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The environmental licensing rules in Brazil

Established in 1981 by the National Environmental Policy (Federal Law No. 6938), the environmental licensing is an instrument implemented by it that has always had great importance in the development of our country.

That is because the environmental licensing allows developers to preventively identify the environmental effects of their potential developments and how these effects can be managed at all stages of implementation.

In 1986, the National Environmental Council (Normative Council) – CONAMA enacted Resolution No. 01, which listed the types of activities and developments classified as having "significant environmental impact", which must be licensed by environmental agencies through the analysis of a more elaborate and complex environmental study, known as the Environmental Impact Assessment (EIA) and respective report, called Environmental Impact Report (RIMA). CONAMA Resolution mentioned above specified a list of developments and activities to illustrate which developments should be classified as having greater impact.

The following decade, CONAMA, once again, in the absence of a specific law, enacted CONAMA Resolution No. 237/1997, to regulate environmental licensing, bring some definitions and determine the division of powers between the entities.

Thus, for many years, environmental licensing has been in effect across the country, at the three government levels, with the aforementioned CONAMA Resolutions as the main legal basis.

In December 2011, the Federal Supplementary Law No. 140 was enacted, which, in compliance with the Constitution of 1988, defined the allocation of powers of the federal, state and municipal governments in relation to environmental licensing.

Despite the modernity of our environmental law at the time it was enacted, the environmental licensing rules in Brazil are currently deemed superficial and with an extremely legalistic view. As a result, from the legal standpoint, environmental licensing has always generated a lot of controversy and discussion in our country.

The normative content fails to reflect the need for an environmental licensing regulation in practice. This is because the discussion on the whole legal-environmental issue depends on a broader view which considers that the issue is predominantly technical.

Also, it should be noted that any environmental issue brings an ideological passionate environment that makes the whole discussion of the process more subjective and sensitive. This, in addition to the lack of knowledge in relation to the technical issues involved, leads to the disordered accumulation of existing legal disputes.

A good example of conflict generated by the lack of knowledge is the fact that the conventional environmental licensing consists of three phases, phase one consists of the Preliminary License, followed by the Installation License and finally the Operating License.

For the issuance of the Preliminary License, the developers' intention must be analyzed in terms of location and concept of their developments. That is, the environmental agency evaluates, through the technical documents submitted to it, the type of development and where it will be implemented, as well as the general impacts of this first assessment. It is certainly the most complex license and therefore the most time consuming, because based on said license the developer has the "acceptance" by the environmental agency documented with the generic intention of its development or activity.

After the Preliminary License, and the official acceptance there of by the environmental agency it represents, the developer is able to enter into the relevant contracts to start the necessary details for the next phases, installation and operating phases, including financial expenditures with greater legal certainty.

That is, without the Preliminary License, it makes no sense for the developer to detail the plans and projects to give continuity to the works relating to the environmental licensing sequence, especially the procurement for the preparation of the Environmental Control Plan (Environmental Based Plan) for the implementation of the project.

However, also in the decision-making environment of the preliminary license, prior to its issuance by the environmental agency, a public hearing takes place, which consists of a meeting with the participation of stakeholders in the community. At this meeting, questions about the project are made and the environmental studies are submitted. Usually, due to the lack of knowledge of the licensing rules, there is a deep examination of the project details such as the exact number of jobs created, the construction material used, the exact volume of air emissions, etc., and the developer, obviously, is left with no answers because, as already stated, there are no sufficient details required for that end.

This is a common example of the beginning of conflicts in environmental licensing, since the authorities, pressured by the community, will require the developers to provide information prior to the due course and the developers lack either them or provide them in a simplified and/or hypothetical manner, leading to an unreliable environment and conflict between the parties.

Therefore, if the law was more objective, with precise rules of what should be done, submitted and expected at each stage, the parties involved would feel more secure, technicians and authorities would be less pressured and conflicts would certainly reduce.

To avoid situations like this and many others similar to that one, the amendment of the legal framework has been discussed for years, with solutions to the existing omissions, seeking the legal certainty that is so important to the procedure.

It is worth highlighting some points that evidence the improvement of the procedure in the aforementioned bill under discussion: (i) identification of the bodies that can render an opinion on the content of the licensing procedure, that is, the one that exclusively deals with indigenous affairs, quilombolas and even the authorities responsible for historical and cultural heritage; (ii) the introduction of new and different types of environmental license, according to the practical reality, namely, the Environmental License for Compliance and Commitment (LAC) for developments that will be installed in areas where the impacts are exactly known in advance, and the Corrective Operating License (LOC), which will form the basis for the regularization of developments operating without an environmental license, by specifying conditions that allow for the continuity thereof; (iii) detailed definition of documents and studies required for each phase of the procedure; among other interesting items that reflect the practical reality of the current environmental licensing in Brazil.

The new bill for the required amendment is in advanced discussions in the Congress and its approval should take place by the end of 2017.

In any case, even with the improvements that will result from the modernization of the law, one should not forget that the environmental issue cannot be handled with Manichaeism, nor be guided by ideological issues.

Every development brings environmental impact. But if all interventions have an efficient analysis of their impacts, so that all environmental damages can be responsibly mitigated or offset, there is no need for so much conflict.

Deep down, as humans, we all have the same desire, which is the preservation of natural resources while ensuring a healthy life for the next generations. However, we should not ignore the evolution of modern technological alternatives and other opportunities to achieve efficiency in the evaluation and management of adverse impacts to the environment; otherwise we will be stuck in time and will be left behind in the development of our country.