General environmental compensation rule: legal foundations and parameters

Resumen

This article analyzes the legal framework of environmental compensation under the perspective of Brazilian law. In addition to statutory environmental compensations expressly provided for in federal, state, and local laws, infralegal norms or environmental protection agencies can establish non-statutory compensations as conditions within the environmental licensing or authorization processes. This is because the concept of environmental compensation is not a matters of legal reserve. This power-obligation, exercised based on the technical discretion of public agents, is grounded in a general environmental compensation norm established by the Federal Constitution, international law, and current legislation. The purpose of environmental compensation is to maintain environmental balance, an inalienable right. The article further distinguishes between compensation and other instruments that implement the polluter-pays principle, including environmental civil liability, public pricing, environmental taxation, and punitive sanctions. It emphasizes the importance of regulating parameters for the establishment and quantification of environmental compensations, aiming at legal certainty and the objectivity of the environmental agency's actions. In this context, legal parameters are proposed for this purpose (adversarial process and full defense, transparency, proportionality, and motivation), as well as the consequences of this, such as the need for reassessment and/or requalification of compensation in case of changes to the licensed project or redefinition of the impact, and the requirement of locational proximity between the impacting project and the compensation destination. Finally, it is argued that the duty to provide grounds for non-statutory environmental compensations is more stringent than for statutory compensations.