Introduction
Resolution 237/97
Complementary law
Comment
Ever since the Constitution was enacted in 1988, most of the sections that aimed to address environmental concerns have been consolidated by incidental laws and regulations, although a few relevant topics have still not been completely clarified by lawmakers. Article 23 of the Constitution covers one such topic, under which the federal government, the states and the municipalities have the power to protect the environment and to defend it against pollution of any kind.
In fact, Brazil legally recognised the significance of environmental permits before 1988, through Federal Law 6.938/81. As a result, almost all of the Brazilian states - and even some municipalities - have created their own environmental agencies, with the purpose of executing this procedure.
Although Federal Law 6.938/81 represented a milestone in Brazil's environmental protection legislation, many disputes have arisen from this law. In a number of cases, essential infrastructure projects had to be put on hold while environmental agencies interested in the permit procedure disputed their jurisdiction, representing a delay not only for local development, but also for Brazil's economic growth.
In 1997 the National Council of Environment passed Resolution 237/97 aiming to resolve such controversy. The resolution established the rules applicable to the environmental permit procedure and defined the jurisdiction of federal, state and local environmental agencies. However, the resolution has been constantly criticised by those who feel that the council overstepped its authority. They feel that the council should not have regulated the jurisdiction of environmental agencies, since Section I of Article 23 of the Constitution clearly establishes that a complementary law must be passed in order to delimit jurisdiction properly among federal, state and local authorities while protecting the environment.
In January 2010 the legislature therefore proposed a complementary law (PLC 01/10) aimed at resolving jurisdiction issues on environmental permitting for good and taking into account the rule established in Article 23 of the Constitution. Under this proposition, for the purposes of determining the competent authority for environmental permitting in each specific case, the range of potential environmental impacts caused by the activity under evaluation is the deciding factor, as follows:
- The federal agency may perform the environmental permitting of activities that impact on more than one state, as well as those that are considered strategic for the nation's interests (eg, military and nuclear activities).
- State agencies will be in charge of environmental permitting of activities that impact on more than one municipality within the same state.
- Local agencies will be in charge of environmental permitting activities that have an impact within its territorial limits.
This method for selecting the competent environmental agency was already being applied in the legal system, due to Resolution 237/97 and in light of former court decisions.
Despite the fact that PLC 01/10 largely foresees the same rules contained in Resolution 237/97, some innovations have been proposed. First, it establishes new instruments for environmental protection cooperation, such as public consortiums and agreements between federal, state and municipal authorities. It also creates the so-called 'tripartite commissions' in the federal and state levels, aimed at triggering the shared and decentralised environmental management.
With regard to penalties imposed by the environmental agencies, PLC 01/10 aims at resolving another disturbing controversy - in the present scenario, any of the environmental agencies can apply penalties in case of environmental violations foreseen in the legislation. This current legal configuration lacks legal stability and has led to a series of judicial disputes. In this sense, once PLC 01/10 has been approved, the only environmental agency with powers to apply penalties in case of environmental violations will be the one in charge of the environmental permitting.
Considering the relevance of PLC 01/10 for speeding up the development of infrastructure in Brazil, proposition of the law has been classified as a matter of urgency, and therefore has been selected for a faster legislative process. Above all, PLC 01/10 represents hope for the end of jurisdiction disputes among federal, state and local environmental agencies in Brazil, increasing the efficiency of environmental permitting procedures and allowing the country to develop its infrastructure in a swift and environmentally conscious manner.
For further information on this topic please contact Maria Alice Doria or Lucian Moreira at Doria Jacobina Rosado e Gondinho by telephone (+55 21 3523 9090), fax (+55 21 3523 9080) or email ([email protected] or [email protected]).