ILO/Lexology: Proof of noise pollution: can TJSP ruling set a new standard regarding burden of proof?

*This article was originally published in the Litigation-Brazil Newsletter of the International Law Office – www.lexology.com/commentary

 

Introduction

In March 2022, the Fifth Chamber of Public Law of the São Paulo State Court (TJSP) granted an appeal filed by a defendant who was accused of excessive noise or noise pollution. In the ruling, the TJSP waived the reversal of the burden of proof granted by the lower court.(1)

In accordance with item I of section 373 of the Brazilian Civil Procedure Code, the burden of proof is not to be imposed upon the defendant when evidence can be provided by the claimant.

Lower court

The lower court granted the public prosecutor motion under the Brazilian principles of environmental law (prevention, precaution and “polluter pays”). Brazil’s Superior Court of Justice (STJ) precedent No. 618 related to the reversal of the burden of proof in environmental matters, in a case where excessive noise or noise pollution was under review.

In general, the lower court ruled that excessive noise and noise pollution was a sort of environmental damage and, therefore, is subject to STJ precedent No. 618.

Under STJ precedent No. 618, reversal of the burden of proof is allowed in lawsuits related to environmental damage. In other words, in such lawsuits, the burden of proof regarding the existence, extension and/or consequences of environmental damage may be brought upon the defendant, not the claimant.

TJSP

Reviewing the appeal filed by the defendant accused of excessive noise or noise pollution, TJSP Judge Maria Laura Tavares dissented and stated that excessive noise or noise pollution could not be understood simply as a sort of environmental damage, as the lower court had ruled.

She stated that excessive noise or noise pollution differs from general environmental damage as it does not leave traces. Thus, precedent No. 618 cannot be applied to the matter.

What shall be applied is the general rule under section 373 of the Brazilian Civil Procedure Code, which states that the burden of proof is upon each party to prove the alleged facts. Under item I of section 373, the court cannot impose the burden to produce negative evidence on the defendant when this evidence can be provided by the claimant (or even when it is deemed difficult for one party to produce evidence and easy for the counterparty).

Thus, in an excessive noise or noise pollution matter, the burden shall remain with the prosecution.

Comment

Precedent No. 618 is widely used in environmental lawsuits to assign parties accused of pollution the burden of providing sufficient and adequate evidence related to the existence, extension and/or consequences of environmental damage. It is generally known that this practice in environmental matters makes it difficult for accused parties to know what should or not be evidenced.

In such cases, this practice is extremely relevant to the case. However, precedent No. 618 is inapplicable in this case due to the fact that the environmental damage was traceless. Although the TJSP ruling related solely to excessive noise or noise pollution, it could be extended to apply to other sorts of traceless environmental damage and could even cause a review of precedent No. 618 before section 373 of the Civil Procedure Code by the STJ in the future.

Hopefully the Brazilian principles of environmental law (prevention, precaution and “polluter pays”) will not impose the reversal of the burden of proof anymore as a general rule, but solely on a case-by-case basis.

For further information on this topic please contact Paulo Guilherme de Mendonça Lopes or Alexandre Paranhos Tacla Abbruzzini at Leite Tosto E Barros Advogados Associados by telephone (+55 11 3847 3939) or email (paulogml@tostoadv.com or alexandrepta@tostoadv.com). The Leite Tosto E Barros Advogados Associados website can be accessed at www.tostoadv.com.

Endnotes

(1) TJSP – 5ª Câmara de Direito Público, AI 2229313-56.2021.8.26.0000, rel des Maria Laura Tavares, j 24 March 22, reg 24 March 2022.

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