The State as indirect polluter and the right to sustainable development: administration liability and the case of Brazilian mining company Samarco

Abstract

The advent of Sustainable State imposes a sustainable development model, by a law fit to recognize ownership of the future generations fundamental rights and protect it properly. Since the environment is essential asset to health and quality of life of current and future generations, in civil law such protection occurs predominantly through the objective civil liability of the polluter. Therefore, pollutter is the direct agent and also the indirect, both in a liability relationship. In this sense, it is possible to identify the duty of State action both preventively as repressively, to prevent the realization of the damage and the liability of the State as an indirect polluter. Specifically in the case of damns disruption of Brazilian mining company Samarco, it is found that this was also the result of a systemic failure of the Public Administration, contrary to the Constitution and International Treaties, even though there was successive damages caused in the past by such events as a result of mining activity in Brazil. Thus, this paper looks for to identify dysfunctions in the rules of the subjective Administration liability by omissions acts, especially making use of the modern privatist doctrine of liability for environmental damage.