Brazil: Superior Court of Justice establishes binding precedent on the crime of pollution
In brief
On 8 October 2025, the Third Section of the Brazilian Superior Court of Justice (STJ) unanimously ruled on an appeal under the system of repetitive appeals, establishing that the criminal offense of pollution, when it results or may result in harm to human health, has a formal nature, and an expert evidence is not required to prove the crime.
The binding thesis established by the STJ was consolidated in the judgment of Special Appeal No. 2.205.709/MG, processed under the system of repetitive special appeals. On that occasion, the court established the following thesis in Repetitive Theme No. 1377:
“The type provided for in the first part of the caput of Article 54 of Law No. 9,605/1998 has a formal nature, and the potential for harm to human health is sufficient to configure the criminal conduct, with no requirement for actual harm or technical expertise, and proof may be provided by any suitable means of evidence.”
In practice, although the decision has not yet been published, the discussion revolved around the nature of the criminal offense — whether it would be an abstract danger type (formal) or a concrete danger type (material). Thus, the new thesis consolidates that: (i) the first part of the criminal offense has a formal nature, dispensing proof of actual harm to human health; (ii) the potential risk to human health is sufficient to configure the criminal offense; and (iii) technical expertise is not required, and proof of the crime may be provided by other suitable means of evidence.
In practice, the decision, issued as a binding precedent, should guide the understanding of other bodies of the Judiciary, except for the Brazilian Supreme Court (STF).
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Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.
In the environmental area, Alexandre has a wide breadth of experience in cases involving contamination, environmental and urbanistic licensing procedures, environmental liability, management of solid wastes and take-back requirements, effluents, electromagnet pollution, air emissions, forestry matters, protected areas and minorities, biodiversity, controlled chemicals products, socio and environmental liability of financial institutions, climate change, carbon markets and urbanistic regularization.
In the consumer area, Alexandre has experience with consultations, administrative and judicial procedures related to Consumer Law issues with federal, state and municipal agencies, such as DPDC, PROCONs, Public Prosecutors and Municipalities involving recall, offers, data protection, misleading and abusive advertising, privacy, e-commerce, abusive clauses, commercial practices, terms and conditions and violations to the Brazilian Consumer Defense Code.
Alexandre represents several clients in the oil&gas, automotive, chemicals, technology, food, communications, mining, finance and services sectors.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.
