Final Asbestos Showdown in Brasilia?
On October 31, 2012, Brazil's Supreme Court will be the setting for what could well turn out to be the swansong of the asbestos industry. At stake is the future of an industrial sector that accounts for 15% of the world's annual output of asbestos; also at stake, are the lives of millions of Brazilian citizens as well as those of individuals in countries to which Brazilian asbestos is exported.
Opposing cases brought by those supporting the continued use of asbestos and those in favour of banning it have found their way onto the Supreme Court docket because the arguments made by the litigants are based on constitutional law. The good guys say that the Brazilian Constitution acknowledges a citizen's right to life, health and the dignity of labor; how then, they ask, can a federal law which permits the use of a known carcinogen be constitutional? The bad guys argue that as laws pertaining to trade and interstate commerce reside within the federal purview, São Paulo State's law banning asbestos is unconstitutional as it countermands Brazil's controlled use policy, which underwrites the commercial exploitation and use of chrysotile asbestos.
This is not the first time the Supreme Court has been an asbestos battlefield. In 2001 and 2003, the Court ruled against state laws banning asbestos. On June 4, 2008, however, a majority court verdict (7:3) upheld São Paulo Law no. 12,684 of 2007 on the grounds that state laws can supersede weaker federal laws in order to protect human life.1
The case brought against Brazil's controlled use law was mounted by both National Associations of Labor Prosecutors and Labor Judges. The case against the São Paulo ban was brought by the Industrial Workers National Confederation (CNTI), an industry-backed body which purports to represent asbestos workers, and the Brazilian Chrysotile Institute, an asbestos trade association. High-profile hearings on August 24 and 31, 20122 provided a wealth of evidence to inform the Court's decision-making process. On October 31, the two cases will be heard by the current ten Supreme Court Justices. Should the verdict uphold the São Paulo ban it will also, by implication, validate bans in Rio de Janeiro, Rio Grande do Sul, Pernambuco and Mato Grosso, expedite the passage of ban bills in the States of Mato Grosso do Sul, Espírito Santo and Pará and encourage remaining states to take similar action.
Labor Inspector Fernanda Giannasi will be on-hand in Brasilia to watch the proceedings unfold. For someone who has led the national campaign to ban asbestos in Brazil for almost thirty years, this is a time of great anticipation and great nervousness. When asked to predict the likely outcome she said: I am putting my faith in the wisdom and integrity of our Supreme Court, the most respected institution in Brazil. I am also praying a lot.
October 30, 2012
1 Castleman B, Kazan-Allen L. History in the Making. June 25, 2008.