NGOs warn about environmental risk of Licensing PL – 08/29/2023 – Environment

A technical note released this Tuesday (29) by ISA (Instituto Socioambiental) and OC (Climate Observatory) warns of the disruption of environmental licensing if PL (bill) 2,159 of 2021 is approved.

The NGOs consider that the current wording is “a proposal for an ‘Environmental Non-License Law’, which jeopardizes the protection of the environment, the socio-environmental rights enshrined in the 1988 Charter and public health”.

The text was approved in the Chamber of Deputies in 2021 and is awaiting a vote in the Senate Environment and Agriculture committees.

The motivation for publishing the note was the launch of the New PAC (Growth Acceleration Program). The Lula government’s program (PT) encompasses a set of policies focused on infrastructure and institutional measures for the expansion of public and private investments —among them, the “improvement of the regulatory environment and environmental licensing”.

“In the PAC, the item [número] one of the points raised is the question of revising the licensing legislation”, says Maurício Guetta, ISA’s legal consultant.

“The Executive’s idea is to enable the approval of a law and internal meetings of the Executive and meetings with the two rapporteurs are taking place [do PL]”, says Suely Araújo, senior specialist in public policies at the Climate Observatory. The rapporteurs are senators Tereza Cristina (PP-MS), former Minister of Agriculture in the Jair Bolsonaro government, and Confúcio Moura (MDB-TO).

The Civil House was contacted by the report for clarification on the revision of the environmental licensing proposed in the PAC and the criticisms pointed out by the NGOs to the bill, but there was no response until the publication of this text.

“The idea of ​​the technical note is to show that we have paths that can, at the very least, alleviate the problems of the law and face the most controversial points”, says Araújo.

The note states that, if the text is approved by the Senate and transformed into law as it is, “it will generate its immediate judicialization, both by direct action of unconstitutionality, as by local actions against enterprises”.

The text lists points considered problematic, such as the waiver of the environmental license in most cases.

automatic licensing

One of the highlighted topics is the adoption of “self-licensing”, which has the technical name of LAC (license by adhesion and commitment), for certain undertakings and activities. LAC is already used in some states.

In this modality, the license is issued automatically upon self-declaration by the company, without requiring environmental impact studies and without any analysis by the licensing body. Monitoring is done by sampling.

The text of the PL is not very specific, saying only that the rule applies if the work does not cause “significant degradation of the environment”, the characteristics of the region are known and that there is no suppression of native vegetation.

“It can be said that, if PL nº 2.159/2021 is approved, 85.6% of the environmental licensing processes for mining activities and their tailings dams in Minas Gerais, which today are licensed after prior analysis by the environmental agency, will pass to be subject to licensing by adhesion and commitment”, says the note.

The NGOs’ proposal makes the text more restrictive, saying, for example, that the LAC would only apply to undertakings qualified as having little potential for environmental impact and low risk, in addition to not being able to be applied in conservation units.

Limits on prevention, mitigation and compensation actions

Another point addressed is the limitation on the conditions for granting the license —that is, the type of requirement or compensation that must be met by the entrepreneur for the activity to be carried out.

“Environmental constraints are the heart of licensing. They are those measures that are adopted to prevent, mitigate or compensate for impacts. What is foreseen in relation to constraints is an absurd limitation”, Guetta opines.

The text of the PL lists a series of situations in which the conditions would be limited, including saying that they “cannot oblige the entrepreneur to maintain or operate services under the responsibility of the public authorities”.

He explains that this type of understanding could be applied, among other cases, to combating illegal deforestation generated as a result of a work or economic activity. As this type of action is a public policy, according to the bill, the entrepreneur would not be obliged to adopt any measure to prevent it.

licensing waiver

A third aspect cited in the NGOs note is the cases in which licensing is waived. The bill delegates to states and municipalities the definition of in which cases licensing would be required and lists several cases in which the license would be exempt, whatever the size of the work.

The entities ask that the text be modified to include a minimum list, applied to the whole country, of undertakings that need an environmental license. This is because, they argue, its absence would imply very different rules between states and municipalities.

In the PL, among the cases in which the waiver is foreseen are “services and works aimed at the maintenance and improvement of infrastructure in pre-existing facilities”.

That could fit, for example, the paving of the BR-319, which connects Porto Velho to Manaus, since the highway has already been paved before. The work is the target of criticism from environmentalists, who see a potential explosion in deforestation in the region, the most preserved in the Amazon.

The entities propose to restrict the licensing exemption cases to four: military activities, insignificant impact works, emergency interventions and to prevent environmental damage or risk to life.

Social and legal consequences

The document also deals with other points, such as the exemption for extensive agriculture and livestock activities, the self-declaratory renewal of the license and threats to conservation units and indigenous and quilombola lands (especially those still in the process of homologation and titling).

“The text says that only homologated indigenous lands will be considered existing and we have 32% of indigenous lands still pending, in the process of demarcation. For quilombolas, only titled would be evaluated, when 92% of quilombola territories are still in the process of recognition” , points out ISA’s legal advisor.