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  • Guilherme Purvin

Crisis of the precautionary principle in times of climate emergency

The normalization of discourse on the new normal

Guilherme Purvin

By Senado Federal - Bento Rodrigues, Mariana, Minas Gerais, CC BY 2.0,

How is the application of the precautionary principle faring in these times of climate emergency? This question is provocative and evokes the image of a mother asking doctors in the ICU if her child is eating an apple a day.

It is necessary to recognize that the Western society's capacity to plan its actions for distant events has proved to be null. The recent planetary episode of the COVID-19 pandemic demonstrated the difficulty in understanding the necessary quarantine period to prevent coronavirus transmission: what does not generate visible and immediate effect, would have no consequence at all.

Extrapolating this immediate characteristic to the field of Environmental Law, the difficulty of ecological and climatic planning will be even more intense. We are not dealing with time scales measured in weeks, but in years, decades, and centuries. The Industrial Revolution? Oh, that's something from our great-grandparents!

At the UN Conference in Stockholm in 1972, the birth of Environmental Law was seen as the branch of law that encompasses the highest ethical values of humanity (peace, solidarity, life, health). Twenty years later, the UN Conference in Rio de Janeiro would mark the two major vectors of life defense: the protection of biological diversity and the fight against climate change. It was imperative that States and corporate entities adhere to these conventions.

The principles and goals of International Environmental Law embodied in the charters and conventions of the United Nations have always been oriented towards the future. Despite the countless warnings from the scientific community, States - read, politicians financed by large economic corporations - limited themselves to organizing media meetings, without any expectation of taking immediate and radical measures to cease the mass extinction of biological species, the contamination of rivers and seas, and the emission of greenhouse gases. It is possible to develop university theses in various fields of knowledge regarding contemporary ecological issues.

In the field of Linguistics, for example, a thesis on the intensification of the use of words and terms such as "resilience", "new normal", and "climate emergency" from the beginning of this third millennium would be valid. In Law, a study on the reduction in the number of studies on legal mechanisms for the protection of fauna and flora and the simultaneous increase in dissertations and theses on climate change, environmental refugees, soil desertification, mega-accidents, and environmental disasters would be pertinent. In Political Sociology, it would be appropriate to gather comparative data between the rise of neo-fascist mobilizations and the loss of representativeness of workers and environmentalists in parliaments.

Brazil is back in the ICU, now due to floods in Rio Grande do Sul. The new episode overshadows previous ones - the radiological disaster in Goiânia in 1987 or the sinking of the Brasken mine in Alagoas in December 2023. Or on January 18, 2000, when a Petrobras pipeline leaked more than one million and three hundred thousand liters into the waters of Guanabara Bay, affecting an area of 40 km2. What lessons have oil companies and the State learned from this event? The Mariana dam in Minas Gerais broke on November 5, 2015, resulting in one of the worst environmental tragedies in Brazil's history. The breach of the Brumadinho dam, also in Minas Gerais, occurred on January 25, 2019, causing another major tragedy, with devastating impacts on the region and the country. What is the behavior of the gigantic mining companies responsible for these environmental crimes today? Is there any news in the newspapers about stricter state supervision of these activities, so that no more people die, so that no more eco-cides occur like the one in Doce River? Will anyone remember what happened on the afternoon of August 19, 2019, in São Paulo, when day turned into night, due to the sky being covered by particles from smoke produced in forest fires in the Amazon and the Pantanal? Amidst the significant increase in the number of diseases and deaths of people due to cardiorespiratory problems, what actions have our São Paulo city councilors, our São Paulo state deputies and senators, along with the National Congress, taken to prevent their electorate from continuing to get sick and die due to the fires?

All these apparently disconnected episodes converge to a common point: the inability of current generations to think of a common future for humanity. The failure to observe the precautionary principle does not stem from the desire to repeat a tragedy, but from the conviction that the tragedy was an exceptional case, an act of God, like the fall of a meteorite on Earth's surface or, at most, the Lisbon earthquake. In Criminal Law, it would be said that the State's attitude (as a loyal representative of capital) oscillates between conscious fault (the result is foreseeable, but it is trusted that it will not occur) and eventual intent (the result is foreseeable and highly probable, nevertheless the act is performed or the necessary action to avoid injury is omitted).

When Governor Eduardo Leite and all Rio Grande do Sul lawmakers relaxed environmental legislation in the state, they had absolutely all the elements to know that it is state inaction, or rather, state action in favor of predatory and immediate economic exploitation that fosters tragedies like the one currently faced by the people of Rio Grande do Sul.

It is not ignored, of course, that the environmental causes of the tragedy precede the efforts of the Legislative and Executive Powers of Rio Grande do Sul to make environmental legislation a dead letter. There are not just one, but countless state omissions and corporate actions behind this tragedy. For example, the numerous amnesties to environmental degraders throughout the first decade of this century and the subsequent repeal, in 2012, of the 1965 Forests Federal Law (Código Florestal - Lei 4.771/65).

For those who did not have a family member killed in Mariana or Brumadinho, for those who are not Yanomami or Krenak, for those who did not depend on fishing in Guanabara Bay, for those who are not stranded in the waters of Guaíba, it is very convenient to talk about the "new normal" and "resilience".

These are expressions destined to integrate the vocabulary of 95% of the planet's population that does not have a helicopter to rescue them and take them to the countryside or to Palma de Mallorca. Only when bankers are forced to accept that the "new normal" is the drastic reduction of bank interest rates and that it is necessary to pay taxes on large fortunes, in which buildings with garages for five cars per apartment (plus five for visitors) are seen as pre-apocalyptic aberrations, in which environmental ministers close the gate to prevent the escape of the herd, and in which those who allowed it in the past are punished civilly, politically, and criminally, will we be able to begin the process of facing climate change and, more than that, return to dealing with the now-forgotten Biodiversity Convention - so that Environmental Law becomes more than just a specialty of business advocacy.

In other words, if we want to think about intergenerational equity and sustainability, we will need to promote an ethical, economic, and political environmental revolution. In the current scenario of individualism, immediacy, entrepreneurship, and dismantling of public policies, this goal seems unattainable. And so, the discourse of the "new normal" - get used to it - also ends up becoming normalized. After all, as the cynical representatives of capital would say, in the long run we will all be dead.


Guilherme José Purvin de Figueiredo is a professor of Environmental Law. He holds a PhD and Master's degree in Law from the University of São Paulo Law School and a Bachelor's degree in English Language and Literature from the University of São Paulo's Faculty of Philosophy, Languages, and Literature. He is the author of several works on Environmental Law, including "Curso de Direito Ambiental (Environmental Law Course) (6th edition), "A Propriedade no Direito Ambiental" (Property in Environmental Law) (4th edition), and "Direito Ambiental e a Saúde dos Trabalhadores" (Environmental Law and Workers' Health) (2nd edition). He is a retired State Prosecutor of São Paulo and a writer. He is the international coordinator of IBAP and a member of the advisory board of the Association of Environmental Law Professors of Brazil (APRODAB), having been its founding member and first president.

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