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Forest fires, fallen trees and environmental licensing in Brazil

Atualizado: 5 de dez. de 2023


The Brazilian amazon forest has rightfully so occupied center stage in the media. From alarming news of blazing fires and deforestation to the Brazilian President’s declarations that the country’s vast protected lands are an obstacle to economic growth and deforestation data are lies, these are indeed somber times. The sheer magnitude of the area is a massive public policy challenge: Brazil is roughly the size of continental US and the amazon forest is roughly 40% of its territory. To any country, devising environmentally, culturally, economically sound strategies for the immensity of this territory is not an easy task. A strong legal base with sound application is imperative. This is a pivotal moment in the forest’s history – we are running out of time! Precisely at this juncture, beneath forest fires and fallen trees, lurks an even more insidious threat, because largely invisible to the public at large: proposed changes to the Brazilian environmental licensing system.

The environmental licensing procedures are a key component of the Brazilian Environmental Policy Act of 1981. Licensing is the foundation of the system’s edifice. At its core, two main principles: society’s right to participate in environmental decision-making and governmental actors’ duty to give full consideration to environmental impacts, direct and indirect, when making decisions regarding developmental policies. Furthermore, our Constitution of 1988, referred to as “citizen constitution” after decades of military government, elevated a sound environment to a fundamental right, imposing on public powers the duty to protect it. Licensing requirements, however, remained largely “dormant” until 1998, when Congress made it a crime to operate without a proper environmental license. Since then, there have been repeated attempts at forestalling the law’s application, ranging from legislative amendments and executive decrees to the underfunding and intimidating of environmental agencies tasked with its implementation.

Environmental licensing is a complex matter because the issues at stake are complex. How does one, for example, fully understand the impact of soybean agriculture in the amazon’s fragile soil? How does one measure the disruption, often devastation, to nature and local and indigenous communities of ports and facilities built to export such grains? These are not easy inquiries and the law requires full consideration of their impact and an open discussion with society. All these foundational requirements are under threat in the discussions now at the Brazilian congress, with profoundly nefarious consequences to the country, the world, current and future generations.

The text under discussion is predicated on “celerity and expedience,” on allowing the government to forge ahead with the economic development the country needs. While there is ample room for improvement in the current environmental licensing process, plagued with delays, that is not the law’s fault. So, the question is not to abolish protections, but rather why are institutions morose in the first place? These are political choices. Environmental agencies have been repeatedly underfunded over decades by design – more so during this administration. Is the solution, then, to dismantle the most important environmental tool in place to guarantee the protection of the country’s rich and unique environmental legacy?

In the amazon region, 95% of deforestation occurs within about 3 miles from highways and roads, an impact deemed indirect, which would, under the proposed changes, be removed from study.

The current text, now in its fourth version, is profoundly problematic. While an earlier version sought to incorporate feedback from civil society, the current one abandons any efforts at democratic consensus building in favor of dramatically weakening the licensing system. For instance, because of its narrow definition of the scope of environmental impact, it excludes from the environmental licensing analysis considerations of indirect impacts. In the amazon region, 95% of deforestation occurs within about 3 miles from highways and roads, an impact deemed indirect, which would, under the proposed changes, be removed from study (Socio Environmental Institute, Critical Aspects of Proposed Bill 3729/2004: Congressman Kim Kataguari, 07/19/2019.) The proposed bill goes further in its misguided flexibilization attempts, by either completely removing from environmental licensing certain projects related to highway improvements and maintenance or enabling “self-licensing” procedures. The Brazilian Socio Environmental Institute notes the well-established link between highway paving and deforestation in the Amazon, thus any abating of environmental licenses is particularly problematic for the region. Additionally, the text removes from environmental licensing certain agricultural activities, once an agricultural permit is obtained. The expansion of soy monoculture, one of the biggest threats to the region, would be, under this proposal, exempted from environmental licensing. The document further undoes the structed of environmental licensing by rendering “advisory” the deliberations of key organizations entrusted with the defense of indigenous lands, cultural heritage and conservation units. Thus, if FUNAI, the agency tasked with the protection of native Brazilians, determines a particular project negatively impacts native lands and communities, its opinion has basically no weight, the project can go full force ahead.

Full force to where? Why all the hurry? These are the matters we need to ask ourselves. All of us. All over the world. If the Amazon history teaches us anything is that we are interconnected and what we do the weakest link impacts all. It is by all means a challenge to envision policies for the Amazon. It would be a great challenge for any one country to do so. Brazil needs development. It needs jobs for its citizens. Environmental laws were never on the way to sound growth, to a vision of the country where the well-being of its people and the beauty of its nature not only coexist but create wealth and health for all. Environmental licensing fosters the opportunity for discernment and conversation about the activities that can takes us to the actualization of such goals. The amazon has always captured our imagination. The Brazilian government has, for centuries, been fixated on its occupation, from the Portuguese to the current President: conquest and colonize goes the mantra. The current President sees Brazil “like a virgin that every pervert from the outside lusts for,” (Leticia Casado and Ernesto Londono, Under Brazil’s Far-Right Leader, Amazon Protection Slashed and Forest Fall, New York Times, July 28th, 2019) resuscitating, in the defense of this damsel in distress, the old battle cry that “the Amazon is ours.” It is. Now what do we do with it? For one, we must not weaken the tools that help us truly understand the value of keeping its trees standing, its communities respected and its fragile, yet powerful biological processes operational.

FERNANDO WALCACER é Professor de Direito Ambiental (PUC-Rio) e Vice-Presidente do Instituto Brasileiro de Advocacia Pública. ANA LÚCIA BERNARDES NINA é mestre por Harvard School e doutora pela PUC-Rio.

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