UCLA Journal of Environmental Law and Policy

Brazil’s Ministério Público (“MP”), or prosecuting agency, is a unique institution. Unlike public prosecution entities in other countries, such as federal prosecutors in the United States, the MP is the primary enforcer of Brazil’s environmental laws and initiates the vast majority of environmental public civil actions. In the United States, most environmental suits are citizen suits filed by private actors, but in Brazil, the MP files almost 96 percent of those same cases. These actions have improved compliance with environmental laws and helped contribute to the MP’s reputation as an independent body, separate from the corruption known to plague other governmental bodies in Brazil. While the MP’s lawsuits have proven effective, they are adversarial in nature and preclude more cooperative means of regulation. Additionally, prosecutors within the MP feel as if they must respond to every complaint they receive, which keeps them from prioritizing the largest environmental harms. As scholars like Robert Kagan, John Scholz, and John Braithwaite have noted: a rigid, punitive style of enforcement may not be appropriate in all situations with all regulated actors. This legalistic manner of enforcement creates tension between the MP, the regulated actors, and environmental agencies; slows the enforcement process; and strains the MP’s limited resources.

This paper proposes creating a second branch of the MP’s offices: a more mediative style of enforcement for less culpable actors, in line with actions that certain members of the MP’s office have already begun to take. Prosecutors within this mediative branch would go beyond judicial remedies and would collaborate with environmental agencies, government bodies, and community members to solve challenging environmental problems. This plan is already within the range of autonomy given to the MP and would allow the MP to retain its reputation as an independent, un-corruptible enforcer, while also remedying some of the problems and inefficiencies that result from the current rigid, legalistic enforcement style.