2023-08-29 16:13:00
PL 2,159/2021, which implodes the rules of environmental licensing in Brazil, can be voted on at any time by the Senate’s Agriculture and Environment committees. Approved in the Chamber in a tract in 2021, the text is of interest to two of the most powerful lobbies in Congress, the ruralist and the industry. If it is not greatly improved by the senators, it will make the majority of undertakings exempt from licenses and environmental impact studies, benefiting companies and socializing environmental, social and health damage.
Licensing is the centerpiece of the National Environmental Policy, established over 40 years ago. Before him, children were born without brains because of industrial pollution in Cubatão and hydroelectric dams flooded thousands of square kilometers of the Amazon to generate almost no energy. For having disfigured the environmental licensing institute, PL 2159 became known as the “mother of all cattle”. The relaunch of the PAC (Growth Acceleration Program), this month, increases the pressure for the approval of the law, even if it is clearly out of line with the promises of President Luiz Inácio Lula da Silva to encourage the ecological transition and eliminate deforestation.
The Instituto Socioambiental and the Observatório do Clima published a joint technical note analyzing the PL (read it here). The document brings good news and bad news. The bad thing is that the law, as it stands, has such a large set of inconsistencies and unconstitutionalities that it will be the object of mass judicialization — hindering precisely what it proposes to streamline. The good news is that the project is fixable: the senators themselves have already proposed several amendments that alleviate problems or eliminate unconstitutional passages, as long as the House adopts them to replace the basic text. Below are listed ten environmental horrors of the PL, analyzed in the ISA and OC note.
Download the technical note!
1 – BROAD, GENERAL AND UNRESTRICTED EXEMPTION
Article 8 of PL 2,159 brings a list of 13 types of enterprise that are exempt from environmental licensing. Among them, sewage treatment plants and “improvement” services for existing structures. To give just two examples, the article could allow the dams on the Madeira River to be expanded and the BR-319 (Porto Velho-Manaus), which crosses the most preserved region of the biome, to be paved, since the Dnit considers that the road, which used to have asphalt in the past, would only be “repaved”.
2 – “LOW IMPACT”, WHO DEFINES IT?
The law says that environmental licensing is necessary for undertakings with potential environmental impact, being less rigorous for low-impact works. Until then, so good. But who defines what is “low impact”? According to article 4 of the PL, each “federal entity”, that is, each state and municipality, can simply decree that, say, sanitary landfills, tailings dams or any industry are of low impact. To avoid the mess of regulations — and potentially tragic dispensations — there needs to be a minimum federal list of developments that are subject to licensing.
3 – FREE BOI: AGRO WITHOUT LICENSE
Whoever wants to literally move the cattle across Brazil can do so without needing an environmental license: article 9 of the PL exempts extensive agriculture and livestock activities from licensing, including potentially illegal lands (the text mentions exemption for properties with Rural Environmental Registry “homologation pending”; as the CAR is self-declaratory, what the farmer says is his, even if it is not) is valid). The exemption contradicts three judgments of the STF, which determined the unconstitutionality of norms that gave free passage to agro.
4 – BRUMADINHO FEELINGS: SELF-DECLARATORY LICENSE RENEWAL
Paragraphs 4 and 5 of article 7 of PL 2,159 allow the entrepreneur to renew his expired license without any consultation with environmental agencies, just filling out a declaration on the internet. Thus, if the license for an enterprise expires before the conditions of the license are met, the entrepreneur does not need to satisfy anyone. Imagine, for example, that the renewal of the operating license for a tailings dam could be done over the internet. In better conditions than this we had Brumadinho, a license renewal done on the mat and without adequate follow-up. Now think about what would happen without any follow-up.
5 – PRIVATE PROFIT, PUBLIC LOSS: LIMITATION OF CONDITIONS
Imagine that the implementation of a work — say, a large R$ 40 billion hydroelectric plant in a city in the interior of Pará — causes a large population increase, leading to pressure on public services such as health, safety and sanitation. Imagine that the entrepreneur feels that it is unfair that he is obliged, by the licensing conditions, to build schools, prisons and a sewage system in the city, even if this represents a fraction of the value of the work. The entire burden would remain with the company and the bonus with the entrepreneur. This is what paragraphs 1, 2 and 5 of article 13 of PL 2,159 propose, which unconstitutionally limit the conditions for licensing. In the example of Ferrogrão alone, limiting the constraints (in this case, measures against indirect deforestation induced by the work) could cause the destruction of 53,000 km2 of forests (one Rio Grande do Norte) by 2030.
6 – SELF-LICENSING FOR EVERYONE
A hole-filling operation in the urban area of São Paulo cannot have the same environmental requirements as paving a road in the Pantanal, right? For this reason, since 1997, Conama already foresees that some activities may have simplified environmental licensing. However, PL 2,159 takes this to the extreme: in its article 21, it provides that some ventures can “self-license”, with the entrepreneur filling out a form on the internet swearing to have good conduct and being subject to inspection. This self-licensing, whose technical name is License by Adhesion and Commitment (LAC), has already been adopted in some states and considered constitutional by the Supreme Court. But, in the licensing bill, the LAC can be applied to any project that is not qualified as having low and medium impacts. That is, the list tends to be long, since the pressures for flexibility are more effective on state governments and city halls. LAC tends to become the rule and licensing the exception. To return to the example of Brumadinho, the technical note estimates that almost 86% of licensing processes for mining activities in Minas Gerais could be done by LAC if the law is approved as it is. Another article, number 11, provides for LAC for “capacity expansion” of highways. It is yet another case in which the BR-319, in Amazonas, could be built without an environmental license.
7 – CRIME PAYS: CORRECTIVE LICENSE AMNESTY MALFEIT
The corrective operation license, or LOC, is applied when a project is operating without an environmental license. It is a chance for the entrepreneur to amend and get rid of fines. But article 22 of the licensing PL is excessively generous: in addition to suspending fines, it provides amnesty for past environmental crimes and allows corrections to be made by adherence and commitment. In this way, it pays for the entrepreneur to simply ignore the licensing when planning the work and enter into this great environmental “Refis” later.
8 – THREAT TO INDIGENOUS PEOPLE, QUILOMBOLS AND PROTECTED AREAS
One of the most serious parts of PL 2,159 are articles 39 to 42, which deal with the so-called “authorities involved”, that is, the role of Funai, Palmares Foundation, Iphan (National Historical and Artistic Heritage Institute) and ICMBio in licensing. The text states that these bodies will only be able to comment on licensing — and even then without veto power — when conservation units, indigenous lands, quilombola territories and archaeological sites are either at the construction site or in its direct influence zone, or that is, in its immediate surroundings. The analysis of indigenous and quilombola lands, moreover, only considers for licensing purposes those that are homologated and titled. This would leave 32% of indigenous lands and 92% of quilombola territories in Brazil unprotected. For conservation units, the situation is even worse: in addition to limiting the impact analysis to the construction site (excluding even the CUs in the vicinity of the project), article 58 of the PL removes all power from ICMBio and state environmental agencies to bar construction. Thus, if Dnit decides to open a road in the middle of the Iguaçu National Park, for example, the environmental agency will not be able to do anything but accept compensation.
9 – UNREAL DEADLINES
Article 43 of the PL stipulates maximum terms for licensing. In more complex cases, when an environmental impact study is required — such as, for example, large hydroelectric plants in the Amazon — the preliminary license will have to be issued within ten months. Short deadlines tend to produce more licensing turmoil and increase lawsuits.
10 – BENCHES OFF THE HOOK
In its article 54, PL 2,159 introduces an unprecedented element in the framework of environmental licensing, which is to prevent banks from being punished for environmental crimes committed by enterprises they finance. The mere presentation of a license by the enterprise — even if it is a self-license taken online, which tends to become the rule — already excludes banks from any responsibility. This conflicts with the 1981 National Environmental Policy Law, which provides for co-responsibility of financial institutions and is the basis, for example, of the decree that prohibited bank credit for deforesters with embargoed areas in the Amazon.
Watch the press conference with Suely Araújo, from OC and Mauricio Guetta, from ISA:
About the Climate Observatory
Founded in 2002, it is the main Brazilian civil society network on the climate agenda, with more than 90 member organizations, including environmental NGOs, research institutes and social movements. Its objective is to help build a decarbonized, egalitarian, prosperous and sustainable Brazil, in the fight against the climate crisis. Since 2013, the OC publishes the SEEG, the annual estimate of greenhouse gas emissions in Brazil.
About ISA
Instituto Socioambiental is a non-profit civil association, founded on April 22, 1994, by people with significant training and experience in the fight for social and environmental rights. Its institutional mission is to defend social, collective and diffuse goods and rights related to the environment, cultural heritage, human and peoples’ rights. It produces studies, research, projects and programs that promote socio-environmental sustainability, promoting the cultural and biological diversity of the country.
Mud from the Mariana disaster reaches the Atlantic Ocean. Failure to comply with conditions and fraud in licensing contributed to the greatest environmental tragedy in the country|Fred Loureiro/Governo do ES
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