On environmental protection from the Perspective of the Brazilian public prosecutors of the environmental justice

Keywords: Brazil prosecution, environmental justice, environmental public interest litigation

Summary: difficulty in enforcement of environmental Law is a common problem in developing countries, Brazil as a developing country is no exception, although the Brazilian environmental legislation relative to other developing countries better, but because of environmental administrative capacity of Law enforcement agencies and Law enforcement will have a lack of adequate long-term status of implementation of environmental Law in Brazil is poor. To solve this problem, Brazil in the late 1980s changed the constitution, the constitution clearly stipulates the environmental rights of citizens, especially by strengthening the position of the prosecution and power, and make it a public interest advocate for the environment means to promote environmental Law enforcement. This Article is intended to explore the Brazilian prosecutorial authorities through judicial intervention in environmental law enforcement activities of the reasons for the path, the effectiveness and shortcomings, and lessons are drawn from a number of our useful lessons.



First, Brazilian prosecutors involved in the implementation of environmental law background

Brazilian environmental legislation Development process and most countries can be traced to the 20th century page. The first major legislation on the protection of natural resources, such as the 1938 <<Fisheries Act>> (794 / Act No. 1938), [ 1] 1965 <<Forest Code>> (4.171 / 1965 of the federal Act), [2] 1934 <<Water Code>> (24.643 / 1934 of the federal order), [3] 1967 the "Mining Act>> (227 / Act No. 1967) [4], etc. As these laws in pursuit of economic interests for the purpose, they can not yet be considered a true sense of the environmental legislation.

Stockholm 1972 "Conference on Human Environment" to promote the Brazilian environmental legislation in the true sense, although at the Stockholm Conference, the main spokesman for Brazil as a developing country, with the argument developed different methods to solve environmental problems, he had declared that "the most Elie pollution is poverty "in developing countries to solve the problem of poverty is top priority. Danshi, Cici meeting, Brazil, or Environmental Protection Caiqu many substantive move, including the beginning of modern environmental legislation on the meaning of 8 .1981 31, Brazil issued a landmark <<National Environmental Policy Act>> (6.938 / 1981 of the federal Act), [5] Subsequently, in 1989 the law for the 7804 / 1989 as amended by Federal Law . <<National Environmental Policy Act>> is the first in Brazil to protect the environment as a whole, and comprehensive provisions of the Basic Environment environmental issues the same time, it set the basic framework of Environmental Protection, including the system of environmental standards, environmental planning system, environmental impact evaluation system, a special area protection system, environmental licensing system, environmental monitoring, and economic stimulation system. It also provides for environmental violations of administrative, Civil and criminal liability, established strict liability for environmental damages, etc. [6]

<<National Environmental Policy Act>> determine the national environmental management system, including: (1) National Environment Commission (CONAMA) is responsible for discussing and developing national environmental policies, standards and resolutions, etc., (2) Ministry of Environment and other central agencies responsible for environmental policy coordination, supervision and control, (3) Environment and Renewable Resources Institute (IBAMA) is responsible for enforcing federal environmental policies and laws; (4) at the state level, state agencies responsible for implementation and enforcement of environmental law; (5) refers to local bodies municipal level, where the establishment is responsible for implementation and enforcement of environmental law organization.

In 1985, Brazil ended its 21 years of military rule, there have been significant changes in the Political system In order to adapt to new Political change and public demand for Civil rights in Brazil in 1987 after the drafting and discussion of the new "constitution>>, In 1988 Parliament adopted a new constitution <<Constitution>> in the new <<Constitution>> PArt III Chapter VIII, devoted to the protection of the contents of the section is only one provision that is 225, which contains 6 section which gives the first clear the environmental rights of citizens, that everyone is entitled to an ecological balance of the environment, public access to environmental interests together to ensure a healthy quality of life is critical, government agencies and community groups in order to protect present and future generations interests should fulfill their obligations. which the first paragraph of the government's environmental responsibilities and obligations. at all levels of government obligations include: to protect and restore the ecological environment and basic species and ecosystems management; conservation of biological diversity and country's genetic resources, states are required by law to require any significant deterioration in the environment may lead to the activities of the prior environmental impact assessment, the state obligation for production, business activities and related techniques, methods and substances generated in the process of using the life quality of life and environmental risk control, public bodies should actively promote environmental education at all levels to raise public awareness of Environmental Protection; to protect plants and animals, prohibiting the ecological functions will result in the risk of flora and fauna, threatening the survival of species and animal abuse. The second paragraph states the main mineral resource Development activities obliged by law and the competent depArtment of the technical requirements for recovery of the damaged environment. to Article environmental damage caused by institutions and individuals should be subject to criminal sanctions and administrative penalties and compensation for the damage. 第四款 determine the Brazilian Amazon forest areas, wetlands and coastal areas 马图格罗索 the other regions as pArt of national heritage, and their use of natural resources must be in accordance with law, and ensure compliance with environmental requirements. paragraph V legacy of the colonial period, the land allocated to states, or boundary movement by states to obtain the land belongs to all states, but based on the purpose of protecting the ecology of the transfer is not allowed. nuclear power plants to whom paragraph 6 location determined by the federal law, or can not install the building. [7] 1988 <<Constitution>> for Environmental Protection is important, first, it made clear at the constitutional level environmental rights of citizens, followed by its further clarify the government's environmental responsibility, and the third is that it provides a comprehensive environmental affairs in Brazil in addition to Article 225 of the Constitution is still the eighth chapter of the "social program" provides details of Environmental Protection, as many as 37 relevant articles.

In 1998, Brazil has developed another important law, the <<Environmental Crimes Law>> (Section 9.605 / 98 of the federal Act) of the Act on the legislation relating to environmental law at the criminal and administrative sanctions provisions of the codification. administrative sanctions, the Act from 50 reals (reais) to Vila Real 50 million administrative fine ranging from The law of criminal acts, including abuse and unlawful killing of animals, Lankan, deforestation, pollution, destruction of historic preservation sites, government agencies, false statements or incomplete disclosure of environmental information, as well as illegal license, etc. the law of double punishment, individuals and legal entities may be subject to criminal sanctions including imprisonment types, home under house arrest, community service, access to government contracts and subsidies to cancel qualification, fines, etc. The Act also provided according to the needs of a number of environmental penalties innovative mechanisms, such as may be sentenced to one year in prison and the criminal prosecution bodies can plea bargain to reconciliation, may be sentenced to a year crime than imprisonment if the defendant to take measures to repair the damage to the environment and meet the other requirements of the case, the sentence can be suspended for two years [8] <<Environmental Crimes Law>> both of 1988 <<Constitution>> of complement to replace the previously scattered in several Brazilian legislation (such as <<Hunting Act >>,<< >>,<< Forest Code, the Fisheries Law>> etc.) in terms of criminal law.

Brazilian environmental legislation from the content to the system, is already quite mature, and even some scholars believe that its called the world's most advanced system of environmental law [10] However, with most of the developing countries, Brazil's environmental law enforcement in the long-term weak state of Brazil in the early impact of environmental legislation by the external force greater than the domestic factors that form is more important than substance, [11] which is its inherent the same time, the government will not strong law enforcement, law enforcement and operability are also weak Brazil's environmental law enforcement rely mainly on environmental administration, the 1970s and 1980s large numbers of urban environmental pollution and the Amazon forest loss and other issues, causing concern at home and abroad, environmental issues became a Political priority of the Brazilian a matter of federal and Sao Paulo, southern Brazil and several other state environmental agencies in all aspects of the rapid expansion of São Paulo state environmental agency is a national role model, but since the late 1980s, with the debt crisis in Latin American countries over the as well as the accompanying financial crises, the Political winds shift, the government adopted a series of fiscal reform measures to cut spending and freeze hiring staff, the Environmental Protection department of severe shortage of resources, lower wages and worsening working conditions, a large number of professionals loss, shortage, environmental and administrative law enforcement position of strength are in decline. To IBAMA, for example, when the agency was established there in 1989 staff 6230 people, peaked in 1991 when people who have 6544, then began to shrink staff in 2000, only 5266 people, which, according to a 1991 internal study , IBAMA 12,000 people need to fully discharge its responsibilities. [12] environment inherent in administrative law enforcement and other defects, such as the low status of the government structure, the influence of small, often lack the necessary resources to develop the necessary technical equipment and technology law enforcement capacity, lack of independence by the government, too much outside interference, corruption and other problems have been plaguing the Brazilian environmental law enforcement.

Second, Brazilian prosecutors involved in the Political and legal basis for Environmental Protection

(A) the political basis

Brazil's 1964-1985 military government between the implementation of the rule, although the beginning of the leftist opposition groups and imposed a number of severe repression, but in general, the military government dominated by moderates, in the elimination of the After the threat of leftist, Democracy advocates gradual recovery from the late 1970s, the military government began implementing the "controlled Democracy, open" and "planned transition to Democracy." [13] This re-democratization of Brazil in Without a strong political opposition under pressure from top to bottom of. [14] re-democratization of the key measures is to strengthen the role of parliaments and a multiparty system. This community was also formed some of the basic ideas and political culture: the traditional rights of individuals not solve the problem of social injustice, there is a need to clarify social and public rights, countries need to face the urgent issue is not only economic Development but also social progress in electoral system in addition to the need for a new political participation. [15] As the military government's rule led to the public's trust in greatly reduced, the Council hopes to set up to protect Democracy and Civil rights of the systems and institutions. Brazil's Public Ministry (Public Ministry, hereinafter referred to prosecutors) is equivalent to other countries Procuratorate. The government structure as a protector of public interest in so the right time to fit such a political culture and needs to be given the protection of Civil rights and safeguard the special mission of public interest in the deepening environmental crisis, environmental benefits, public attention was increasingly positioned as a public interest in the context of public interest on behalf of the environment has become an important function of prosecution agencies.

And prosecution agencies around the world, like Brazil's prosecutors have been given the initial function is to represent the state prosecution of a criminal offense, its functions were later expanded to a special group to assist in Civil cases (such as the disabled, women and children, ethnic minorities, etc.) claim their rights. Brazilian prosecutors have historically were under the administrative and judicial bodies, most of the time is an administrative body, but in 1988 <<Constitution>> given its institutional independence from executive control to become an independent "fourth sector." trajectory of Development of Brazilian prosecutors and other countries is different: First, it is in the 1980s after the Constitution explicitly authorized representative of the public interest, and secondly, its status and the gradual strengthening of the independence, in Environmental Protection and gradually strengthen the position and role is an extension of its functions and legal result of the Development.

(B) the legal basis

1981 Brazil <<National Environmental Policy Act>> requirement, the prosecution can not only public interest involved in civil litigation on behalf of the environment, but also bring a civil action.

In 1985, Brazil <<Civil Procedure Community>> (7.347 / 1985 of the federal Act) was promulgated. The Act establishes a public interest Environmental Protection, [16] authorized the general public, the required environmental organizations, the prosecution and other government agencies, can represent the interests of damage to the environment, consumer rights and the arts, aesthetic, historical and landscape value of the public interest litigation in the civil courts. The law created a new era in the Brazilian legal order, it shows that not only protect the judicial process individual interests, but also an effective tool to protect the public interest. The prosecution agencies are involved in the civil law field to create a new world, the prosecutors truly become a protector to protect the public interest.

1988 Brazil <<Constitution>> to expand the functions of prosecution agencies, strengthening the independence, status greatly improved. The <<Constitution>> with three provisions, namely 127,128 and 129 to specify the responsibilities of prosecutors , authority. section 127 is positioned on the basic provisions of prosecution agencies, prosecution agencies are clearly of vital importance to the national judicial system is responsible for protecting the legal order, Democracy and inalienable social and individual interests of the permanent institutions. granted prosecutors equivalent to the Court's independence and autonomy, it can be <<Budget Guidelines Law>> set in proportion to the draft budget, the approved budget, prosecutors have sufficient autonomy to carry out job configuration and resource allocation. [17] Section 128 provides that the prosecutor's office to protect First, federal prosecutors appointed by the President, the Attorney General, the Senate approved, the state attorney general appointed by the governor for a term of 2 years. Only the federal Attorney General's consent to the Senate majority dismissed by the president, state Attorney General and only the consent of a majority in the state legislature in order to be dismissed. Second, prosecutors work after two years of probation to life after job, only through the judicial process in order to remove them from office. Finally, the prosecutor can not reduce wages, while the terms of the prosecutors office set limit, if not as a private lawyer, can not receive additional fees in their own work and private reimbursement, can not participate in political party activities, in addition to the judge's positions, can not serve in any other public body, etc. [18] Article 129 lists the functions of prosecution bodies of nine, in addition to the traditional criminal prosecution of exclusive functions, other functions include: to actively promote and ensure that government actions and to respect the constitutional rights of other public services, through a civil investigation and public interest litigation to protect the public and social heritage, environmental and other public interests, protect the rights of indigenous peoples and monitor policy implementation, etc. [19] 1988 <<Constitution "after the commencement of years, Brazil has promulgated a series of public interest legislation, and to authorize prosecutors to protect, such as the 1989's <<Disabilities Act>> 1990 <<Children France>> 1990 <<Consumer Protection Code>> 1994 <<antitrust>> so, where <<Consumer Protection Code>> Of particular concern, because it changes the public procedure, making public interest litigation system can be used to protect any public interest.

Third, the Brazilian prosecutorial authorities ways and mechanisms for environmental justice

1988 <<Constitution>> to the Brazilian Environmental Protection agencies in the prosecution's position greatly strengthened, the prosecution widely involved in environmental protection, and prosecution agencies to form a unique environment of justice, in a certain extent, compensate for environmental law enforcement is too weak and not in place defects, and further declared to the public, the environment, environmental law and policy importance and authority. Prosecutors environmental justice actions include the following:

(A) conduct a civil investigation

Prosecution agencies to carry out a civil investigation is the starting point for intervention in environmental cases. Prosecutors are often based on three reasons, start a civil investigation: First, as public complaints, the second is the administrative arrangements, the third, he has discovered clues. Civil investigation include collection of real or potential environmental damage information. <<Community Procedure>> that any individuals and organizations have the right to make a complaint, the complainant can provide relevant information to the prosecution authorities, administrative authorities have an obligation with prosecutors of the investigation in the civil investigation, prosecutors can request any criminal sanctions, backed by individuals and organizations to provide information within the time prescribed, reject, delay or failure to provide prosecutors asked for the necessary public interest litigation filed technical information, may be sentenced to three years imprisonment and a fine. Under normal circumstances, the prosecution will ask environmental agencies to provide relevant documents and technical reports, if the prosecutors have doubts of these materials, other than the executive can seek expert advice .

(B) The mediation outside the court

Once the prosecutor in the investigation of a problem for the collection of adequate information material, they usually first through mediation outside the courts to solve the problem, rather than a direct proceedings. Most of the environmental civil investigation and prosecution agencies are parties to reach "behavior modification agreement" in the form of mediation concluded. "behavior modification agreement" to determine the parties need to take measures to remedy environmental damage and economic sanctions violate the agreement if the parties do not comply with the agreement, the prosecution can apply to the courts to enforce agreements in this class proceedings, the prosecution in favor of a high rate, because the agreement itself has been charged that the parties recognize and accept the agreement to determine the virulence of the punishment. the reality of the parties are more willing to conclude and implement "behavioral adjustment agreement" because they recognize that Once they fail to abide by the agreement will lead to public interest litigation in civil or criminal prosecution in relation to litigation, this problem-solving approach also saves time and money from the social point of view, problem solving outside the courtroom can get more support and reduce confrontation, their social and environmental benefits are better.

(C) the public interest litigation filed a civil

If the civil investigation confirmed the environmental damage, while outside the court's "behavior modification agreement" when they can not be reached, the prosecution will bring civil actions for environmental damage public interest litigation, the legal responsibility to pursue the perpetrators and prevent the occurrence of damage and many prosecutors Officer considers this decision at this time does not belong to prosecutors the discretion of the scope, but their duties dictates. [20] where environmental damage has occurred, the court will order the Jiahai Zhe supported by the GEF to the Government's compensation, or require them to take to protect the environment or limit them to take some action when the risk of environmental damage has occurred, the court in making the final substantive decision, the parties will issue a pre-ban as an emergency measure, order the parties to take certain actions or to limit their. prosecutors have issued an injunction in advance to provide sufficient legal basis, indicating that if you do not take such emergency measures, the interests involved in the litigation will not remedy.

Although the Brazilian procedural law provides for the public, environmental groups, institutions and individuals and so prosecutors can bring public interest litigation as a plaintiff, but from the current situation, about 97% of the public interest litigation filed by the prosecution. [21] the Government is inclined to take warnings, fines and administrative sanctions such as closing a business to solve the problem, environmental groups often choose to prosecution complaint, or as co-plaintiffs with the prosecution and prosecution agencies, and rarely prosecute their own direct, which shows the prosecution in Brazil the status and capacity of institutions have been fully recognized, but also reflects the actions of environmental groups in developing countries is not strong, the need for more resources to support and capacity building.

(D) prosecution of environmental crime

Prosecution of environmental crime is a traditional Brazilian prosecutors the power In 1998, Brazil <<Environmental Crimes Law>> is greatly enhanced environmental crime prosecution authorities investigated the strength of the legal liability of environmental crime, including crimes against animals, the type of crime, the crime of endangering plant , pollution, environmental crime, in violation of city management and the crime of endangering cultural heritage, including the main corporate and individual criminal Brazil <<Environmental Crimes Law "under the penalty of diversity and innovation, types of penalties, including fines, imprisonment and restriction of rights. fined by provisions of the Penal Code standard, if there are signs that even the supreme law of fixed penalty fines still not enough to punish the perpetrators, and can consider the behavior of people in the economic benefits obtained in the case imposed the maximum amount of three times the fine Weigai. [ 22] and the amount of fine is usually the extent of damage caused by crime linked to the court according to the provisions of the Penal Code the parties decision to restore the status quo. the conviction should be possible, taking into account the victim suffered personal injury or environmental circumstances, to determine the perpetrator should compensate the damage caused by their behavior the minimum amount. [23] imprisonment for a period of one to five years, non-malicious crime usually 3 years, malicious crime can be up to 5 years to limit the power of the penalty of community service , suspended the right to suspend some or all of the activities, cash payments and home detention, etc. [24] a variety of penalties may also impose a single place, but in the following circumstances, can reduce the perpetrator's punishment: actors take the initiative to restore its or damage caused by efforts to reduce their level of environmental degradation caused, the perpetrator will promptly inform the risk of environmental degradation occurs, the perpetrator and the agencies responsible for environmental monitoring, etc. [25]

Fourth, the Brazilian prosecutorial authorities and limitations of the effect of environmental justice

(A) the effect of environmental justice prosecution service

1, to enhance the level of environmental compliance

With the legal status of prosecutors increased gradually, especially in Brazil in 1988 <<Constitution>> to expand its authority and independence, the prosecutors Brazilian environmental politics has become the most powerful institutions. Prosecutors through the environment issues civil investigation, mediation, public interest litigation filed civil and criminal prosecution, will help change the environment in Brazil have long plagued the rule of law is weak and administrative enforcement of environmental problems is not in place for illegal business environment, the civil administrative penalties and criminal punishment than more deterrent. administrative penalties, including warnings, fines and closing a business, etc. fine after the warning is usually made in an amount not high, the rate of implementation is poor. closing a business is a harsh punishment, but the environmental authorities for political and social pressures rarely used. prosecution agencies involved to make offenders face civil and criminal sanctions imposed civil sanctions is without fault, liability for environmental damage in the form of restitution or compensation for losses, which could make violators ruin. criminal jail will be responsible for these strong sanctions to force offenders choose a cooperative attitude with prosecutors reached a "behavior modification agreement" to take specific measures to prevent or remedy environmental damage.

2, on the Government to fulfill its responsibility to form an effective environmental monitoring

Because the Constitution and the law gives prosecutors the various powers, so that it can become the executive supervisor, to further improve the administrative accountability system. More importantly, the prosecution established a "horizontal accountability" system, that prosecutors government agencies through the same level of offense or dereliction of duty from day to day supervision to pursue their civil and criminal liability, so the prosecution to a certain extent, the same level of executive accountability. Procuracy supervision is reflected in several aspects: (1 ) when conducting a civil investigation requiring the executive to provide information through the executive's response, administrative authorities to understand the environmental issues related to the case or what actions have been taken, the causes, etc. (2) outside the executive branch to take the court measures. prosecutors Once the executive may be illegal or negligent behavior will take further action under normal circumstances, they will continue the investigation, focusing on executive behavior, including requiring more and more detailed information or experts to assess the work of the Executive, this process will usually result in some executive changes in the information collected on the basis of, the prosecution may try to negotiate with the executive, to conclude a "behavior modification agreement" to change the administrative body behavior. prosecutors to the executive may issue a written "Attorney proposal" that the unlawful act or work in other issues, make recommendations to correct (3) public interest litigation filed against the executive When the executive acts or omissions of damage or threat to the environment, the prosecution can bring environmental public interest litigation, stop environmental violations, requires restitution or compensation for environmental damage. procuratorial institutions such measures have on the environment, administrative officials to perform duties had a substantial effect.

3, to better protect the judiciary played the role of environmental rights of citizens

First, because the prosecution involved in environmental law enforcement, the public increased access to justice in a way. Prosecutors outside the courtroom through the use of measures such as civil investigation and the "behavior modification agreement" to a certain extent, act as a mediator in disputes role is more important is the public prosecution agencies as representative of the interests of society, bring a large number of environmental public interest litigation, a considerable portion of these proceedings is relevant to its citizens and environmental groups to provide information or complaints caused due to weak forces, resources lack of public and environmental groups also hope to rely on prosecutors to help solve their environmental concerns, prosecutors filed by public interest litigation, rather than their direct indictment, the prosecution became public interest into the court environment preferred channel.

Second, since the late 1980s, along with the re-democratization process in Brazil and in 1988 <<Constitution>> The promulgation and implementation, the court also concerned about the environment, and gradually other public interests, the interests of access to justice for those with more opportunities. This shift is based on two consensus first, the court should exercise the legislative and administrative action review of the constitutionality of the power to uphold the constitution and the rule of law. The second is a series of already established new social needs of public and collective rights judicial protection. [26] In response to this shift, the Court expanded the staff size, and gradually improve the institutions and procedures. prosecutors filed a public interest litigation through the courts to promote this shift, so that the judge in resolving social and political are closely linked to public interests become crucial role in the conflict, while the environmental public interest litigation is asking the court to effectively protect the environmental rights of citizens of the most important means.

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(B) the prosecution service barriers and limitations of environmental justice

Prosecution service's active involvement in the environmental field has encountered many obstacles and resistance.

1, from the resistance within the court system, although the courts for environmental and other public interest concerns are increasing, but the exercise of the court for prosecution on behalf of social and public interests have a greater power of resistance, which mainly stems from the conservative court understanding and prejudices. a considerable part of the judges do not understand the environmental law, environmental law is not learning, fail to recognize that protecting the public interest for the protection of environmental rights of the importance of some judges that the prosecution agencies involved in handling them slow down the progress of the intervention of the thus increasing their power handling difficult, depending on the power of prosecutors as the "competitor" for their work often do not agree to be due to prosecutorial authorities rely on the courts to achieve their ultimate power, the lack of positive response and the court would undermine its authority with .

2, judicial efficiency is too low. People on the judicial system in Brazil one of the most common complaint is the low efficiency of the courts and judicial decisions of the extension, although public interest litigation cases in all cases a very small proportion, but a survey shows that the conclusion of an environmental public interest litigation cases on average 4 years [27] cases of delayed significantly influence the effectiveness and attractiveness of public interest litigation.

3, the implementation of state environmental laws are too different. Latin American countries, Brazil ranks first in economic strength, but the regions between the economic and social development of the imbalance, the difference is very large Brazilian southeastern and southern regions of more developed economies, Northeast and long-term economic development in northwest lower than the national average, according to the Brazilian National Geographic Bureau of Statistics material, western and northern regions account for 64% of Brazil's total land area, population of the national population of 13.8 percent, but its economic In Brazil, the proportion of GDP is only 9.7%. economic development imbalances resulting layout of the Brazilian economic and irrational industrial structure and the widening gap between rich and poor [28] affected, southeastern states of Brazil, especially is the economic center of Sao Paulo state power and high level of environmental protection, the prosecution of the degree of implementation of environmental law and institutions is also high degree of perfection, but the northeastern states and intensity level of implementation of environmental law are very low. This allows the prosecution of environmental justice organization with a clear regional character and show the same independence of prosecution agencies and local governments by the local economic impact.

4, social and political justice for the anxiety. As environmental and other public interest into an increase in the judicial field, the Brazilian scholar and social concern to a growing phenomenon - the "political justice." [29] the law be protected by the prosecutors of the public interest and public policy generally, public interest litigation cases handled by the courts, will inevitably bring about public policy disputes justice in environmental cases heard, the judge often judge or administrative body as a not as the legitimacy of the executive branch's conduct of a certain degree of intervention, so that the judicial institutions have the capacity to influence government policy because of public interest litigation in the trial will influence public policy, the prosecution and the courts may be consciously or unconsciously become the Chief, legislative alternatives. prosecutors is a non-elected bodies, there may have influenced the decisions of elected bodies and officials, which could lead to a constitutional crisis. As a result, some of the legal profession and politicians have questioned whether the judiciary can provide an appropriate and effective place to resolve such disputes, constitutional concerns about judicial intervention into the part of the executive and legislative areas will lead to "control the crisis." [30] These disorders also show prosecutorial authorities involved in environmental justice limitations.

First, the prosecution's independence by many factors. Prosecutors also inevitably affected by local government, the prosecution's intervention may affect the efficiency of the executive, administrative authorities and the prosecutors cause the tensions. Prosecutorial authorities restricted the environmental justice in the court system and operation mechanism, the prosecution of the work to the courts and administrative agencies for their co-but the resistance from the two areas is still quite large, so that the role and authority of the prosecution agencies are subject to different degrees.

Second, the prosecution is difficult to form a unified judiciary. Prosecution agencies outside the court measures have helped to resolve environmental disputes efficiently and avoid judicial inefficiency, but may lead to prosecution abuse of discretion, destroy the unity of environmental justice. subject to different parts of the level of economic development and environmental awareness, the prosecution of environmental justice in various parts of the obvious differences, making the measure law enforcement is not uniform environmental costs caused by inter-regional inequality and unfair competition.

Third, the supervision and prosecution agencies still lack an effective system of checks and balances. Prosecutors the power is so strong, who monitors "supervisor" of the prosecutors of illegal or inappropriate behavior is a problem of accountability. The prosecution is too strong, would hinder the development of other social forces in Brazil's environmental organization long-term environmental public interest litigation can not play its due role, with the prosecution's strong position is not without relevance.

V. CONCLUSIONS

Difficulty in enforcement of environmental law is a common problem in developing countries, countries are looking for ways to break Brazil's experience is by constitutional amendment in the Constitution explicitly environmental rights of citizens, especially to strengthen the prosecution's position and power, and make it have the ability to become a spokesman for the environmental public interest law enforcement approach to resolve the environmental problem of weak and not in place. prosecutors environment through the exercise of a civil investigation, mediation outside the court, filed public interest litigation and prosecution of environmental crime, the environment has greatly strengthened the power of environmental law authoritative and binding, but this approach also has its limitations, such as environmental justice does not lead to unity and the lack of effective supervision of prosecutors, their role as courts and administrative bodies greatly affected by restrictions on Brazil's prosecutors Environmental justice is hard to break a law enforcement environment to explore. At present, China is hot prosecutors involved in environmental issues, environmental public interest litigation filed in particular, rationality and legality, we should explore the Brazilian way of course, drawing on Brazilian prosecutors environmental justice experience, should be a comprehensive survey of its positive role and limitations.





Notes:
[1] Decree - Law No. 794 / 1938.


[2] FederalLaw No. 4. 171 / 1965.


[3] FederalDecree No. 24. 643 / 1934.


[4] Decree - Law No. 227 / 1967.


[5] FederalLaw No. 6. 938 / 1981

[6] FederalLaw No. 6. 938 / 1981, Art. 9.


[7] Article 225 of Brazil 1988 Constitution, available at http:/ / www. V - brazil. Com / government / laws / titleV III. Html, latest visit2009 - 08 - 16.


[8] Vladimir Passos de Freitas, Brazil: EnvironmentalManagement, available at http:/ / www. Unep. Org / law / Symposium / Documents / Country_papers / BRAZIL. Doc, latest visit 2008 - 12 - 12.


[9] Lesley K. McAllister, Making Law Matter-Environmental Protection and Legal Institutions in Brazil, Stanford University Press, 2008, p. 20.


[10] Brazil in the 1970s environmental legislation, driven mainly by the Stockholm Conference, 80 years of environmental legislation is limited by the international community for the destruction of the Amazon forest imposed pressure.


[11] See supra note [9], [United States] LesleyMcAllister book, 32 - 36.


[12] Xiao-Jun Ma: <<Brazil's 1988 Constitution, the introduction of its features>> set <<Latin American Studies>> 1997 6.


[13] See Dong Jingsheng: <<about Brazil's political transition process, several issues>> containing "Latin American Studies>> 2003 3.


[14] See supra note [9], [United States] LesleyMcAllister book, p. 76.


[15] This general interest in English literature will be described as collective or diffused interests, meaning the equivalent of us are familiar with public interests.


[16] Supra note [7], Article 127.


[17] Supra note [7], Article 128.


[18] Supra note [7], Article 129.


[19] See supra note [9], [United States] LesleyMcAllister book, p. 91.


[20] Some people disagree, that the prosecutor should have the right to determine the resources for more important things, as public interest litigation will involve a lot of energy and time.


[21] See supra note [9], [United States] LesleyMcAllister book, p. 153.


[22] <<Brazilian Environmental Crimes Law>> 18. See Kuo Translation: <<Brazilian Environmental Crimes Law>>, China Environmental Science Press, 2009 edition, p. 5.


[23] <<Brazilian Environmental Crimes Law>> Article 20, supra note [22], p. 6.


[24] <<Brazilian Environmental Crimes Law>> Article 8, supra note [22], p. 2.


[25] <<Brazilian Environmental Crimes Law>> 14, with the previous note [22], p. 4.


[26] See supra note [9], [United States] LesleyMcAllister book, p. 165.


[27] See supra note [9], [United States] LesleyMcAllister book, p. 172.


[28]参见冯俊扬:<<巴西迁都推动中西部发展>>,载<<西部时报>>2007年12月15日.


[29]Cl'audio G. Couto & Rog'erio B. Arantes, Constitution, Government and Democracy in Brazil, World Political Science Review, Volume 4, Issue 2, 2008, Article 3.


[30]Sadek, Maria Tereza, Institutional Fragility and Judicial Problems in Brazil, In Growth and Development in Brazil: Cardoso's Real Challenge, edited by MDAG Kinzo and V. Bulmer Thomas, London: Institute ofLatin American Studies. 1995, p. 161.

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