Legal actions to protect the Amazon produce mixed results across the region

Some legal systems have a civil procedure that empowers a group of people to join forces to create a temporary entity (class), which they use to seek judicial redress from another entity, typically a corporation, for harm caused by an incident, product or service. Known as a ‘class action suit’, this type of litigation was pioneered in the United States during the twentieth century to address various forms of corporate misconduct and gross negligence. For example, they played a key role in forcing the energy companies to improve their operating procedures and to compensate individuals for damage caused by oil spills and toxic waste dumps. Considering the legacy of the extractive industries in the Pan Amazon, class action suits represent a potential strategy for financing the remediation of the environmental calamities that have accumulated over the past five decades.

All Pan Amazonian countries have incorporated aspects of this judicial concept into their civil codes; however, it has been deployed with mixed results, partly because of the region’s weak judicial governance.

In one of the highest-profile cases, inhabitants of Ecuador’s Sucumbíos Province sued Texaco, later acquired by Chevron, for compensation for harm caused by practices that polluted the region’s soil and water between 1965 and 1992. In a complicated series of judicial rulings across several jurisdictions, an Ecuadorian court ruled against the company in 2009 and levied a US$9.5 billion fine. Chevron rejected the court’s decision, alleging corrupt practices by the presiding judge, and appealed the decision in a US court. The company does not deny that its actions damaged the environment but claims it obeyed all legal requirements existing at the time of its operations and has fulfilled its obligations to the Ecuadorian people. Chevron has prevailed in multiple jurisdictions, including New York, Brazil and the Permanent Court of Arbitration at The Hague.

Civil litigation also failed to sanction negligence at the Omai Gold Mine in Guyana, where a tailings dam failure in 1995 released more than three million cubic meters of cyanide-laced effluent and heavy metals into the Essequibo River. A court in Canada, where the corporate owner was domiciled, declined to consider the case on jurisdictional grounds, while the Supreme Court of Guyana dismissed the case for lack of evidence.

Attempts to assign financial liability at the La Oroya metallurgical complex in Peru have been complicated by the lack of clarity in contracts among the parties, including the state-owned entity that sold the facility in 1993 to Doe Run Corporation, as well as the US-based corporation’s legal strategy to create a subsidiary and use bankruptcy laws to limit its legal liabilities. Although the Peruvian state (regulatory bodies and judicial system) failed to resolve the conflict, an international coalition filed a complaint in 2006 with the Interamerican Commission for Human Rights, which eventually referred the case to the Inter-American Court of Human Rights.

In April 2024, that court ruled that Peru had violated its citizens’ rights by failing to provide them with appropriate judicial protection as defined by Peruvian law. After 25 years of litigation, the ruling finally provided justice to the inhabitants of La Oroya. It also established a precedent in international jurisprudence by recognizing a state’s legal and fiscal responsibility when it (knowingly) fails to take action to mitigate or remediate an environmental crime that violates its citizens’ right to a healthy environment, which in Peru is guaranteed by the constitution.

Brazil has pioneered a comparable but distinct civil procedure known as Ação Civil Pública (ACP), which differs from class action litigation by focusing on the protection of collective rights, rather than providing compensation for a group of individuals whose rights have been violated. Rather than depending on the self-organization of the plaintiffs (usually catalysed by fee-seeking lawyers), the ACP approach stipulates that only institutions can initiate a lawsuit; these institutions can include governments (federal, state and municipal), autarchies (autonomous government entities), and public prosecutors and defenders, as well as certain civil society organisations that have operated in the pertinent sector for at least one year.

The legal strategy is most commonly used to protect consumers and employees, but it has also been used to litigate environmental, cultural and financial wrongdoing. The vast majority of ACP suits linked to environmental issues have been filed by public prosecutors, who have used the legal mechanism to extract monetary compensation for unlawful acts, such as illegal logging, forest code violations and wildcat gold mining. In a recent example, federal prosecutors negotiated a settlement with a timber company on behalf of an Ashaninka community in Acre, which was concluded after twenty years of litigation and more than forty years after the infraction.

The company agreed to a $R 12 million payment to compensate the Indigenous community for the non-sustainable harvest of mahogany from their ancestral lands in the 1980s, even though the illegal acts were committed before their territory was formally recognised in the 1990s.

There have been thousands of environmental ACP cases filed over the last thirty years, many by federal prosecutors working in collaboration with IBAMA to impose economic penalties based on a calculation of the damages caused by the perpetrator. The strategy, which usually ends with a negotiated settlement, has generated the lion’s share of the environmental fines that the Brazilian state uses to enforce compliance with the Forest Code.

Prosecutors have also used the ACP mechanism to halt, at least temporarily, questionable governmental actions. For example, public prosecutors have used ACP to force governments to comply with laws approved by previous administrations or superior jurisdictions. The MPF used an ACP procedure in 2012 to obtain a court order suspending the ZEE approved by the Mato Grosso State Assembly by arguing that: (a) the text was materially different from the technical document presented to the legislature; (b) the modified version was not compatible with the Forest Code; and (c) it failed to provide legal status for fourteen Indigenous territories. The state government appealed the decision, and the case has yet to be resolved; nonetheless, the state reinitiated the ZEE process in 2016 and initiated another round of consultation in 2021.

In another case, the MPF sued INCRA in 2010 for the inappropriate (illegal) distribution of land in Acre. Settlement areas had been created without demarcating communal forest reserves as mandated by the Forest Code, while ignoring the requirement for obtaining an environmental license. The court ordered INCRA to initiate environmental licensing applications within sixty days or pay a fine of R$ 200,000 for each case of non-compliance. More recently, the MPF used the ACP to challenge the Bolsonaro administration’s attempt to build a highway between Cruzeiro do Sul and the Peruvian border. Prosecutors are not always successful, however, as evidenced by the reversal of a similar petition by a judge, which allowed for the ongoing pavement of BR-319.

Until recently, there were few reported examples of civil society organisations using an ACP lawsuit to question government action. That apparently changed during the administration of Jair Bolsonaro as NGOs mobilised to oppose his policies, which were designed to unravel many of the environmental polices enacted over the last three decades, particularly the enforcement of the Forest Code.

Very rarely, plaintiffs will combine both an ACP and a class action suit, such as in the ongoing litigation targeting Norsk Hydro following the catastrophic failure of its waste treatment facility in 2018. The immediate cause of the disaster was a heavy rainstorm that overwhelmed the storage capacity of the company’s tailing ponds, sending a surge of toxic sludge through thirteen communities in the municipality of Barcarena (Pará). Subsequent monitoring of soil and water revealed dangerously high levels of heavy metals, which caused state environmental authorities to order the company to halt operations in one of its three industrial facilities.

The litigation led to a ruling ordering the company to pay $R 150 million (US$ 28 million) in damages; unsurprisingly, the company appealed, but also entered into a conflict resolution process known as a Termo de Compromisso de Ajustamento de Conduta (TAC), which committed it to remediate the damage and pay (limited) compensation. The communities were dissatisfied with the settlement and filed a class action suit in the Netherlands, where a Dutch law firm united the petitions of 11,000 families living near three of the company’s industrial operations in Pará: the mine in Paragominas, the Alunorte refinery and Albras smelter.

Colombia enacted a similar law in 1998, which established two similar procedures designed to protect the collective rights of society. One of those facilitates collective civil suits in a manner similar to that pioneered by Brazil, referred to as Acciones Populares, which provide society with a means to ‘prevent’ damages caused by poorly planned or inappropriate actions; and Acciones Grupales, which allow groups of individuals to seek compensation for damages for a broad range of wrongdoing and neglect. Bolivia also enacted a law allowing for Acciones Populares; like the Colombian litigation, this measure seeks only to prevent damage, rather than compensating for past events.

Ecuador has embraced the concept of collective action, which is implicitly recognised in the 2008 constitution. Ironically, the pre-existing acción popular mechanism used to sue Texaco/Chevron was eliminated in a procedural reform law in 2015. Instead, the new law makes it possible to sue the offender on behalf of Mother Nature herself, since she has been endowed with certain rights and protection in Ecuador’s 2008 constitution. In Peru, only collective action lawsuits that address consumer protection are allowed in civil courts, while environmental complaints must pass through the administrative or criminal justice system.

Regardless of the existence or absence of a legal procedure, using class action suits to combat environmental misconduct is not practical in the Andean Republics. Theoretically, civil society could use collective action to improve governance, but there are many obstacles, including the cost of a long legal battle in an inefficient judicial system. More importantly, the civil law system is not designed for effective civil litigation, at least when compared to the common law systems that predominate in countries with Anglo-Saxon legal traditions. Latin American judicial systems do not have jury trials, which eliminates the ability of the injured party to appeal to like-minded citizens, nor do they allow for punitive damages, which can create a powerful economic incentive to change business practices.

Despite the potential for civil lawsuits to change behaviour, tens of thousands of offenders of environmental regulations operate outside of (or adjacent to) the formal economy. Wildcat gold miners, timber pirates and landgrabbers have zero motivation to comply with environmental laws and, because of their informal status, they are relatively immune to civil suits. The only realistic way to change their behaviour is to use the criminal justice system to shut them down, confiscate their assets and, if necessary, send them to prison.

Banner image: An oil pipeline through Wampis territory in the Amazonas department. Image by Jacob Balzani.

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Mayra Editor

This story first appeared on Mongabay

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