The Strategic Environmental Assessment (AAE) has been causing concern among companies for some time. This is because, although this study is not legally required for environmental licensing of potentially polluting activities, the absence of the AAE has been viewed by some environmental agencies as an obstacle for the issuance of environmental licenses.
The Ministry of the Environment (MMA) defines AAEs as "an environmental policy instrument whose purpose is helping decision-makers in advance with the process of identifying and evaluating impacts and effects, thereby maximizing the positive ones and minimizing the negative ones, which a given strategic decision, regarding the implementation of a policy, plan, or program, could trigger for the environment or the sustainability of the use of natural resources, at whatever level of planning."
While discussions of the concept, importance, and (in)dispensability of AAEs have advanced in recent years, it is no exaggeration to state that we still face a scenario of legal uncertainty on the issue. The scarce regulations on the study in question create a certain nebulousness due to the absence of a coherent legal framework. How can one demand a particular study if the law does not even clarify in what situations it should be required? How can one demand from entrepreneurs a macro-assessment of the environmental aspects of an entire region not necessarily related to the specific activity that they will carry out?
In order to resolve this situation of uncertainty and to enable a proper environment for the effective sustainable development, it is crucial that the subject matter be explored in more depth.
In order to shed light on the topic, the Federal Attorney General's Office (AGU), through the Specialized Federal Prosecutor's Office within the Brazilian Institute of the Environment and Renewable Natural Resources (PFE-IBAMA), issued Opinion No. 00007/2017/COJUD/PFE IBAMA SEDE/PGF/AGU. The Attorney General stated, among other arguments, the following:
“We emphasize that the AAE serves as support for government planning (PPP), and does not bind it nor the environmental licensing (...). The assessment of the cumulative and synergistic impacts of a licensed object is entirely possible within the environmental licensing. The measurement of cumulative and synergistic impacts is not exclusive to the AAE. This same function is present in the Environmental Impact Study (EIA), as clearly provisioned in the Conama Resolution 01/86, but is also present in other types of impact studies, since these must contextualize the environmental impacts caused, therein analyzing how the impacts of the licensed object behave in the environment, entailing, therefore a cumulativeness and synergy assessment, in proportion to their impacts. (...) What is argued herein is that an ecologically balanced environment is not adrift without the prevision of an AAE."
It may be noted that the AGU considers an AAE to be a supporting and optional instrument. Thus, requiring it in the context of environmental licensing proceedings is unnecessary. According to the PFE-IBAMA, in addition to the fact that the assessment is not required by law and is directed only at non-binding orientation of public policies, its essential content (for example, the measurement of cumulative and synergistic environmental impacts) is already included in other environmental studies focused specifically on the environmental licensing of activities and undertakings, such as the Environmental Impact Study and the corresponding Environmental Impact Report (EIA/RIMA).
In view of the aforementioned legislative disorientation, Draft Law No. 3,729/2004 (the proposed General Environmental Licensing Law, still under analysis by Congress) contains a chapter on AAEs and clarifies that:
“Article 39: (...)
Paragraph 2: The AAE cannot be demanded as a requirement for environmental licensing and not having one shall not constitute an obstacle to or hinder the licensing process."
The same draft law clarifies that AAEs “shall be carried out by the agencies responsible for the formulation and planning of government policies, plans, and programs" (Article 38, sole paragraph), that is, by the Government.
Although there are different understandings in Brazil, we note that currently there is a tendency in Brazil to consider AAEs to be studies attributable to the government authorities, which should guide them as a tool in decision-making for government policies, plans, and programs. AAE, therefore, are instruments that should be used even before – for the creation of – the policies. The environmental licensing, on the other hand, consists of an instrument to implement the already existing policies.
Therefore, it is reasonable to argue that the duty to prepare an AAE cannot be transferred to individuals and legal entities under private law in the context of administrative environmental licensing processes. Positions to the contrary may stimulate masked arbitrariness under a false mantle of administrative discretion, thereby fostering the already acute legal uncertainty that plagues Brazil’s Environmental Law.