The Brazilian Environmental Protection Agency (IBAMA) has issued Normative Instruction No. 9/2019, which modifies the procedure to request IBAMA’s consent to clear vegetation in areas of the Atlantic Forest that IBAMA has classified as primary forests and secondary forests in a good or fair state of regeneration.

Law No. 11,428/2006 only permits the clearing of this type of vegetation for:

  • A public utility facility (slated for construction in a primary or secondary forest in a good state of regeneration)
  • A public utility or social interest-related facility (slated for construction in a secondary forest in a fair state of regeneration)

… provided that:

  • The state of the forest and the nature of the work to be done at the facility has been assessed by the competent licensing environmental agency and
  • There is no alternative location for the facility.

IBAMA’s prior consent is a second-level approval and applies to rural areas larger than 50 ha and urban areas larger than 3 ha.

In these cases, pursuant to the new normative instruction, the competent environmental agency conducting the licensing proceeding (which may be a state or municipal EPA) must request consent from the IBAMA superintendent of the relevant state. IBAMA’s consent can only be requested after the local EPA has analyzed all documents submitted by the applicant and is in favor of granting the authorization for the company to clear the vegetation. As of the date in which the local EPA applies for IBAMA’s consent, IBAMA will have 30 days to conduct a preliminary review of the documents and 90 days to grant its final opinion.

In line with prior regulations, the new normative Instruction says that the calculation of the area to be cleared will include the total area mentioned in the relevant preliminary environmental license. In cases in which the clearing will be phased, the local EPA must apply for IBAMA’s consent prior to issuing each authorization for clearing the vegetation (“ASV”), for each phase. In other words, multiple applications must be made to IBAMA for a phased clearing.

The rule also sets forth that it is the competent local EPA—not the company benefitting from the ASV—that must do the following:

(i) Reply to and fulfill IBAMA’s requirements in the course of the proceeding;

(ii) Provide evidence of the project’s compliance with IBAMA requirements for prior consent (including with respect to the environmental offset of the facility and an area to be preserved);

(iii) Apply for renewal of IBAMA’s prior consent; and

(iv) Apply for a change in the prior consent if there is any change in the polygonal area contemplated for clearing.

Therefore, the rule is clear that the interested company will interact exclusively with the local EPA and will be a third party to the prior consent proceeding at IBAMA.

Worth noting is that the new normative instruction:

  • Expressly allows IBAMA to now conduct inspections of the area at any time. IBAMA may conduct inspections to check the conditions it imposed in the prior consent instrument, including that the environmental offset area is at least twice the size of cleared area (Article 13). The rule clarifies that the results of the inspections will be reported to the local EPA, which may, depending on IBAMA’s findings, take legal measures against the company.
  • Makes the company that applied for and obtained the corresponding ASV from the local EPA obliged to monitor and inspect the prior consent proceeding before IBAMA and to check whether the obligations of the normative instruction were observed by the local EPA. Otherwise, the company may be sanctioned.