On October 30th the Superior Court of Justice published Precedent number 618, which recommends the application of the reversal of the burden of proof in environmental degradation lawsuits.
In the environmental sphere, proof is circumscribed to the terms of the rules of civil procedure. In effect, under the terms of article 373 of the Code of Civil Procedure, the burden of proof is on the plaintiff in relation to the fact constituting his right, whereas in relation to the defendant, it is on him to prove the existence of an impeding, modifying or extinguishing fact of the plaintiff’s right.
Precedent 618 is procedural in nature, and goes against what is usually adopted, applying the reversal of the burden of proof provided for in the Consumer Protection Code in environmental proceedings, based on the precautionary principle and the polluter’s objective responsibility provided for in art. 14, § 4 of the National Environmental Policy Law (Law 6938/1981).
In this sense, imposing on the alleged polluter the proof that his activity did not cause environmental degradation generates great legal uncertainty, since in the environmental law it is not always possible to prove the extent of degradation.
Furthermore, it is essential that questions involving the theme be carefully observed, since one of its probable consequences will be the filing of lawsuits with generic requests, which will transfer the costs of the expertise – indispensable in most cases – to the accused, who will then acquire all the responsibility for the production of the procedural evidence.
Thus, the application of the Precedent to concrete cases will require a prior examination of the compatibility between the limits of the legal thesis summarized, and the particularities of the concrete case.
The DDSA’s environmental team is available for further clarifications and assistance in cases involving environmental damage issues.