PL 3729 OF 2004 AND THE DESTRUCTION OF ENVIRONMENTAL LICENSING IN BRAZIL

Under the influence of business lobbies, the House of Representatives approved yesterday, 12, the basic text of the bill that radically changes the rules of environmental licensing in Brazil, ending the compulsory licensing for various types of enterprises, which increases the risk of tragedies with great social and environmental impact. After voting on the project highlights, which happens today, the bill now goes to vote in the Senate.

Business lobbies in the House of Representatives want to pass a bill that radically changes the rules of environmental licensing in Brazil, ending the licensing requirement for various types of enterprises, which increases the risk of tragedies with a major social and environmental impact


Bento Rodrigues district in Mariana (MG), December 2015. Photo: Lucas Bois

Environmental licensing and environmental impact assessment are among the main instruments foreseen by the 1988 Constitution to guarantee to all the right to a balanced environment, “a common good of the people and essential to a healthy quality of life”, she also imposes “the public power and the collective the duty to defend it and preserve it for present and future generations”.

The Bill 3729 of 2004, which has as its object the creation of a General Law for Environmental Licensing in Brazil, since its first writing, does not bring elements necessary to solve the problems alleged in its justification.   On the contrary, it brings great setbacks for the protection of the environment and the guarantee of rights of the populations affected by environmental degradation.

For a long time, business sectors, including large builders, large agri-ranchers, banks, represented by FEBRABAN, CNI, CNA, among other large capital groups, with the support of international organizations such as the World Bank, and its spokesmen in the federal legislature, have been alleging false problems in the environmental licensing process. From this, they have pointed out false solutions and place IBAMA and the Public Prosecutor as the villains of licensing, hindering the so-called “progress”.

The reality is that hardly an environmental license is denied by the licensing agency, especially when it comes to large infrastructure projects. There is no lack of speed in the issuance of licenses, on the contrary, most of the efforts of the licensing authorities focus on this act. There is an enormous difficulty in following up the projects being carried out and in meeting the social and environmental conditions.

After the establishment of the Complementary Law 140 of 2011 that reconciles the actions of the different agencies of SISNAMA in environmental licensing, most cases of “delay” and judicialization focus on situations of non-compliance with constraints, It is necessary to intervene to prevent the violation of human rights, and for failures in the project, or the elaboration of inadequate studies.

To face the real problems of licensing in Brazil, a policy of institutional strengthening of the licensing bodies is necessary, both structurally and in guaranteeing its technical independence, which is the permanent target of political interventions to secure economic interests.

It is also necessary to deepen the social participation process, in all planning stages, and to expand the application of Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (ESA), rather than defer disastrous projects and try to remedy the disasters with conditions that end up unattended, as occurs in Porto Velho and Altamira, after the construction of Jirau, Santo Antônio, and Belo Monte.

The bill that was approved in the House (by 300 to 122 votes) disregards the various alerts of scientific entities and organized civil society, presenting a range of “gaps” that facilitate the licensing of projects with the potential to cause major social and environmental impacts and reduce the protection and recognition of affected populations.

Among the main problems we highlight:

  • The conceptual confusion of the affected area and the study area, seeking to restrict the analysis and recognition to the area necessary for the installation of the project, or only to the impacts considered “direct”.
  • The untying between environmental licensing and Strategic Environmental Assessment (ESA), without the necessary incorporation of environmental risk analysis, as well as the disregard of Ecological Economic Zoning (EEZ).
  • The decompression between environmental licensing and the granting of the right to use water resources and between licensing and land use certification.
  • Despite bringing new modalities of public consultation, it does not deepen social participation, which must be guaranteed in all phases of the planning and licensing of enterprises. It does not bring new elements aimed at promoting the quality of environmental information, necessary to ensure effective social participation, such as training, access to the computer network, transportation, disclosure plan, among others.
  • The project brings several forecasts of licensing waiver of activities with the potential to cause degradation, among which are different modalities of agricultural activities and the improper transformation of the Rural Environmental Registry (CAR) into environmental license. It also exempts military undertakings; “of a size considered insignificant”; power distribution up to the voltage level of 69 kV; water treatment and sewage treatment systems and plants, in the latter case it is not required to grant the right to use water resources for the release of the treated effluent; services and works aimed at the maintenance and improvement of the infrastructure in pre-existing facilities or bands of domain and servitude, including maintenance dredging; among others.
  • The easing of linear enterprises, authorized to operate soon after construction, suppressing the operating license phase. “Linearity” does not mean that the enterprise is not considered complex and does not imply serious socio-environmental impacts. In the list of linear enterprises are highways, railways, mineroducts, pipelines, pipelines, among others.
  • The restriction of impact studies only to the demarcated indigenous territories and the quilombola territories, disregarding the enormous debt of society with these peoples and the inertia of the public power in recognizing their rights and territories. They still take into account only the so-called “direct” impacts.
  • The restriction of the scope of studies to arbitrary distance parameters without technical basis.
  • Restricts the assessment of impacts about historical, artistic, cultural, and natural heritage only to the area of direct influence and presupposes a perfect knowledge of the territory, disregarding that only a small amount of this patrimony was registered by the government in the country.
  • It restricts the recognition of conservation units and their buffer zone only to those affected by the area necessary for the implementation of the enterprise. This endangers the natural heritage and the rights of traditional populations living in sustainable use units.
  • All the restrictions already listed diminish the possibility of acting of the intervening bodies.
  • The weakening of environmental licensing with new licensing modalities. The License for Membership and Commitment (LAC) creates a true process of self-licensing, capable of inducing the proliferation of new disasters, such as those occurring in the Doce River and the Paraopeba Valley.  It should be noted that the project provides for the licensing of services and works directed to the expansion of capacity and paving in pre-existing facilities or domain and servitude bands through the LAC. On the other hand, the Corrective Operation License has the power to encourage irregularities, enabling enterprises to be initiated in contravention of the legislation and then seek regularization.
  • The automatic renewal of an operating license constitutes true permission for the breach of conditions by the entrepreneur and the release of the licensing authority to perform the supervision and monitoring of the conditions.
  • Lack of guidelines and parameters for the drawing up of lists of types of activities exempted from licensing or with authorization for relaxation by federal entities, which can lead to an economic race through the institution of more permissive legislation aiming at the installation of new ventures.
  • It limits the recognition of the impacts generated by the enterprise to the establishment of causal nexus, confronting the theory of integral risk, established by the doctrine and jurisprudence, and with the National Policy of the Environment.
  • The ban on entrepreneurs implementing constraints whose actions can be assimilated to public services is a real aberration to environmental law. In environmental law, the environment covers both the so-called “natural environment” (as forests) and the “artificial environment” (as cities) (FIORILLO, 2011, p. 74, 75). The current legislation considers the socioeconomic environment as part of the environment, as well as the social and economic impacts, following section I, of article 6 of CONAMA resolution nº 1, 1986. In this sense, the objective of social conditions is not to replace the actions of public power, but to deal with adverse impacts on society, which include the worsening of pre-existing social problems.
  • Reduces the accountability of the funding agents of licensed ventures, rather than seeking to induce regularity before environmental legislation, addressing unduly matters that should be dealt with in different legislation.
  •   It does not recognize the limits of the actions of the licensing authorities and the intervening       agencies, imposing even greater difficulty in the actions of these agents, without foreseeing measures of institutional strengthening.

In summary, the project is omitted about what should be advanced and attacks what can be considered an obstacle and increase the costs of the projects in the vision of entrepreneurs. The approval of PL 3729 as presented will involve the dismantling of environmental licensing in Brazil, will allow the deepening of the serious human rights violations that occur systematically in the implementation of major infrastructure works, will make even more forceful the violent process of deterritorialization of the people of the forest, fields, and waters, but will also deeply affect the lives of all who live in the cities, due to the great increase of the environmental degradation that will be provided.

The PL 3729 threatens forests, the Amazon, climate balance, rivers, peoples, life in all its forms and needs to be prevented in any way by Brazilians who want to live in a more just and sovereign country.

*João Marcos Rodrigues Dutra is a member of the National Coordination of MAB in the state of Rondônia and a lawyer of the Collective of Human Rights.

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