Brazil's environmental protection agency Ibama pledged yesterday to ask a state supreme court to overturn a ruling halting the construction of a hydroelectric power project in the Amazon.
The plant was given the go-ahead by the agency to start building on 14 November. The legal challenge has thrown into question the extent of Ibama's powers and just how it should be licensing large-scale projects, say Brazil's leading environment lawyers.
Last week, after hearing the objections of a group of environmental organisations, Rondônia's third federal court suspended a partial permit issued by IBAMA which allowed Energia Sustentavel do Brasil (Enersus) to install the 3,300 megawatt plant in Jirau, on the Madeira river.
The licence would allow Enersus to lay the groundwork for heavier construction the following year.
Ibama's licensing procedure has three stages: preliminary licensing, installation licensing, and operation licensing. As Roberta Leonhardt, of Machado, Meyer, Sendacz e Opice Advogados explains, "in the great majority of the cases Ibama issues a single licence, but we have come across projects in which the agency has split the licensing process into partial licences, depending on the characteristics of the project."
Mauricio Tomalsquim, president of the Mines and Energy Ministry's Energy Research Company, or EPE, said partial permits are allowed for hydroelectric power plants because if final approval of the dam is denied, the early basic work can be dismantled without any permanent damage to the environment.
The federal court, however, ruled that work should only begin once Ibama had granted an environmental licence for the entire project.
Pinheiro Neto Advogados' Werner Grau Neto thinks that the case will focus on any possible breach of procedure or illegality by Ibama in choosing to license the project in this way. One point, he thinks, will divide the parties: "Did Ibama license a project that will cause an irreversible impact on the environment?"
If it is so, he says, "It must have acted prematurely. What if the project itself is not licensed by Ibama in the future, for some technical reason? The impact is already there. It would make no sense to have the damage done before checking the feasibility of the project."
Grau added that Brazilian courts in the past have tended to prefer a licence covering the whole project, not just part of it.
GDF Suez, the majority owner of the project, won the bid in May with its minority partners, construction company Camargo Corrêa and government controlled energy company Eletrobras for the rights to operate the Jirau facility for 30 years.
Speaking on the day the partial licence was awarded, environment minister Carlos Minc said: "We don't want to make it too complicated to approve these clean-energy projects because the longer these take to be built, the more we end up using fossil fuels to generate electricity."
(Latin Lawyer, 05.12.2008)