Prerogatives and Qualifications to Ensure Compliance With the Principle of Legality in Environmental Decision Making

Abstract

This paper is based on two premises: 1. Administrative implementation in environmental matters guided by the overarching principle of legality (understood in the sense of supremacy of fundamental rights) is essential to the credibility of administrative authorities in the public eye, which, in turn, is needed in order to gradually reduce the number of environmental disputes and increase the willingness to resolve any remaining disputes through consensual processes such as mediation and arbitration instead of adjudication by courts and tribunals; 2. However, such administrative implementation of environmental law would require providing the public administrative authorities with a quasi-independent structural basis, especially by ensuring that the officials with “front-line” decision-making duties have proper technical and legal qualifications. In this context, the author analyzes which prerogatives and qualifications would ensure the quasi-independent nature of administrative implementation of environmental law and how such prerogatives and qualifications could become a reality in Brazilian administrative justice, whose roots in Continental European administrative law were unsettled by importing US legal concepts without the necessary process of adaptation. The analysis therefore covers the institutional guarantees that can minimize the risk of governmental and political capture of the administrative authorities and any other form of dependence on private economic interests. Similarly, the analysis includes the guarantees that should be given to civil servants (with “front-line” decision-making duties), such as fair compensation, life tenure and freedom of decision within a predetermined range of action. Finally, in light of the highly technical nature of environmental issues, the author examines the possibility of establishing a multidisciplinary “front-line” decision-making panel composed of civil servants specializing in the relevant fields of expertise.

Keywords: administrative justice, front-line decision, environmental adjudication