After 17 years in discussion, the general text for the General Environmental Licensing Law – Bill No. 3,729/04 – has been approved in the House of Representatives last May.
The new licensing model proposed by the bill aims to reduce environmental licensing proceedings bureaucracy, ensuring greater legal certainty in the vast and decentralized environmental legislation in Brazil.
The intended flexibilization of environmental licensing proceedings despite being the biggest innovation of Bill No. 3,729/04, it is, in fact, an old concern that has accompanied natural resource managers in Brazil for years and that has been dragging on throughout the history of the Brazilian environmental licensing system itself.
This system refers to the beginnings of Portuguese planning (marked by fragmented authorizations issued by a central government for access to natural resources, such as suppression of vegetation, hunting, fishing, use of water resources, etc.), extending until the early 1970s (with the emergence of a modern environmental licensing system).[1]
In a second moment, there was a movement led by the state governments of Rio de Janeiro and São Paulo, which proposed the first rules on environmental licensing (especially those that dealt with the issue of pollution in large cities). However, it was only after the Federal Decree No. 88,351/83[2] – which at the time regulated the National Environment Policy (Federal Law No. 6,938/81) – and, more specifically, with the edition of the Resolution of the National Council for the Environment (Conama) No. 01/86 – which established guidelines and basic criteria for the preparation of Environmental Impact Assessments and Environmental Impact Reports (Estudos de Impacto Ambiental and Relatórios de Impacto Ambiental - EIA/RIMA) – that the structuring of environmental licensing proceedings began as we know it today, regarded as rigid and inflexible, founded on a three-phase system of licenses (Preliminary License, Installation License and Operating License) and preceded by large and complex environmental impact studies.
This second moment of licensing proceedings extends until the end of the 1990s, when the first reflections of the CONAMA’s Resolution No. 237/97 can be observed, which, in addition to establishing more detailed guidelines for environmental licensing proceedings, set forth evident incentives for the simplification of these proceedings in Brazil.[3]
After 2011, with the approval of Complementary Law No. 140/11, there was an intense movement of decentralization of environmental licensing proceedings, also including municipal environmental bodies (in case of activities or enterprises of local environmental impact). However, even though environmental licensing has been adopted for decades, to this day the procedure is based on infralegal and local standards, especially legal resolutions enacted by CONAMA and local legislation (state and municipal).
Since then, environmental licensing has undergone a continuous process of bureaucracy reduction, adapting at each level of the federation to different types of activities and the political-institutional context to which it is submitted. This continuous movement of adaptation and decentralization of environmental legislation has resulted in an increasingly complex system, characterized by hundreds of licensing modalities and arrangements, with the assessment of environmental impacts by the Federal Government, the State Governments and more than 5,500 municipalities that make up Brazil, often generating greater legal uncertainty for the entrepreneur.
The text of Bill No. 3,729/04 approved in the House of Representatives seems to follow the tendency to enable the flexibilization of bureaucratic requirements for environmental licensing proceedings, with the objective of essentially increasing administrative efficiency and legal certainty.
The proposal intends to insert significant changes in the licensing proceedings currently practiced, among which we can mention the following:
- Licensing exemption of various activities: according to the proposed Bill, for example, agriculture, livestock and forestry activities are now exempted from environmental licensing, in addition to 13 other activities[4] that, by current rules, are considered to have an environmental impact subject of licensing proceedings, such as basic sanitation works, maintenance on roads and ports, distribution of low voltage energy, as well as those considered of negligible size by the licensing authority;
- License by Acceptance and Commitment (Licença por Adesão e Compromisso – LAC): the proposed Bill provides for the modality of self-declaratory licensing, on the Internet, which, in practice, allows that the certificate issued according to data entered into the system by the entrepreneur to be considered sufficient document for the environmental licensing of certain activities. According to the text, the modality of licensing by acceptance and commitment will be subsidized by the drafting of an Enterprise Characterization Report (Relatório de Caractrização do Empreendimento - RCE), containing the technical information for its installation and operation. Such licensing modality would apply to: (i) activities or undertakings that do not fall on the category of potentially causing significant environmental impact; and (ii) when previously known the characteristics of the region, conditions of installation and operation, environmental impacts of the typology of the activity or enterprise and the necessary environmental control measures. It will be up to the environmental licensing body to verify, analyze and inspect the information provided on the RCE, even if only by sampling;
- Single Environmental License (Licença Ambiental Única – LAU): the proposed Bill provides for the simplification of three-phase licensing proceedings for a single-phase licensing proceeding, in which the licensing authority must define the scope of the necessary environmental study;
- Rural Environmental Registry (Cadastro Ambiental Rural – CAR): under the proposal, enterprises and activities established in rural properties may submit the CAR – even if pending approval – for application for environmental licensing, even if there are issues involving overlapping with special protection areas (such as indigenous lands, quilombola lands and conservation units, for example);
- Responsibility of financial institutions: the project provides for the exclusion of responsibility of financial institutions from projects with high risk of environmental impact; and
- Intervening bodies: the current proposal unties the environmental licensing proceedings from previous consent of other intervening bodies (such as Incra, Funai, Iphan and ICMBio).
The approved Bill was sent to the Senate and it is worth monitoring its approval and submission for presidential sanction or return to the House of Representatives with proposed amendments.
[1] It can be recalled the application of the first Environmental Impact Assessment (Estudo de Impacto Ambiental - EIA) in Brazil, not in a context of environmental licensing itself, but as a condition of the World Bank for financing the works of the Sobradinho Hydroelectric Power Plant, in the state of Bahia.
[2] Repealed by Federal Decree No. 99,274/90.
[3] "Art. 12. The competent environmental agency will define, if necessary, specific procedures for environmental licenses, in view of the nature, characteristics and peculiarities of the activity or enterprise, and also the compatible of the licensing process with the planning, implementation and operation stages. §1. It may be established simplified procedures for activities and projects with a small potential of environmental impact, which should be approved by the respective Environmental Councils."
[4] "Art. 8º The following activities or undertakings are not subject to environmental licensing: I – activities of military nature, as set forth in Complementary Law No. 97/99; II – activities considered of insignificant size by the licensing authority; III – activities not included in the lists of activities or undertakings subject to environmental licensing established in the form of §1 of Art. 4 of this Law; IV – works and emergency interventions to respond to the collapse of infrastructure works, cities or disasters; V – urgent works and interventions that aim to prevent the occurrence of imminent environmental damage or to interrupt a situation that generates risk to life; VI – public service works of distribution of electricity up to the voltage level of 69 Kv (sixty-nine kilovolts), carried out in urban or rural areas; VII – water and sewage treatment systems and stations; VIII – services and works aimed at the maintenance and improvement of infrastructure in pre-existing installations or in domain and servitude strips, including maintenance dredging; IX – voluntary or similar delivery points covered by reverse logistics systems, pursuant to Law No. 12,305/10; X – solid waste sorting plants, mechanized or not, whose waste must be sent for environmentally appropriate final destination, pursuant to Law No. 12,305/10; XI – patios, structures and equipment for composting organic waste; XII –recycling plants of civil construction waste, that must be sent for environmentally appropriate final destination; and XIII – ecopoints and ecocenters, understood as places of voluntary delivery of household or similar waste, in a segregated and orderly manner in stalls or buckets, prepared for recycling or other forms of environmentally appropriate final destination."
