Property Rights and the Environment: The Ecological Function of Property in Brazil

Article 225 of Brazil\u27s Constitution guarantees to all the right to an ecologically balanced environment and imposes a duty on both the government and society to defend and preserve [the environment] for present and future generations. This constitutionalization of environmental rights and duties has an important impact on property law inasmuch is it affects the relationship between private and public interests in the use of land and other natural resources. The right to private property is explicitly guaranteed in Brazil. However, this right is not absolute; under the Constitution, real property must fulfill its social function. Among other requirements listed for property\u27s social function is the appropriate use of available natural resources and preservation of the environment. Recent jurisprudence of the High Court of Brazil (Superior Tribunal de Justiça), Brazil\u27s highest court for interpretation of infra-constitutional federal law, applies these principles as an ecological function of property that imposes limits on private property rights. This Article analyzes several of the Court\u27s opinions that employ this line of reasoning, including a discussion of how the ecological function of property affects regulatory takings law and application of the country\u27s Forest Code. Ultimately, the Court\u27s opinions support the idea that in order to foster sustainable development, public and collective interests in natural resource use must be held above limited, private interests -- a hierarchy that has not existed historically, but that the Court now seeks to enforce