by Lesley K. McAllister. Stanford, CA: Stanford University Press, 2008. 288pp. Cloth $55.00. ISBN: 9780804758239.Reviewed by Diana Kapiszewski, Department of Political Science, University of California, Irvine. Email: dianakap [at] uci.edu.
pp.110-116
Over the last two decades, political science analyses of comparative public law have focused on judges and judicial politics (e.g., Widner 2001; Ginsburg 2003; Hirschl 2004; Lasser 2004; Helmke 2005; and Moustafa 2007) and more recently, on justiciable social and economic rights (e.g., Gargarella, Domingo, and Roux 2006; Brinks and Gauri 2008) and public interest litigation (e.g., Sathe 2002; Mate 2009; Trubeck and Cummings 2009). English-language studies of comparative public law have paid comparatively little attention to other elements of the infrastructure of justice, although important exceptions exist, including studies of the police (Ungar 2002; Brinks 2007), prosecutors (Alberti 1996; Guarnieri 2008), judicial councils (Hammergren 2002), lawyers (Pérez-Perdomo 2007), and actors included in the broader “legal complex” (Halliday, Karpik, and Feeley 2008).
Further, few book-length studies of comparative public law address the Brazilian justice system at all (Kapiszewski 2007; Taylor 2008; Ingram 2009, notwithstanding). This is surprising, given Brazil’s increasing importance on the regional and world stage, the fact that its courts are some of the most professional and powerful in Latin America, and the existence of an innovative and important fourth branch of government (operating at both the federal and state levels): the Ministério Público or “procuracy,” staffed by prosecutors tasked with – and increasingly involved in – defending “diffuse and collective interests” (broader societal well-being) (p.4).
Lesley McAllister’s incisive and well-organized study of public prosecutors’ involvement in environmental protection in Brazil, published as part of Stanford University Press’ law series, is thus a welcome addition to the comparative public law literature and to Brazilian literature on the procuracy (e.g., Sadek 1997; Kerche 1999; Arantes 2002). As Brazil’s Amazonian rainforest is a focal point for the public policy challenge of balancing conservation, human rights, and broader public interests, McAllister’s study is also extremely timely, and represents a significant contribution to the literature on the politics of environmental regulation and regulatory enforcement (e.g., Vogel 1986; Hochstetler 2002; Espach 2009). With a J.D. from Stanford and a Ph.D. from Berkeley’s Energy and Resources Group, McAllister is the ideal scholar to write this book, as the breadth of her knowledge and the passion underlying the analysis attest.
The study is based on fieldwork involving an impressive array of data-collection techniques: McAllister engaged in participant observation through internships in state procuracies [*111] and environmental agencies, conducted more than 100 semi-structured interviews, and gathered a range of documents and information from archives. Two Brazilian states are used throughout the book as counterpoints for evaluating the efficacy of environmental law enforcement: São Paulo in the more-developed Southeast, and Pará in the underdeveloped Northeast. Indeed, McAllister’s use of sub-national comparison distinguishes her work from other books that examine public law dynamics in Latin America (Chávez 2004 and Ingram 2009 represent important exceptions).
McAllister begins by observing that, while Brazil has some of the most “rigorous and complete” environmental laws in the world (p.4), including a constitution enshrining the right to a healthy environment, its environmental regulatory agencies have failed to enforce those laws. State and federal prosecutors have sought to counteract this shortcoming by engaging in “prosecutorial enforcement” of environmental law (a more legalistic approach than the “administrative enforcement” carried out by agencies), thereby contributing to the development of a “robust, effective environmental regulatory system” (p.10). The keys to the procuracy’s success in insinuating itself into the defense of environmental concerns (and other public interests) were its political skill in portraying itself as an institution positioned to defend key democratic rights, and political leaders’ receptivity to those arguments (pp.57, 66). Yet McAllister’s analysis reveals that Brazil is not homogeneous with respect to these dynamics: environmental agencies demonstrated greater institutional capacity and a stronger enforcement record in São Paulo than they did in Pará; likewise, institution-building and specialization within the procuracy occurred more quickly and more extensively in the former.
Three central empirical chapters (Chapters 4 through 6) describe the mechanisms by which Brazilian prosecutors have attempted to make environmental law matter. The experiences of São Paulo and Pará are considered within each chapter (rather than having chapters dedicated to each state), facilitating comparison and the drawing of inferences. Chapter 4 examines how prosecutors have sought to combat impunity via prosecutorial enforcement of environmental law. McAllister identifies and examines three types of significant state-level variation in prosecution. First, she analyzes the difference in the level of activity by prosecutors in São Paulo (high for both federal and state prosecutors) and by their peers in Pará (high for federal but low for state prosecutors). Second, she explores the range of environmental problems addressed by prosecutors (a proxy for the types of powerful political and economic actors they confront), which is far broader in São Paulo than in Pará (at least at the state level – federal prosecutors in Pará cast a wider net). Finally, she examines prosecutorial strategies, finding that in São Paulo civil prosecution is used far more than criminal prosecution at both the state and federal levels, while in Pará federal prosecutors employed both criminal and civil enforcement (state prosecutors’ priorities are less clear).
In explaining cross-state differences in levels of prosecutorial activity and the [*112] range of environmental problems prosecutors addressed, McAllister discusses the role played by state environmental agencies’ institutional capacity (which can be a key resource for prosecutors), but assigns more causal weight to prosecutors’ independence from the executive branch (political independence) and lower-level prosecutors’ independence from their bosses (functional independence) (pp.86-87; 108-120). In order to evaluate each procuracy’s political independence, she examined governors’ public quotes regarding the procuracy and its work, financial and other resources governors granted to the procuracy, and governors’ attorney general picks – and also spoke with prosecutors (e.g., pp.110-11). Her analysis thus avoids two pitfalls in the literature on judicial independence: measuring political independence by assessing how often an institution challenges political leaders, or by evaluating how much independence the rules “on the books” seem to afford prosecutors (when the reality of independence on the ground is often quite different, p.109). McAllister’s acknowledgement that prosecutorial independence is not an absolute good is also refreshing: the procuracy’s lack of accountability has sometimes led to prosecutorial inconsistency (p.115), and its lack of cooperation with other actors charged with enforcement has compromised its work (p.179).
Chapter 5 examines the procuracy’s oversight of and assistance to environmental agencies, explaining that, while the state procuracy developed oversight of the state environmental agency in São Paulo, the state agency remained relatively unaccountable to the state procuracy in Pará, in large part because of the procuracy’s lack of political independence (p.136). Yet along with describing how the work of procuracies can increase the accountability of environmental agencies (helping to build a “culture of lawfulness” within those agencies, p.122) and how its backing can provide agencies with leverage that improves compliance (pp.122, 142, 146-149), McAllister also highlights the tensions that can arise between prosecutors and regulators, and observes that prosecutors’ influential role can result in a counterproductive degree of legalism.
Chapter 6 overviews Brazilian prosecutors’ assumption of the role of “lawyer for society” (p.157) since democratization, explaining how environmental groups increasingly turn to the procuracy to help them resolve disputes – either in the courts, or extra-judicially. Again, McAllister’s analysis is impressively balanced. The procuracy has provided a new forum for resolving public-interest conflicts, augmented access to justice for environmental interests, and likely helped to secure environmental rights included in the 1988 Constitution. But with its increasing involvement came a “prioritization problem:” squeaky wheels and insignificant issues often received attention while more important environmental problems were not addressed (p.162). At a systemic level, the fact that the procuracy and the courts are increasingly acting as a “substitute” for elected institutions raises the specter of the “counter-majoritarian difficulty” (Bickel 1986) and facilitates the judicialization of environmental politics, the downsides of which McAllister addresses adeptly (pp.174-175). [*113]
McAllister is less successful at convincing the reader that law has indeed “begun to matter” more in Brazil – an admittedly difficult phenomenon to measure. The book does contain some evidence that prosecutorial enforcement of environmental law communicates a sense that impunity is waning (p.86) and heightens some actors’ awareness of the risks associated with illegality. For instance, McAllister provides interview data showing that polluters fear actions brought by prosecutors (pp.88, 147) and prefer to avoid the bad press generated by the filing of a criminal case against them (p.149). Yet additional evidence that Brazilians have changed the way they think about law and the legality of their actions – that law has actually come to be “taken more seriously” by certain actors (p.181) – might have been provided. Alternatively, McAllister might have offered behavioral evidence that such ideational change has occurred (keeping in mind that behavior maps imperfectly to preferences). For instance, she might have provided data demonstrating a decline in illegal environmental activity over time (although continued deforestation in the Amazon would suggest this phenomenon may be regional); showing (all else equal) a decrease in extra-judicial conflict resolution or court cases regarding environmental disputes and/or the emergence of less-serious cases over time; or indicating that those implicated in extra-judicial conflict resolution or found guilty in court cases regarding environmental conflicts increasingly adjusted their conduct or complied with such rulings. If McAllister had better substantiated her claim that a robust relationship exists between prosecutorial enforcement and a stronger culture of “law abidingness,” her study would have had significant theoretical and policy implications for debates regarding how actors’ preferences and values can change over time, and what role external constraints might play in that process.
The final chapter considers whether prosecutorial enforcement could “diffuse” to (and be successful in) other developing countries. McAllister appears optimistic that diffusion to other Latin American countries of the “Brazilian model” could bring rule of law benefits. Yet many Latin American countries differ from Brazil in ways that her analysis suggests are fundamental for this more legalistic enforcement strategy to be effective. It is certainly true that most Latin American countries have weak environmental agencies, and that governmental accountability remains a major concern in much of the region (as McAllister notes, p.195). However, most countries lack Brazil’s rigorous and complete environmental laws, its legal culture characterized by a “palpable sense of the importance of laws and legality” (Roett quoted in Rosenn 1990: 774), and its legal community’s reverence for the constitution. Considering the procuracy to be a fourth branch of government is relatively unique in itself; moreover, prosecutors are not chosen via competitive exams in most other Latin American countries, and as a result, few prosecutors are as independent and professional as Brazil’s, and few would likely be as adept at creating this new role. In short, Brazil represents a “most-likely case” for prosecutorial influence, and it is unclear that prosecutors could hold as much sway elsewhere.
These critiques aside, McAllister’s analysis offers a strong foundation on [*114] which to build future research about the emergence of prosecutorial enforcement in Latin America and to develop theory regarding the conditions under which a procuracy may contribute to rule-of-law entrenchment. The book represents an important effort to understand the evolution and role of a crucial (and under-studied) Brazilian legal actor in a particularly critical area of law. McAllister’s writing is clear and accessible, and the study contains fascinating accounts of environmental cases brought to life by McAllister’s skilled deployment of interview data. Moreover, McAllister examines and portrays the dynamics she studies from various angles, producing an unusually evenhanded analysis that gracefully blends insights on rights enforcement, institutional evolution and inter-institutional relationships, and the development of the rule of law. The book is one from which most readers will learn a great deal, and scholars of comparative public law, comparative constitutional law, comparative legal institutions, and Brazilian law and politics in particular will profit from critically engaging this fine volume.
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© Copyright 2009 by the author, Diana Kapiszewski.
