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Notes on civil liability for environmental damage in Brazil and Italy

Abstract

This article examines the fundamental legal aspects of civil liability for environmental damage in Brazil and Italy. The research, considering the alarming scenario of environmental and climate crisis, seeks to understand civil liability as a way to face this scenario, through a comparative study. The two countries’ institutes are dealt with separately. The normative framework for this liability, doctrinal perspectives from both states, and the jurisprudential manifestations carried out by the Supreme Courts of the countries in analysing the matter are addressed. Finally, the similarities and differences between the two civil liability systems are outlined.

Parole chiave
  • Brazilian environmental law
  • Italian environmental law
  • Civil liability
  • Environmental damage

1. Introduction

Considering the global context of the environmental and climate crisis, it is becoming increasingly urgent to take seriously the general and special principles that guide environmental law, especially the demands of the human and fundamental rights to a healthy and balanced environment, and the right to a healthy, safe and stable climate. Furthermore, from the perspective of the objective dimension of these rights, it is imperative that all State actors fulfil the corresponding protection duties, expressly and/or implicitly enshrined at constitutional and international level.

Knowing that there are many ways to fulfil the State’s protection duty, not only in environmental matters, but especially here, the establishment and strengthening of the legal system of civil liability for damage caused to the environment has increasingly taken centre stage in this context. However, this is not uniform across States within the international community, existing important differences between the respective legal systems.

In light of this scenario, in the field of environmental civil liability it is not only interesting but also productive to consider the models adopted by different states for preventing and remedying environmental degradation, making it possible, through a comparative study, not only to reflect on the correctness of the strategies adopted, but also, depending on the analysis and its results, facilitating their improvement.

Given the need to delimit the subject of this study, a comparison between the Brazilian and Italian environmental civil liability regimes was chosen, seeking to outline the similarities and differences between the two legal systems and identify aspects that could be improved through the reception (unilateral or bilateral, but always filtered) of legal institutes, concepts and techniques. It should also be noted that the comparison between the Brazilian and Italian systems is justified by the fact that Italian civil liability law has been widely studied and even embraced in Brazil, both doctrinally and at jurisprudential and legislative levels.

From this perspective, the aim is to demonstrate that both countries have developed, albeit not symmetrically, a differentiated and strong legal regime for civil liability for environmental damage, and through the comparison of the main legal institutes is possible to establish and strengthen dialogue and mutual learning.

In order to do this, the first step is to delineate the legal institutes that will be compared in relation to environmental civil liability. Then, using legislative, jurisprudential, and doctrinal elements, a presentation will be made of how the matter is regulated in each legal system. Finally, the actual comparative analysis will be carried out, pointing out similarities and differences with regard to the treatment of civil liability for environmental damage in Italy and Brazil, assessing to what extent this comparison can contribute to the development of environmental protection in one or both countries.

The object of this comparative study is civil liability arising from environmental damage. To this end, will be taken as a reference environmental damage in the strict sense, characterized by either patrimonial or non-patrimonial aspects that impacts the ecologically balanced environment from a trans-individual perspective. This excludes the so-called reflex environmental damage, which is merely individual, and also individual homogeneous rights, which are individual in their nature but receive artificially trans-individual jurisdictional treatment due to their common origin.1

It is from this perspective, as already mentioned, that we seek to understand and compare the institute of environmental civil liability in the legal systems of Brazil and Italy. In this exercise, the focus is solely on comparing the norms related to civil liability arising from environmental damage, rather than the general parameters of civil liability in each of the two countries.

 It should be noted that the rules in force governing the matter will be studied, both at the infra-constitutional and at the constitutional level, from the perspective of the Constitution of the Italian Republic of 1947 (CRI) and the Brazilian Constitution of 1988 (CF). In this context, it is worth taking Professor Paulo Nader’s lesson seriously, who states that comparative law should not be limited to laws and codes but should analyse the legal cultural facts of the country from which they originated.2

The doctrine of the two states analysed was selected thematically, and the works referenced refer to the period when both constitutions were in force. Finally, the jurisprudential section was also thematic, selecting important judgements and arguments to delineate the institute in the higher courts of the states.3

3. Civil liability arising from environmental damage in Brazilian law.

3.1 General notions and normative basis

In Brazil, environmental civil liability has constitutional and infra-constitutional basis. Beyond the generic provisions of the civil code, there is a legislative option for a special and robust regime in the case of liability arising from environmental damage, which stems from a privileged constitutional option for the right to a balanced environment. Furthermore, in procedural terms, the country has adopted a particular system for dealing with diffuse and collective transindividual rights or interests, which are the focus of this analysis.

Initially, the legislation differentiates between diffuse interests, collective interests and homogeneous individual interests, in addition to merely individual interests. In the case of civil liability arising from environmental damage, this distinction is important, as it permeates the legal treatment of environmental damage in the country’s jurisdictional system and fits in with the very nature of the legal good of a balanced environment. In Brazilian procedural legislation, we can see a change in perspective from the 1980s onwards, in order to make suitable instruments available for the protection of transindividual rights. The issue was first dealt with in Law 6.938/81, which instituted the National Environmental Policy (PNMA) and designated the Public Prosecutor’s Office as the holder of the right to bring an action to repair environmental damage.4 It’s important to say that, in addition to the fact that all previous environmental legislation (especially the PNMA and the constitutionalisation of the Public Civil Action – ACP) has been accepted by the Federal Constitution, the establishment of a collective procedural (but also material) system in Brazil has continued to be strengthened, as evidenced by the huge first step taken in 1990 with the Consumer Protection Code (CDC), which attempts to conceptualise the categories of diffuse, collective and individual homogeneous rights in its Article 81, Sole Paragraph,5 among other important advances over the years, including the improvement of the ACP and an increasing focus on so-called structural processes and structuring measures.6

To briefly recall the classification mentioned above, diffuse rights are those owned by undetermined people and linked by factual circumstances. The indeterminability of the interested parties and the broad indivisibility of the right are its defining features. In the case of collective rights, the transindividual nature of the right is limited to people belonging to a certain group, linked by a legal relationship. These may be individuals belonging to associations, categories or classes and, as a result, holders of a collective right.7  Finally, homogeneous individual rights are materially individual. However, procedurally, they are dealt with individually because they have the same triggering event that affects all their holders, as well as issues related to procedural economy.8

With regard to the constitutional basis for the special regime of civil liability arising from environmental damage in Brazil, the 1988 Constitution contains two provisions that deal specifically with liability arising from environmental damage. The first of these is paragraph 2 of article 225, which prescribes that: “Anyone who exploits mineral resources is obliged to restore the degraded environment, in accordance with the technical solution required by the competent public body, in accordance with the law.”9 Even though the provision refers specifically to damage resulting from mining, the obligation to recover the environment is emphasized. The primacy of in natura reparation is highlighted as the preferred option when it comes to the right to the environment.

Secondly, paragraph 3 of the same art. 225 states that “Conducts and activities considered harmful to the environment will subject offenders, whether individuals or legal entities, to criminal and administrative sanctions, regardless of the obligation to repair the damage caused.”10  This rule encompasses the three areas of environmental responsibility: criminal, administrative and civil.11

However, in constitutional terms, the main source of environmental civil liability is the state’s duty of protection arising from the objective dimension of the fundamental right to a balanced and healthy environment, which also includes the so-called climate protection duties.12

The first infra-constitutional basis for a specific regime of environmental civil liability, as already mentioned, predates the Federal Constitution, namely Law 6938/81, which provides for the PNMA, and which, according to the provisions of art. 14, §1, prescribes the following:

Without regarding the application of the penalties provided for in this article, the polluter is obliged, regardless of fault, to indemnify or repair the damage caused to the environment and to third parties affected by its activity. The Federal and State Public Prosecutor’s Offices shall have legal standing to bring civil and criminal liability actions for damage caused to the environment.13

Analysing this provision, it is possible to outline the following specific characteristics of environmental civil liability in Brazil, which have guided its orientation and formed a subsystem with its own logic, principles, and rules. The first particularity lies in the fact that it is an objective liability, as it does not require the existence of fault14. Furthermore, it allows and even prioritizes collective protection, as later reaffirmed by the Public Civil Action Act15 and the Federal Constitution. In addition, the objective nature of liability for environmental damage is particularly important given the circumstances that often prove difficult to establish the polluter’s fault for the damage.16 Another aspect to emphasise is that art. 3, item IV of the same law presents an expanded concept of polluter to include all those who contribute in some way to the chain of environmental damage, thus establishing the figure of the so-called indirect polluter, as the one who contributes through action or omission, albeit indirectly, to the materialization of the damage.17

3.2 Doctrinal positions

Doctrine shows that Brazil has a special constitutional regime for civil liability arising from environmental damage.18 According to Paulo Nader, “Article 225 of the Constitution itself, in its paragraphs and subparagraphs, presents a list of guiding principles for ecological civil liability”19. As a result, there is a construction of principles and identification of rules in this system, which differs from the general rules in the 2002 Civil Code, in order to provide greater environmental protection20. Seeking to justify the need for a different treatment of situations involving environmental damage, in relation to all other civil offences that are regulated by general rules, Benjamin points out the following reasons:

a) difficulty in identifying the subjects of the obligatory legal relationship, as the plaintiff-victim “double” almost never appears with its well-defined contours (collective action and collective victimisation, with the consequent fragmentation of responsibilities and ownership), as we are dealing with polygonal or multilateral legal relationships, typical of post-industrial society; b) the requirement to characterize the fault of the degrader, in those systems that still require it (…); c) the complexity of the causal link; d) the fluid and elusive nature of environmental damage in itself.21

Thus, the very peculiarities of environmental damage justify a different regime, based on precaution and objective liability. Sarlet and Fensterseifer point to the break with the classic individual liberal paradigm of civil liability that occurs in cases of environmental damage, given the strong normative basis for holding the polluter responsible.22  It is important, doctrinally, to distinguish between transindividual and individual interests in environmental matters. This is due to the position that some elements of the special environmental civil liability regime do not apply to individual interests resulting from so-called reflex environmental damage, especially imprescriptibly, which will be addressed in the next section.23

In this context, the doctrine identifies principles governing the system of environmental civil liability, which communicates with the general system arising from article 186 of the Civil Code. However, it differs from it by legislative choice in view of the peculiarities of environmental damage. The Polluter Pays Principle emerges as a general principle of Brazilian environmental law and is essential for understanding civil liability for environmental damage.24  It is enshrined in the Federal Constitution and expressed in the PNMA, in its article 4, item VII:

Art. 4 The National Environmental Policy shall aim to: VII- the imposition, on the polluter and the predator, of the obligation to recover and/or indemnify the damage caused and, on the user, of the contribution for the use of environmental resources for economic purposes.25

In that regard: “in a very crude way, it is equivalent to the formula ‘he who dirties, cleans’, elementary in our daily relations.”26 Its application aims to individualise the burden, at least the economic one27, that comes from environmental degradation.28

The principle of full reparation must also be strictly observed in civil reparation for environmental damage. This is a general principle of civil liability, deriving from article 944 of the 2002 Civil Code. By stating that compensation is measured by the extent of the damage, the law states that it must be repaired in full.29 In the case of environmental damage, this means seeking to restore the status quo ante in relation to the environment and the individuals affected. However, due to the peculiarities and magnitude of certain environmental damages, the preferential option of restoration is impractical. In view of this, attention must be paid to the possibility of this measure, which, when unfeasible, must be replaced by compensatory forms of degradation.30

Article 927 of the Civil Code of 2002 opens up the possibility of liability for damage regardless of fault, when the law specifies this, or when the agent’s activity represents a risk of damage to others. Risk assumes relevance as a special paradigm of civil liability. In cases where fault is not adequate to meet demands and guarantee the right to compensation for unjust damage, the risk theory is used.31 In the case of environmental damage, the majority position currently centres around the theory of integral risk for environmental damage, which means that it is impossible to apply any exclusions of unlawfulness, such as unforeseeable circumstances and force majeure.32

3.3 Case law

The case law of the Superior Court of Justice (STJ) and the Federal Supreme Court (STF) in relation to environmental damage provides fundamental guidelines for understanding the institute and the liability that arises from it. Firstly, there are precedents from the STJ which, when judging cases related to environmental damage, have used the principle of in dubio pro natura, a hermeneutic construction also referred to by legal doctrine:

“It is important to take into account the command of Article 5 of the Law of Introduction to the Civil Code, which states that when applying the law, “the social purposes to which it is directed and the requirements of the common good” must be taken into account. A corollary of this rule is the realisation that, in the event of doubt or any other technical-redactional anomaly, the environmental rule requires interpretation and integration in accordance with the hermeneutic principle of in dubio pro natura. This is precisely because, it should be remembered, all legislation to protect vulnerable individuals and diffuse and collective interests must always be understood in the way that is most beneficial to them and best enables, from the perspective of practical results, the provision of justice and the ratio essendi of the rule.”33

In the excerpt from the vote transcribed above, the rapporteur, Justice Benjamin, used in dubio pro natura as a tool to determine the extent of environmental protection rules. In this sense, he argues that they must be interpreted in such a way that their purpose, the effective protection of the environment, is fully met. The STJ also argues that full reparation of the damage does not exempt the defendant in an environmental civil liability action from the duty to indemnify. In this regard, the rapporteur, Mr Humberto Martins, argued using the principle of in dubio pro natura.34

In the STJ case law, there has also been a large-scale expansion of the concept of polluter in the identification of the causal nexus to include, in the field of passive joint and several liability, according to Justice Herman Benjamin’s proposition, “those who do, those who don’t do when they should, those who don’t care if they do, those who remain silent when it is their duty to denounce, those who finance others to do, and those who benefit when others do”.35 In this judgement, the STJ establishes a system of passive solidarity for all those who, directly or indirectly, contribute to environmental damage through their actions or omissions.

Regarding the causal nexus, the STJ has already ruled that it must be observed based on the valuation of all the elements that contribute to the occurrence of the damage through legal-normative criteria, which applies to environmental cases in which the mere direct relationship of cause and effect based on a naturalistic conception is often not adequate. On the other hand, the legal valuation of all the elements may be the most appropriate decision-making technique, given the causal plurality typical of this type of damage.36 It is also worth mentioning the jurisprudential support for the adoption of the integral risk theory within the special regime of environmental civil liability. The STJ has already ruled in this regard, as can be seen in the following judgement:

The integral risk theory is an extreme form of the risk theory in which the causal nexus is strengthened so that it cannot be broken by the implementation of causes that would normally jeopardise it (e.g. the victim’s fault, third party event, force majeure). This modality is exceptional and is the basis for legal hypotheses in which the risk posed by economic activity is also extreme, as is the case with nuclear damage (art. 21, XXIII, ‘c’, of the Federal Constitution and Law 6.453/1977). The same happens with environmental damage (art. 225, caput and § 3, of the Federal Constitution and art. 14, § 1, of Law 6.938/1981), given the growing concern for the environment.”37

It is also important to mention the recent STF decision that culminated in General Repercussion Thesis number 999, establishing the imprescriptibility (no limitation) of environmental damage. Extraordinary Appeal No. 654.833/AC, reported by Justice Alexandre de Moraes, dealt with a claim for compensation from the Ashaninka-Kampa indigenous community, which suffered from illegal logging in its territory between 1981 and 1982 by the Cameli Group, an economic conglomerate from Acre. The debate in the Supreme Court centred on the applicability of the limitation periods in the Civil Code to environmental damage, with the prevailing view being that environmental damage is imprescriptible. In the vote of the Reporting Justice, it reads:

Along these lines, it can be concluded that the existence of individual fundamental rights does not have the power to override the supremacy of the public interest with regard to the conservation of an ecologically balanced environment that is healthy for the quality of life.In view of the above, I EXTEND THE PROCEEDING, with judgement on the merits, in relation to the estate of Orleir Messias Cameli and Marmud Cameli Ltda, on the basis of art. 487, III, b of the 2015 Code of Civil Procedure, with the Extraordinary Appeal being dismissed; and I suggest that the following thesis be established: “The claim for civil reparation for environmental damage is imprescriptible.38

Regarding the topic, there is a new development; in September 2023, the Supreme Court extended the rule of imprescriptibility to actions for compensation to the federal treasury arising from illegal mining, a thesis that resulted from the Court’s General Repercussion Topic No. 1268: “The claim for compensation to the treasury arising from the irregular exploitation of the federal treasury’s mineral assets is imprescriptible, as it is inseparable from the environmental damage caused”.39 In a unanimous decision, accepting the vote of the Rapporteur, Justice Rosa Weber, the Court understood that the illicit act in question does not merely cause economic damage to the Federal Government, but harms the community in its fundamental right to a balanced environment, since the environmental damage is inherent to mining carried out illegally.

So, having outlined some of the main points on the subject from the Brazilian perspective, let’s move on to the Italian system.

4. Civil liability for environmental damage in Italian law.

4.1 General notions and normative basis.

Firstly, it should be noted that Italian doctrine and jurisprudence also recognise the classification of transindividual rights adopted by the Brazilian Consumer Protection Code, which divides them into diffuse, collective and individual homogeneous rights or interests. The mention of these categories is also present in Italian law in the country’s Consumer Code and, in particular, was the subject of a recent reform of the Italian Code of Civil Procedure, through Law 31/2019, which created a new form of collective action, similar to class action in Anglo-Saxon law, and officially included homogeneous individual rights in the transindividual category.40

However, it should be noted that the country’s doctrine has a different conception regarding the defence of diffuse and collective rights than in Brazil. Currently, the prevailing position is that the defence of diffuse interests can be sustained in a similar way to collective rights.41 In other words, through environmental associations, which need recognized legitimacy to bring collective actions in environmental matters. In Italian positive law, limited mention of the protection of diffuse transindividual rights are found. In the country, the protection is being consolidated within environmental issues, through case law.42

The normative basis for liability arising from environmental damage in Italy has been expanded over the course of the 21st century, in the face of a European Community context that has been moving towards ensuring environmental protection. Nevertheless, it is important to note that the duty to indemnify for environmental damage was already supported by rules in the Italian Constitution of 1948, which deal with the social rights to health, culture and the environment. Article 9, point two, recognises the Republic’s duty to protect the nation’s landscape and artistic heritage.43 Article 32 provides for the fundamental right to health, which is directly related to the protection of the environment.44  Article 2 of the Constitution also protects the dignity of the human person, a fundamental value that correlates with environmental protection and sustainable development.45

The express provision of the environment as a fundamental right in the country’s constitutional text is recent, as it was only in February 2022 that a Constitutional Amendment was enacted, modifying articles 9 and 32 of the Italian Constitution to include the “protection of the environment, biodiversity and ecosystems, also in the interests of future generations”,46 as a duty of the Italian state. This addition to the constitutional text is paradigmatic, as it opens the door to the development of an ecocentric approach to environmental protection in the country, in line with European legal doctrine, with a view to the formation of an ecological constitutionalism.47 Furthermore, the express mention of the interests of future generations incorporates the definition of sustainable development presented in Principle 2 of the 1992 Rio Declaration on the Environment, which emphasises the intergenerational dimension of protecting nature.48

At the infra-constitutional level, injuries to the environment that gave rise to a duty to compensate were dealt with in the generic rules of the Italian Civil Code until the advent of Law no. 348/1986. Through this law, the Italian legislator recognized the environment as an autonomous right, subject to direct protection, within the competence of the ordinary court of first instance.49 Furthermore, article 16 of this law defines environmental damage as:

Any intentional or culpable act that jeopardises the environment obliges the perpetrator to compensate the damage. The judge, even if a precise quantification of the damage is not possible, determines it on an equitable basis, taking into account the seriousness of the individual’s fault, the cost necessary for reparation, and the offender’s profit.50

This definition is very close to the generic definition of damage in Article 2043 of the Italian Civil Code, so it is argued that Law 348 did not attempt to establish a different civil liability regime for environmental protection. In this way, it is emphasised that the law adopted subjective liability for environmental damage, which was considered a step backwards by the doctrine of the time.51

However, the country’s environmental legislation has been strongly impacted by European Community Law. In 2004, the European Parliament issued Directive 2004/35/EC, which instituted what is known as the Community environmental liability regime.52 Based on the polluter-pays principle,53 t aims to standardize the approach of European Union members to environmental damage. To this end, it provides a broad definition of environmental damage, including damage to water, air and soil, as well as acts that affect flora and fauna. It is also based on the principles of prevention and precaution,54  aiming to create a merely subsidiary system of reparation for when the damage actually occurs.

In annex 2, the types of environmental repair are defined, in order of priority for the executing party. Primary reparation, which involves returning the situation to the status quo ante, takes precedence over the others because it is the most effective way of restoring what has been degraded to nature. However, is also the most challenging to achieve due to the characteristics of environmental damage and its potential impact on society. Therefore, in a subsidiary way, two other forms of reparation are suggested: complementary reparation, which covers the measures to be taken to “compensate for the fact that primary reparation does not result in the full re-establishment of the damaged natural resources and/or services”; and compensatory reparation, which must be carried out while full recovery is not yet in full effect.55 It happens that recovery measures often take years to be carried out, so the solution is in the form of measures to compensate for the environmental damage caused.

Thus, the European legislator’s preference for factual reparation over monetary compensation is clear, although it is not completely excluded as a compensatory instrument.56 Regarding potential liability proceedings for environmental damage, Article 10 already sets a limitation period of 5 years from the date of discovery of the environmental offence for bringing civil or administrative liability actions. In Article 35, the law also clarifies that the preferential regime for preventing environmental damage is independent of the subjective element. This directs the European legislator towards a special regime for civil liability arising from environmental damage, based on objective liability.

This directive was established as mandatory for EU member states, which had to regulate it by 30 April 2007.57  Reiterating its purpose of environmental protection, the text does not prohibit the establishment of stricter national laws by member states to protect the environment.58

Based on the new European system of environmental civil liability, the Italian state took steps to update its legislation on the matter within the established deadlines. In 2006, the Environmental Code, or Single Environmental Text (TUA), was approved, which expanded environmental legal protection in the country. Initially, the text repeals the provisions of Law 348/86, instituting, according to Maccaroni, a “Copernican revolution in the environmental remediation regime.”59 The new definition of environmental damage in the Italian legal system is introduced by art. 300 of the TUA: “Environmental damage is any significant and measurable deterioration, direct or indirect, of a natural resource or of the assured utility of that resource.”6061 This more delimited definition places measurability as a detriment to the classification of environmental damage. However, systematic interpretation of this provision must be carried out in order to recognize the significance of environmental damage in a broad way, based on the polluter-pays principle, as will be demonstrated below when we look at Italian case law.62

As for the civil liability system, reading article 298 of the law reveals cases in which liability is objective, there is no need to assess damage or the polluter’s fault. These are the cases in which the damage results from a professional activity listed in Annex 5 of the law, which adopts the theory of presumed risk, in which the mere potential for degradation of the activity is embedded in the duty of precaution and prevention of environmental damage.63 The annex contains various risky activities, such as mining, the treatment of urban and industrial waste, the storage, production or transport of objects that are potentially harmful to the environment, such as fossil fuels, among others.64

However, other contexts are presented in which the subjective elements are indispensable for the agent’s liability. Article 308(4) and (5) highlight hypotheses that exclude strict liability, circumstances in which intent and fault are indispensable for liability:

4. The costs of precautionary, preventive and restorative actions taken in accordance with the provisions of the sixth part of this decree shall not be borne by the operator if he can prove that the environmental damage or the imminent threat thereof: a) was caused by a third party and occurred despite the existence of abstractly adequate safety measures; b) is a consequence of the observance of a mandatory order or instruction issued by a public authority, other than those given as a result of a problem attributable or accidental to the operator; in this case the Minister for the Environment and Protection of the Territory and the Sea takes the necessary measures to allow the operator to recover the costs incurred.

5. The operator shall not be obliged to bear the costs of the actions referred to in paragraph 5 (…) if he proves that it is not culpable or intentional behaviour.65

Therefore, a mixed system has been adopted, in which strict liability has taken on relevance when applied to activities previously considered to be more damaging to the environment. However, in the Italian system, it has not been given a general or even ordinary character, as there are clear hypotheses in which intent or fault are essential for liability.66  

The central role of the State as guarantor of a balanced environment and responsible for actions concerning environmental damage in the strict sense should also be emphasized.67 In this sense, art. 304 et seq. of the TUA stipulates that the Ministry of the Environment, an organ of the Italian central executive power, acts as a procedural substitute in environmental civil liability actions, in the name of protecting diffuse interests.68

4.2 Doctrinal positions

Firstly, some doctrinal considerations about the regime of Law 348/86 will be analysed. In this context, Monateri points out that the definition of the content of the subjective right arising from environmental damage in Italy had been established by case law decisions. The author wrote that the 1986 Italian model was inspired by the National Environmental Policy Act, a US law from the early 1970s. This would explain the legislative choice not to define specific criteria for verifying environmental damage, delegating more functions to the jurisdiction, with an open legal provision.69

It continues to be fully recognized that, in environmental matters, complete and detailed proof of damage is objectively impossible. Firstly because some harmful effects, constituting certain damage, become evident only over time, and secondly because they are extremely difficult to prove”70.

In this sense, it is argued that the polluter cannot benefit from the difficulty of proving the causal link. Once again, the theory of the probability of damage is particularly important. Under this theory, when risky activities are proven, the causal link is presumed. Regarding to the legislative option for settlement on an equitable basis, Monateri states that, in this judgement, it is important to individualize the facts that are attributable to the convicted party, in order to avoid them being responsible for facts attributable to third parties or any other concause, such as natural phenomena. There is thus a tendency to consider general exclusions from culpability even in cases of environmental damage71.

As for the regime of the Environment Code, he considers that the legislation has created two different regimes for environmental civil liability. One of them, corresponding to European legislation 2004/35/EC, defines that the liability of agents involved in risky activities is objective, and must be protected by the Ministry of the Environment in procedural substitution. The second regime is similar to that of Article 18, with the regime of subjective liability and compensation in cash applying to polluting agents in general. According to the author, the solution presented for reconciling the two different regimes involves re-signifying the character of fault beyond its punitive function, as well as applying the solid criteria presented in the EU Directive for awarding compensation.

In fact, the ambiguity in the wording of the Italian Environmental Code has been criticized by legal scholars. On the one hand, it is argued that the old rule in Article 18 of Law 346/1986, although it was limited and brought the field of environmental liability too close to public law, still outlined a system of compensation for environmental remediation. In this sense, community law regulations would have focused too much on forms of factual reparation, such as environmental compensation and full reparation, forgetting to regulate what, although not the most desirable, is often the only possible way of recovering the damage: compensation in money.

Another criticism, made by Maccaroni, relates to an apparent step backwards in recognising the importance of the subjective element in environmental civil liability.72 As will be elaborated in the next section, it should be noted that although the 1986 law provides for a system that requires proof of intent and fault, Italian jurisprudence had already bypassed this issue to decide that the causal link, mere risk, was sufficient to determine compensation.

4.3 Case law

The Italian Constitutional Court has handed down important rulings on environmental law, affirming its autonomy, unity and the civil liability of agents responsible for environmental damage73. It has even acted to complement initially abstract provisions in the country’s legislation which, as already explained, with Law 348/86, failed to establish the normative content of basic concepts, such as environmental damage itself.74  Initially, it should be pointed out that the Court has already defined the right to a balanced environment as a “fundamental right of the person and an interest of the community”75. It has also considered it as:

A unitary intangible asset, despite having several components, and each of them can also individually and separately be the object of care and protection, but all of which together lead to unity.76

This shows the multifaceted nature of the environment, despite its unity as an autonomously protected legal asset. This construction is important because it deals with environmental damage, taking into account the various dimensions it can take on: moral, patrimonial, temporal, ethical, which may partly justify treating it differently from the general rules of civil liability. Still in this context, it is important to note that Italian case law is beginning to delineate these characteristics, defining, for example, that:

 Environmental damage includes the concept of impairment or damage to the environment, consisting of the alteration, destruction or deterioration of all or part of the environment. In other words, it is not enough for there to be a formal violation of environmental protection rules in terms of pollution, but it is necessary for the state or territorial entities to deduce that the environment has been compromised.77

In the above decision by the Supreme Court of Cassation, the problem of civil liability is addressed, namely the measurement of environmental damage, which, however, needs to be certified by the public authorities, which highlights the importance of the state in the Italian environmental liability system.

In a more recent decision, already under the TUA, the Court of Cassations addressed the regime of strict liability for those who carry out dangerous activities:

Whether referring to the exercise of a dangerous activity or to damage caused by causes in custody, it is indispensable for the assertion of liability of the exerciser of the dangerous activity in custody that a causal link be accepted between the activity or the thing and the damage caused by the third party (…). Therefore, even in cases where the person carrying out the dangerous activity has not taken all the appropriate measures to avoid the damage, thereby creating a situation highly capable of giving rise to liability, a causal link between the latter and the dangerous activity lies in the efficient cause that has the character of an unforeseeable event and is capable, on its own, of causing the event, which has liberating effects even when it is attributable to the harmful event itself or to a third party.78

It should also be noted that Italian jurisprudence rejects the application of the theory of integral risk in civil liability for environmental damage. Therefore, the exclusions of civil liability must be taken into account: unforeseeable circumstances and force majeure. On the other hand, the discussion on relativizing the statute of limitations for environmental damage has not developed in the Italian context.

5. Comparative and conclusive summary

In light of the above, which sought to elucidate the legal treatment of civil liability arising from environmental damage in Brazil and Italy, we proceed to explore the similarities and differences between the two legal systems. First of all, it should be noted that the right to a balanced environment is constitutional and fundamental in both legal systems79. It is worth noting that, although Italy only expressly provided for environmental protection in its constitution in 2022, this right was already considered implicit in its text by the doctrine previously,80 deriving from the right to life and health, provided for in the original 1958 text. In the case of Brazil, art. 225 §2 and §3 of the Federal Constitution not only expressly enshrines a fundamental right to a balanced environment, but also includes civil liability as an environmental protection strategy, which is not the case in the Italian Constitution.

In the procedural system for protecting transindividual rights, similarities can be seen in the doctrinal approach in both legal systems, emphasizing the differences between diffuse, collective and homogeneous individual rights. However, it should be pointed out that in Brazil this construction is expressed in the Consumer Code and is also observed in environmental collective proceedings. On the other hand, in Italy, the protection of trans-individual environmental rights, especially diffuse interests, is built on jurisprudence, where there are greater obstacles to protecting these rights, especially due to the strict criteria for protecting diffuse interests through environmental associations.

However, given the importance of the environment as a fundamental right in both countries, it should be noted that around the same time, in the mid-1980s, both countries introduced infra-constitutional legislation outlining specific rules on civil liability for environmental damage. In the case of Brazil, this was regulated by the National Environmental Policy Act of 1994, which predates the 1988 Constitution itself, in Article 14§1. In Italy, it was regulated by Law No. 348 of 1986, in particular art. 18. This is an important point of difference. In Brazil, on the one hand, the aforementioned paragraph expressly established a system of strict liability for cases of environmental damage. In Italy, on the other hand, the liability system is generally subjective, with strict liability only in situations listed by law. Possibly as a result of this normative basis, the majority of national doctrine supports the existence of a special regime for environmental liability in Brazil. The exceptional rule of liability was adopted only on proof of the causal link, without going into subjective issues in relation to the polluter (intent or fault). On the other hand, Italian doctrine does not identify this expression of a special regime, although there are positions defending strict liability.81

The fact is that, with the advent of Council of Europe Directive 2004/35/EC, at least speak of a special Community regime for civil and administrative liability for environmental damage can be discussed. When the Italian Single Environmental Text regulated the directive in 2006, there was greater independence from the general rules of the Italian Civil Code, moving towards a system closer to that of Brazil. Although the current regime is predominantly one of subjective liability, the new regulations, in line with the European Union, established specific cases in which the subjective element is dispensable: in the case of agents who carry out polluting activities. This is in line with the principle of prevention, which permeates the new European legislation.82

In Brazil, prevention is also considered one of the governing principles of environmental civil liability. It should be noted that both countries are signatories to the 1992 UN Declaration on Environment and Development, which includes precaution as principle number 15.83 However, the central difference is that in Brazil, civil liability is objective in all cases of environmental damage, while in Italy it is only objective when the damage results from activities listed by law. Another important distinction between the two countries legal systems lies in most of the case law adhering to the theory of integral risk, which is the case in Brazil, while in Italy, according to the case law analysed in this article, liability exclusions are considered, even in the exceptional cases in which liability is objective.

In short, the issue of statute of limitations is considered to be of the utmost importance, and its discipline in Brazilian law, through jurisprudence, has culminated in the imprescriptibility of environmental damage. In Italy, as in other European countries such as Germany, France, Spain and Portugal, this is not the case.84 Italy has a five-year statute of limitations, in accordance with a European directive. However, the limitation period only begins once the damage has been suffered by the victim (which may be the state or the community).

Looking at the comparison from a global perspective, it is possible to say that the treatment given to civil liability arising from environmental damage in Brazil tends to favour broad reparation of the damage by the agent, whether if he was (is)  directly or indirectly responsible, while Italy adopts a more cautious position, in which those involved in environmental damage can use more legal remedies to avoid liability. That said, Brazil’s protective stance, mainly through strict liability and imprescriptibility, is in line with the idea that Brazil’s commitment to environmental preservation is proportional to the size of its biodiversity, which is the greatest of any country in the world, according to Conservation International.85 Therefore, despite the fact that both countries, Brazil and Italy, have the polluter pays and prevention principles as a reference point, the Brazilian legal system offers a much stronger protection of the environment when it comes to civil liability.

  1. J. R. M, Leite; P. A. Ayala. Dano Ambiental. São Paulo: Grupo GEN, 2019, 143. ↩︎
  2. P. Nader. Introdução ao Estudo do Direito. 45ª Edição. São Paulo: Grupo GEN, 2023, 49. ↩︎
  3. Corte Costituzionale Italiana; Corte Suprema di Cassazione; Supremo Tribunal Federal; Superior Tribunal de Justiça. ↩︎
  4. I. W. Sarlet; T. Fensterseifer. Curso de Direito Ambiental. 3. ed. Rio de Janeiro: Forense, 2022, 672. ↩︎
  5. T. Zavascki. Reforma do processo coletivo: indispensabilidade de disciplina diferenciada para direitos individuais homogêneos e para direitos transindividuais. In: A. P. Grinover, A. G. C. Mendes; K. Watanabe. Direito Processual Coletivo e o anteprojeto de Código Brasileiro de Processos Coletivos. São Paulo: Revista dos Tribunais, 2007, 10-15. ↩︎
  6. On this subject, see the masterly collective work organised by S. Arenhart; M. F. Jobim; G. Osna. Processos Estruturais. 4th edition, Salvador: Editora JusPODIVM, 2022. ↩︎
  7. Brazil. [Consumer Defence Code]. Law no. 9.078/1990. Available at: https://www.planalto.gov.br/ccivil_03/leis/l8078compilado.htm. ↩︎
  8. T. Zavascki. Reforma do processo coletivo: indispensabilidade de disciplina diferenciada para direitos individuais homogêneos e para direitos transindividuais. In: A. P. Grinover, A. G. C. Mendes; K. Watanabe. Direito Processual Coletivo e o anteprojeto de Código Brasileiro de Processos Coletivos. São Paulo: Revista dos Tribunais, 2007, 10-15. ↩︎
  9. Brazil. [Constitution (1988)]. Constituição da República Federativa do Brasil de 1988. Brasília: Presidency of the Republic. Available at: http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm. ↩︎
  10. Ivi. ↩︎
  11. I. W. Sarlet; G. Wedy; T. Fensterseifer Curso de Direito Climático. 1st ed., São Paulo: Revista dos Tribunais, 2023, 612. ↩︎
  12. Ivi, 143. ↩︎
  13. Translation: “Sem obstar a aplicação das penalidades previstas neste artigo, é o poluidor obrigado, independentemente da existência de culpa, a indenizar ou reparar os danos causados ao meio ambiente e a terceiros, afetados por sua atividade. O Ministério Público da União e dos Estados terá legitimidade para propor ação de responsabilidade civil e criminal, por danos causados ao meio ambiente”. Brazil. [National Environmental Policy Law]. Law No. 6.938/1981. Available at: http://www.planalto.gov.br/ccivil_03/leis/l6938.htm. ↩︎
  14. P. Nader, Curso de Direito Civil: Vol. 7 Responsabilidade Civil, 6th edition. São Paulo: Grupo GEN, 2015, 408. ↩︎
  15. Brazil. Law 7.347/85. Available at: https://www.planalto.gov.br/ccivil_03/leis/l7347orig.htm. Accessed on: 15/12/2023. ↩︎
  16. J. R. G. Bueno; M. V. Delupo. Responsabilidade Civil por Dano Ambiental decorrente do rompimento de barragem. Revista Questio Iuris, vol. 10, nº. 3 p. 2135-2168, Rio de Janeiro, 2017, 2147. ↩︎
  17. I. W. Sarlet; T. Fensterseifer. Curso de Direito Ambiental.  3. ed. Rio de Janeiro: Forense, 2022, 672. ↩︎
  18. Translation: “a) difícil identificação dos sujeitos da relação jurídica obrigacional, pois a “dobradinha” autor-vítima quase nunca  aparece  com  seus  contornos  bem  definidos  (atuação  coletiva  e  vitimização também  coletiva,  com  a  consequente  fragmentação  de  responsabilidades  e  de titularidade b), na medida em que estamos diante de relações jurídicas poligonais ou multilaterais, próprias da sociedade pós-industrial; b) a exigência de caracterização da culpa do degradador, naqueles sistemas que ainda a exigem (…)c) a complexidade do nexo causal; d) o caráter fluido e esquivo do dano ambiental em si mesmo considerado.” A. H. V. Benjamin. Responsabilidade Civil Pelo Dano Ambiental.  Revista Brasileira de Direito Ambiental, v.9, p. 5-52, jan-mar, 1988, 8. Available at: https://revistadostribunais.com.br/maf/app/delivery/offload/get?_=1655410574323. ↩︎
  19. P. Nader, Civil Law Course: Vol. 7 Civil Liability, 6th edition. São Paulo: GEN Group, 2015, 403. ↩︎
  20. Inthis sense, the principle of in dubio pro natura, a jurisprudential hermeneutic construction arising from the special regime of environmental civil liability, is worth mentioning and will be discussed in this article. ↩︎
  21. Brazil. [Constitution (1988)]. Constituição da República Federativa do Brasil de 1988.Brasília: Presidency of the Republic. Available at: http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm. ↩︎
  22. I. W. Sarlet; T. Fensterseifer Curso de Direito Ambiental. 3. ed. Rio de Janeiro: Forense, 2022, 609. ↩︎
  23. Ivi, 666. ↩︎
  24. G. Wedy; R. M.C. Moreira, Manual de Direito Ambiental: de acordo com a Jurisprudência dos Tribunais Superiores. Belo Horizonte: Editora Fórum, 2019, 52. ↩︎
  25. Trasnlation: Art. 4º A Política Nacional do Meio Ambiente visará: VII- à imposição, ao poluidor e ao predador, da obrigação de recuperar e/ou indenizar os danos causados e, ao usuário, da contribuição pela utilização de recursos ambientais com fins econômicos. Brazil. [National Environmental Policy Law]. Law No. 6.938/1981. Available at: http://www.planalto.gov.br/ccivil_03/leis/l6938.htm. ↩︎
  26. A. H. V. Benjamin. Responsabilidade Civil Pelo Dano Ambiental.  Revista Brasileira de Direito Ambiental, v.9, p. 5-52, jan-mar, 1988, 8. Available at: https://revistadostribunais.com.br/maf/app/delivery/offload/get?_=1655410574323. ↩︎
  27. D. A. Moreira; L. M. R. T. Lima; I. F. Moreira. O princípio do poluidor-pagador na jurisprudência do STF e do STJ: uma análise crítica. Veredas do Direito, Belo Horizonte, v.16 n.34, 367-432 January/April 2019. ↩︎
  28. P. B. Antunes. Responsabilidade civil ambiental: uma breve introdução. 2ª ed. Indaiatuba, SP: Foco, 2024. Acesso em 01 mar 2025. ↩︎
  29. R. F. Pinheiro; J. R. D. T. Trautwein. O princípio da reparação integral e a contraofensiva da culpabilidade: Revisitando a cláusula de redução equitativa da indenização. RIL Brasília. a.57, n. 226, 71-92, Apr./Jun, 2020. ↩︎
  30. P. B. Antunes, Direito Ambiental. São Paulo: GEN Group, 2021, 473. ↩︎
  31. E. Facchini Neto. Da Responsabilidade Civil no Novo Código.  Revista do TST, Brasília, vol. 76, no 1,17-63 jan/mar 2010, 31. ↩︎
  32. B. Miragem. Responsabilidade Civil. São Paulo: Grupo GEN, 2021, 283. ↩︎
  33. Translation: “Incumbe levar em conta o comando do art. 5ºda Lei de Introdução ao Código Civil, que dispõe que, ao aplicar a lei, deve-se atender “aos fins sociais a que ela se dirige e às exigências do bem comum”. Corolário dessa regra é a constatação de que, em caso de dúvida ou outra anomalia técnico-redacional, a norma ambiental demanda interpretação e integração de acordo com o princípio hermenêutico in dubio pro natura. Assim é precisamente porque, convém lembrar, toda a legislação de amparo dos sujeitos vulneráveis e dos interesses difusos e coletivos há sempre de ser compreendida da maneira que lhes seja mais proveitosa e melhor possa viabilizar, na perspectiva dos resultados práticos, a prestação jurisdicional e a ratio essendi da norma.” STJ, Brazil. Recurso Especial No. 1.198.727-MG. Lex: A.H. Benjamin; J.L.R. Leite; S. Capelli. Revista do Superior Tribunal de Justiça, Brasília, STJ, v. 27, n. 239, t. 1, p.36, jul./set. 2015. ↩︎
  34. STJ, Brazil. Recurso Especial No. 1.198.727-MG. Lex: A.H. Benjamin; J.L.R. Leite; S. Capelli. Revista do Superior Tribunal de Justiça, Brasília, STJ, v. 27, n. 239, t. 1, p.36, jul./set. 2015. ↩︎
  35. STJ, Brazil, REsp 1.071.741/SP, 2nd T., Reporting Justice Herman Benjamin. Date of judgement: 24/03/2009. ↩︎
  36. STJ, Brazil. REsp 1.718.564/SP, Rel. Min. Paulo de Tarso Sanseverino, Date of judgement: 23/06/2020. ↩︎
  37. Trasnlation: “A teoria do risco integral constitui uma modalidade extremada da teoria do risco em que o nexo causal é fortalecido de modo a não ser rompido pelo implemento das causas que normalmente o abalariam (v.g. culpa da vítima; fato de terceiro, força maior). Essa modalidade é excepcional, sendo fundamento para hipóteses legais em que o risco ensejado pela atividade econômica também é extremado, como ocorre com o dano nuclear (art. 21, XXIII, ‘c’, da CF e Lei 6.453/1977). O mesmo ocorre com o dano ambiental (art. 225, caput e § 3º, da CF e art. 14, § 1º, da Lei 6.938/1981), em face da crescente preocupação com o meio ambiente.” STJ, Brazil. REsp 1.373.788-SP, Rel. Min. Paulo de Tarso Sanseverino, Date of judgement: 06/05/2014. ↩︎
  38. Translation: Nessa linha, conclui-se que a existência de direitos fundamentais individuais  não  tem  o condão  de afastar a  supremacia  do  interesse público   no   que   se   refere   à   conservação   de   um   meio   ambiente ecologicamente equilibrado e sadio à qualidade de vida .Ante   o   exposto,   EXTINGO   O   PROCESSO,   com   julgamento   demérito, em relação ao Espólio de Orleir Messias Cameli e a Marmud Cameli Ltda, com base no art. 487, III, b do Código de Processo Civil de 2015, ficando prejudicado o Recurso Extraordinário; e sugiro a fixação da seguinte   tese:   “É   imprescritível   a   pretensão   de   reparação   civil   de   dano ambiental. STF, Brazil. RE:654833/AC. Rel. Min. Alexandre de Moraes, 2020. Available at: https://portal.stf.jus.br/processos/detalhe.asp?incidente=4130104. ↩︎
  39. STF, Brazil. General repercussion in Extraordinary Appeal 1.427.694/Santa Catarina. Reporting Justice Rosa Weber. Date of publication: 01/09/2023. Available at: https://portal.stf.jus.br/processos/downloadPeca.asp?id=15360808802&ext=.pdf. Accessed on: 16 September 2023 ↩︎
  40. G. Scarselli. La nuova azione di classe di cui alla legge 12 aprile 2019 n. 31. Jusicum. 2019. ↩︎
  41. G. Alpa. Interessi diffusi, in Digesto delle discipline privatistiche. Sezione civile, vol. IX, Torino: UTET, 1993, 609-617. ↩︎
  42. G. Iudica, Diritti diffusi, Enciclopedia del Novecento, III Supplemento, 2004. Available at: https://www.treccani.it/enciclopedia/diritti-diffusi_(Enciclopedia-del-Novecento)/ ↩︎
  43. As in the Italian Constitution: “ARTICLE 9: The Republic promotes the development of culture and scientific and technical research and protects the landscape and the historical and artistic heritage of the nation.” Italy, Constitution of the Italian Republic, 1947. Available at: https://www.senato.it/sites/default/files/media-documents/COST_PORTOGHESE.pdf. ↩︎
  44. Here, we adopt Rocha’s position in the sense that environmental protection must be thought in an integrated way with universal health protection, and that the ecological crisis has an important relationship with the health crises evolving, for example, the COVID-19 pandemic. L. R. L. Rocha. The environmental emergency room: protecting the rights of nature in Latin America. Brazilian Journal of Public Policy. Brasília, v. 10, n. 3, 176, 2020. ↩︎
  45. S. Terracino. La responsabilità civile in materia ambientale: tra risarcimento, sanzione e principio di precauzione. Laurea thesis in private law 2, rapporteur A. Zimatore,115. ↩︎
  46. Italy. Constitutional Law 11 February 2022, n. 1. Official Gazette of the Italian Republic. General Series. N. 44. 2022. ↩︎
  47. I. W. Sarlet; T. Fensterseifer, Direito Constitucional Ecológico. 7. ed. São Paulo: Editora Revista dos Tribunais, 2021, 59-61. ↩︎
  48. “Principle 3: The right to development must be exercised in such a way as to respond equitably to the development and environmental needs of present and future generations.” UN. Rio Declaration on Environment and Development. Rio de Janeiro: UN, 1992. Available at: https://www.un.org/esa/dsd/agenda21_spanish/res_riodecl.shtml. Accessed on: 06 July 2023. ↩︎
  49. P. G. Monateri. La Responsabilitá Civilie. Torino: Torinese, Italia. 1998, 650. ↩︎
  50. Translation: “Qualunque fatto doloso o colposo che comprometa l’ambiente […] obbliga l’autore del fatto al risarcimento del danno […] ll giudice ove non sia possibile uma precisa quantificazione del danno, ne determina l’ammontare in via equitativa tenendo comunque conto della gravità della colpa individuale, del costo necessario per il ripristino, e del profitto conseguito dal trasgressore […]” Italia, Corte di Cassazione. 1 September 1995, n. 92111, RCP, 1996. ↩︎
  51. U. Salanitro. Compensation for environmental damage: a confrontation between old and new disciplines. In: F. Alcaro; et al. Vallori dela persona e modelli di tutela conto i rischi ambientali e genotossici. Firenze: University Press. 2008, 341-342. ↩︎
  52. M. Maccaroni. Environmental damage. Revista elletronica di diritto publico, di diritto dell’economia e di scienza dell’amministrazione. 2012. ↩︎
  53. Article 1 reads: “The purpose of this Directive is to establish a framework of environmental liability based on the ‘polluter pays’ principle, to prevent and remedy environmental damage.” ↩︎
  54. E.U. Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004. Official Journal of the European Union. L.143/75. 20/04/2004. Available at: https://eur-lex.europa.eu/legal-content/PT/TXT/PDF/?uri=CELEX:32004L0035&from=EN ↩︎
  55. A. H. Benjamin. Responsabilidade Civil Pelo Dano Ambiental. Revista Brasileira de Direito Ambiental, v.9, p. 5-52, jan-mar, 1988. Available at: https://revistadostribunais.com.br/maf/app/delivery/offload/get?_=1655410574323. ↩︎
  56. M. Maccaroni. Il danno ambientale. Revista elletronica di diritto publico, di diritto dell’economia e di scienza dell’amministrazione. 2012. ↩︎
  57. S. Terracino. La responsabilità civile in materia ambientale: tra risarcimento, sanzione e principio di precauzione. Laurea thesis in private law 2, rapporteur Mr A. Zimatore,115. ↩︎
  58. E.U Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004. Official Journal of the European Union. L.143/75. 20/04/2004. Available at: https://eur-lex.europa.eu/legal-content/PT/TXT/PDF/?uri=CELEX:32004L0035&from=EN Accessed on: 1 July 2022. ↩︎
  59. M. Maccaroni. Il danno ambientale.. Revista elletronica di diritto publico, di diritto dell’economia e di scienza dell’amministrazione. 2012, 9. ↩︎
  60. Italy. Decreto Legislativo 3 aprile 2006, n. 152. Gazzetta Ufficiale dela Reppublica Italiana, 2006. ↩︎
  61. Translation: Articolo 300. 1. E’ danno ambientale qualsiasi deterioramento significativo e misurabile, diretto o indiretto, di una risorsa naturale o dell’utilita’ assicurata da quest’ultima. ↩︎
  62. M. Benozzo. La responsabilità oggettiva del danno ambientale nel codice dell’ambiente.  Ambiente & Sviluppo, 2011, n, 10. p. 755. ↩︎
  63. G. D. Comporti. Il danno ambientale e l’operazione rimediale. In: A. D’Adda; I. A. Nicotra; U. Salanitro. Principi europei e illecito ambientale, Torino: G.Giappichelli, 2013, 84. ↩︎
  64. Italy. Decreto Legislativo 3 aprile 2006, n. 152. Gazzetta Ufficiale dela Reppublica Italiana, 2006. ↩︎
  65. Free translation: 4.  Non  sono  a  carico  dell’operatore  i  costi  delle azioni di precauzione,  prevenzione  e  ripristino  adottate conformemente alle disposizioni  di  cui  alla  parte sesta del presente decreto se egli puo’  provare che il danno ambientale o la minaccia imminente di tale danno: a)  e’  stato  causato  da un terzo e si e’ verificato nonostante l’esistenza di misure di sicurezza astrattamente idonee; b)  e’  conseguenza  dell’osservanza  di  un  ordine o istruzione obbligatori  impartiti  da  una autorita’ pubblica, diversi da quelli impartiti  a  seguito  di  un’emissione  o di un incidente imputabili all’operatore; in tal caso il(Ministro dell’ambiente e della tutela del   territorio  e  del  mare  adotta  le  misure  necessarie  per consentire all’operatore il recupero dei costi sostenuti. Italia. Decreto Legislativo 3 aprile 2006, n. 152. Gazzetta Ufficiale dela Reppublica Italiana, 2006. 5. L’operatore non e’ tenuto a sostenere i costi delle azioni di cui al comma 5 (…) qualora dimostri che non gli e’ attribuibile un comportamento doloso o colposo. Italy. Decreto Legislativo 3 aprile 2006, n. 152. Gazzetta Ufficiale dela Reppublica Italiana, 2006. ↩︎
  66. S. Terracino. La responsabilità civile in materia ambientale: tra risarcimento, sanzione e principio di precauzione. Laurea thesis in private law 2, rapporteur A. Zimatore,118. ↩︎
  67. Environmental damage in the strict sense is understood as collective property damage to the environment, which has the community as its victim and refers to the diffuse right to a healthy and balanced environment. Its protection, therefore, can be seen as collective J. R. Leite; P. A. Ayala. Dano Ambiental. São Paulo: Groupo Gen, 2019. ↩︎
  68. U. Salanitro. Il risarcimento del dano all’ambiente: un confronto tra vechia e nuova diciplina. In: F. Alcaro; et al. Vallori dela persona e modelli di tutela conto i rischi ambientali e genotossici. Firenze: University Press. 2008, 341-342. ↩︎
  69. P. G. Monateri. La Responsabilitá Civilie. Torino: Torinese, Italia. 1998, 921. ↩︎
  70. Free translation: “Ne segue il pieno riconoscimento che nella matéria ambiental uma prova completa e minunziosa del dano è obiettivamente impossibile, Inanzitutto perché alcuni effetti pregiudizievoli, pur costituendo um pregidizio certo, si evidenziano solo com il tempo, in secondo luogo perché alcuni sono di dificilíssima dimostrazione”. P. G. Monateri. La Responsabilitá Civilie. Torinese: Torino, Italia. 1998, 922. ↩︎
  71. U. Salanitro. Il risarcimento del dano all’ambiente: un confronto tra vechia e nuova diciplina. In: F. Alcaro; et al. Vallori dela persona e modelli di tutela conto i rischi ambientali e genotossici. Firenze: University Press. 2008, 341-342. ↩︎
  72. M. Maccaroni. Il danno ambientale. Revista elletronica di diritto publico, di diritto dell’economia e di scienza dell’amministrazione. 2012. ↩︎
  73. B. Pozzo. La Responsabilità Civile per danno ambientale. In: S. Nespor.; A. L. Cesaris. Codice dell’ambiente. Second Edition. Milano: Giufrè. 2003, 266. ↩︎
  74. P. G. Monateri. La Responsabilitá Civilie. Torino: Torinese, Italia. 1998, p. 925. ↩︎
  75. “Diritto fondamentale dela persona ed interesse fondamentalle dela colletività” Italia. Corte Costituzinoale, n. 210, RGA, 1987, 334. ↩︎
  76. Italy. Corte Costituzinoale. 30 December 1987 n. 641, FI, 1988. ↩︎
  77. Italy. Corte di Cassazione. 1 September 1995, n. 92111, RCP, 1996. ↩︎
  78. Translation: Sia con riguardo all’esercizio di attività pericolosa, sia in tema di danno cagionato da cose in custodia, è indispensabile, per l’affermazione di responsabilità, rispettivamente, dell’esercente l’attività pericolosa e del custode, che si accerti un nesso di causalità tra l’attività o la cosa e il danno patito dal terzo: a tal fine, deve ricorrere la duplice condizione che il fatto costituisca un antecedente necessario dell’evento, nel senso che quest’ultimo rientri tra le conseguenze normali ed ordinarie del fatto, e che l’antecedente medesimo non sia poi neutralizzato, sul piano eziologico, dalla sopravvenienza di un fatto di per sé idoneo a determinare l’evento. Pertanto, anche nell’ipotesi in cui l’esercente dell’attività pericolosa non abbia adottato tutte le misure idonee ad evitare il danno, realizzando quindi una situazione astrattamente idonea a fondare una sua responsabilità, la causa efficiente sopravvenuta che abbia i requisiti del caso fortuito – cioè la eccezionalità e l’oggettiva imprevedibilità – e sia idonea, da sola, a causare l’evento, recide il nesso eziologico tra quest’ultimo e l’attività pericolosa, producendo effetti liberatori, ciò anche quando sia attribuibile al fatto del danneggiato stesso o di un terzo. Italia, Cassazione civile., sez III, 10/03/2006, n.5254, In: Giust. Civ. Mass., 2006. ↩︎
  79. As seen in Article 225 of the Brazilian Constitution of 1988 and Articles 9 and 32 of the Italian Constitution of 1948. ↩︎
  80. C. A. Lunelli. Italian jurisdiction, ideology and environmental protection. Caxias do Sul: EDUCS, 2017. ↩︎
  81. M. Benozzo. La responsabilità oggettiva del danno ambientale nel codice dell’ambiente.  Ambiente & Sviluppo, 2011, n, 10, 755. ↩︎
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