• Alexandre Amaral Filho

Abestos is back to the daily agenda: what says the STF on the issue (and how).

The ban on asbestos in Brazil is back on the agenda. On May 05,2019 Rede Globo showed the visit of senators to the Minaçu-GO asbestos mine and the economic impacts that the total prohibition of the exploitation and use of the ore caused to the city. Considered to be the largest asbestos mine in Latin America, the mine is exploited by SEMA, which has a "de facto" monopoly in the country.

Even in its "less harmful" variety (chrysotile asbestos), asbestos is considered by the WHO to be one of the most carcinogenic agents in the workplace and is responsible for diseases such as asbestosis and mesothelioma. Law 9.055/98 established the general ban on asbestos in Brazil, except for the use of chrysotile - that is, it determined "controlled use".

The federal law was considered unconstitutional by the STF and the exploration and use of the mineral were banned in the country since November 2017. The effects of the ban were contained by an injunction in ADI 3470 that in practice allowed the exploitation of asbestos until February of this year

According to the sen. Vanderlan Cardoso (Rapporteur of the commission investigating the effects of the ban on the city's economy and EMS officials), the Senate will require to reopen the mine, which has been closed since February: "The employees are apprehensive, the whole city's population is apprehensive; so we have to reopen urgently [...] ". The senator says the STF's decision was misleading and taken without a scientific basis, so they will ask the court to "only export asbestos" and "a 10-year transition period." As stated by the mayor of Minaçu, Zilmar Duarte, asbestos represents more than 30% of the revenue of the municipality.

These facts justify revisiting, albeit briefly, the central arguments and basis of the decision of our supreme court.

The judicial controversy began in the mid-2000s when prohibitive state laws ran counter to "controlled use" allowed by federal law; together with ADI 4066 (which questioned the law 9,055 / 98), the state ADIs judgments against prohibitive laws (thus favorable to the exploration and use of asbestos) predominated to consolidate the current position of the STF.

At first, the STF was concerned with the legislative competence of states to counteract federal law (formal constitutionality). The court failed to rule on the duty to provide protection of the ecologically balanced environment (material constitutionality) because it understood that it should not go into "technical-scientific" issues. In the meantime, in 2017, in view of the advancement of research and the manifestation of specialists through amicus curiae and public hearings, STF's judges reviewed the position of the Court and addressed (a) the protection of a balanced environment, (b) principles of precaution and prevention and (c) normativity of international environmental treaties.

The preponderant basis for demarcating the issue was the precautionary principle. According to Min Celso de Mello, environmental protection must take into account "(a) the precaution and scientific uncertainties, (b) the exploration of alternatives to potentially harmful actions, including non-action, (iii) the transfer of the burden of proof to its proponents, and not to the victims or possible victims ".

Therefore, the precautionary principle promotes the premise that "scientific doubt militates in favor of the environment". In this sense, the judge concluded:

"In fact, even if scientific certainty were not enough about the harmfulness of the controlled use of chrysotile asbestos, it is still important to insist - the precautionary principle, which is supported by our internal order (CF, art. And international declarations (such as Agenda 21, Principle 15, which resulted from the Rio / 92 Conference), will focus, as they warn doctrine and jurisprudence, whenever there is a probability of realization of damage as a consequence of an activity identified by its harmful potentiality. Should this occur, then, the Public Power, with support in said postulate, will be required to adopt measures of a precautionary nature designed to preserve the environmental safety and protect, in this way, the integrity of life and human health."

"From the perspective of this extremely important improvement, I understand that issues involving and compromising the environment and public health cannot be subordinated to corporate or economic interests, since, according to the precautionary principle," people and their environment should have in their favor the benefit of the doubt, when there is uncertainty about whether a given action will harm them", that is to say, if there is doubt about the harmfulness or dangerousnes

s of a given element or a certain activity, there will be no other solution but to decide favorably to the preservation of the environment ('in dubio pro securitate'). [...] For me, it is well for me, that the postulate of precaution acts, in the context under consideration here, as a clear factor of delegitimization of the legislative instrument in question, which, in a way incompatible with the Constitution, disregarded the real harmfulness the use, even controlled, of chrysotile asbestos."

Recalling the contributions in a public hearing, Min. Rosa Weber said:

"Dr. René Mendes, a professor, and specialist in public health and occupational medicine who spoke on behalf of the National Association of Occupational Medicine and the Brazilian Association of Exposed Asbestos said that he could not talk about safe use or controlled use of asbestos, since 'there are no tolerance limits'. "

The principle of in dubio pro natura (arising from the precautionary principle) has also been widely used in Superior Court judgments in the resolution of conflicts and interpretation of environmental laws - protecting the most vulnerable part of the probative distribution dynamics, including promoting the reversal of the burden of proof.

Therefore, it is noteworthy that the STF decision, rather than simply repeating the scientific consensus, considered that, based on the precautionary principle, there is a need for the entrepreneur (in this case, those in favor of unconstitutionality of state laws and in favor of the constitutionality of controlled use of chrysotile asbestos) to prove that there is effectively no risk to human health from the exploitation of the material with controlled use.

With the end of the effects of the injunction granted for the exploitation of the ore, it is certain that the senators will request from the STF a new deadline for compliance with the prohibition - probably a period of ten years, restricted for the export of the material to countries where allows use (such as China, Russia, and the United States.).

However, in spite of all the economic constraints that naturally influence the debates on sustainable development (that is, on the economic importance of the exploitation of asbestos to the city of Minaçu), it must be concluded that, at least if one considers the rule of environmental protection, it will be exclusively incumbent upon the senators to prove that the export and the 10-year transitional period will not expose workers to the relevant risk of contamination by the ore (including all workers involved in the chain of asbestos: from SEMA employees in Minaçu to cargo transporters and port workers).

Alexandre Amaral Filho is a lawyer, specialist in Constitutional Law at ABDConst - PR and in Customs Law and Foreign Trade at Univali - SC.

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