Public Interests and Private Land: The Ecological Function of Property in Brazil

Abstract

Property law governs human interactions with land and resources as they exist within local and global landscapes. Major environmental concerns, such as climate change and wide-scale biodiversity loss, present challenges for reconciling liberal traditions of private property with public interests in the enjoyment of environmental goods, services, and resources. This article analyzes how constitutional environmental principles can shift the property law paradigm by rebalancing individual and societal interests. Brazilian law and judicial decisions will serve as examples of this policy change. One of Brazil’s highest courts, the Superior Tribunal de Justiça (“S.T.J.”), has applied an “ecological function of property” in its jurisprudence, based on provisions in Brazil’s Constitution. This principle articulates responsibilities of private parties, inherent in title to property, to maintain the public’s ability to enjoy a right to an ecologically balanced environment. Several of the S.T.J.’s opinions employing the ecological function of property will be examined, including a discussion of how this function of property affects regulatory takings law and application of Brazil’s Forest Code. The article also compares this line of reasoning to the Public Trust Doctrine in the United States, which describes the right of the general public to essential natural resources that are held in trust by the government. Ultimately, the Brazilian experience demonstrates how “constitutionalizing” environmental principles can reshape property law and strike an appropriate balance between private and public interests.

Keywords: Environmental Law, Brazil, Brazilian Law, Property, Social Function of Property, Ecological Function of Property, Public Trust Doctrine