The new landmark of environmental licensing (PL 2,159/2021) approved by the Senate last Wednesday, 21, is named unconstitutional by environmentalists and the Ministry of Environment and Climate Change (MMA). To the Broadcast (Real -time news system of the state group), lawyers evaluate that the matter has controversial aspects that should actually reach the judiciary.
In a statement, the MMA says that the project “directly violates the Federal Constitution” by seeing conflicts with article 225, which provides: “Everyone has the right to the environmentally balanced environment, common use of the people and essential to the healthy quality of life, imposing on the public power and the community the duty to defend and preserve it for present and future generations”.
Senator Fabiano Contarato (PT-ES) made a long speech before the project vote, when he pointed to see unconstitutionality in the project for the same reasons pointed out by the MMA. He complained about the flexibility of licenses for enterprises classified as “medium polluting potential.”
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It is also a point of criticism to transfer the assessment of which enterprises need environmental licenses from federal agencies to municipal and state bodies. “By allowing the definition of activities subject to environmental licensing to occur without national coordination and outside the scope of collegiate bodies, the project can promote the uncoordinated action between Union, States and Municipalities and dismantle the mechanisms of social participation”, considers the MMA.
According to Marina Silva’s folder, the project is silent on the climate crisis, “without even mentioning the issue in its content, making the licensing process disregard this crucial theme.” Also according to the MMA, the proposal will have a negative impact on social and environmental management, “besides providing, possibly, high levels of judicialization, which will make the environmental licensing process more slow and costly for society and the Brazilian state.”
Analysts
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Lawyer Ana Claudia Franco evaluates that the text approved in the Senate is radically distance from the original version, which began in 2004, when supported by environmentalists, configuring, in her view, a “high risk of judicialization”. She considers that the absence of minimum general guidelines when delegating to states and municipalities the definition of which activities actually requires a federative conflict. This gap, he notes, tends to be questioned as a violation of the federative pact and article 225 of the Constitution.
Franco also highlights specific provisions that can cause direct unconstitutionality actions in the Federal Supreme Court: the automatic exemption of licensing for agricultural activities through self -declaration; The detachment between licensing and granting water use and the expansion of adhesion and commitment license (LAC) to medium -sized enterprises, which contradicts previous STF decisions, which limit LAC to low impact activities.
Lawyer Amália S. Botter Fabbr, partner in the area of Environmental Law at the Wolf of Rizzo Advogados, says he recognizes that the essence of the project seeks to give greater efficiency and homogeneity to the process, relieving the overload of environmental agencies by differentiating low impact activities from those of greater complexity.
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However, Fabbr warns that the self -declaration mechanism, automatic license renewal and broad dismissal hypotheses – such as existing infrastructure maintenance works – may result in a strong reaction from the prosecutor and civil society entities, precisely by reducing previous controls in potentially significant impact enterprises.
