prescriptive periods and exceptionally allows for cases of imprescriptibility, provided these are expressly stated in the Federal Constitution of 1988 (CRFB/88) or in a law deriving its authority from the CRFB/88. These considerations are fundamental for stabilizing legal and social relations. It is important to highlight that imprescriptibility is not presumed. The constituent, when necessary, explicitly provided for imprescriptibility: crimes of racism (art. 5, XLII); actions by armed groups, civilian or military, against the constitutional order and the Democratic State (art. 5, XLIV); and rights over indigenous lands (art. 231, § 4).

Despite this, some legal scholars and jurisprudence in Brazil have come to consider reparatory actions for environmental damages as imprescriptible. They argue this reflects the inclusion of environmental rights as fundamental rights (third generation/dimension) and the temporal indeterminacy of environmental harm. However, it should be noted that some scholars divide environmental damages into two aspects: (i) collective environmental damages are imprescriptible, and (ii) individual environmental damages are subject to prescription. The Superior Court of Justice (STJ) has adopted the thesis of imprescriptibility for actions aimed at repairing environmental harm in several rulings. In some decisions, however, the Court has distinguished between injuries to the "macro environmental good" of a diffuse and collective nature and those to the "micro environmental good" of a merely individual nature, a distinction recently upheld by the Supreme Federal Court (STF).

Despite the theories presented, we believe there is no constitutional or legal provision supporting imprescriptibility in environmental matters. Therefore, out of respect for the principle of legal certainty, general prescription rules should be applied to both individual and collective cases of environmental damage. Thus, the claim for reparatory damages for individual environmental harm is governed by private law, under the terms of the Brazilian Civil Code, and prescribes in 3 (three) years. In contrast, the claim for civil reparation of environmental damage in its diffuse conception, i.e., on behalf of the community, prescribes in 5 (five) years, according to Law No. 4,717/65, the Popular Action Law, applied by analogy to Public Civil Action (ACP) cases.

As explained, the Brazilian legal system does not allow doctrine and jurisprudence to add exceptions to prescription without normative support, a concerning trend that continues in repeated decisions by the STJ and the STF's ruling in RE No. 654.833. Therefore, it is important to emphasize the preservation of the principle of legal certainty, one of the fundamental principles for stabilizing social relations.

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