Prof. José Antônio Tietzmann E Silva THE NEW FOREST ACT (LAW N /2012) KEYWORDS BRAZIL NEW FOREST LAW MODIFICATION OF LEGAL CONCEPTS

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1 THE NEW FOREST ACT (LAW N /2012) BRAZIL NEW FOREST LAW MODIFICATION OF LEGAL CONCEPTS MODIFICATION OF LEGAL CRITERIA MODIFICATION OF LEGAL THRESHOLDS ADOPTION OF LESS-BINDING NORMS AMNESTIE TO ILLEGAL DEFORESTATION CASES Brazilian new legal regime for forest protection, given by the /2012 Act is in fact a great case of environmental regression. In fact, in a norm with appearance of sustainability, the new Act promotes a new legal regime for those who have acted illegally until July 2008, providing a real amnesty for illegal deforesting and logging. That s partly made by the concept of consolidated rural areas (areas in a rural property that have been occupied with constructions, structure improvements as well as agricultural, forestry or pasturing before July 22 nd 2008). In these areas landowners are allowed to reduce the extension of the permanent preservation areas, concerning thus riparian vegetation, wetlands, mangroves, mountain areas etc. as well as keeping the very extension of the remaining legal reserve of forest, even if they ve illegally deforested. Permanent preservation and legal reserve areas were adopted by the previous legal regime, established by the 1965 Forest Code (now revoked). The first ones are defined as the areas having the environmental functions of preserving hydric resources, landscape, geological stability, biodiversity, genic flow of fauna and flora, soils, as well as guaranteeing the well-being of human populations. They are protected whether they re covered with vegetation or not. As for the legal reserve areas, they are located inside a rural property or possession, with the function of guaranteeing the economic and sustainable use of the land s natural resources, helping the conservation and the rehabilitation of ecological processes and promoting the conservation of biodiversity, as well as providing shelter and protection for the wild fauna and native flora. Their extension varies from 20% to 80% of the property area. The legal protection of forests in Brazil has regressed also because some of the new Act s definitions. In this way, we may look, on the one hand, at the definitions of activities of social interest, that comprehends: the implementation of the structure necessary to sports, leisure, cultural and recreational activities in open air, in rural and urban consolidated areas ; land tenure regularization in urban consolidated areas occupied mostly by poor people; the structure of pipes for every enterprise that uses water; prospection and exploitation of sand, clay, gravel and ballast; other activities, defined by a presidential decree. On the other hand, the definition for activities of public need includes: transportation; vial systems; urban settlements; sanitation; solid waste management; energy; telecommunications; radiocast; sport arenas and all of the infrastructure necessary for the realization of regional, national or international competitions; mining; other activities, defined by a presidential decree. In both cases social interest and/or public need the suppression of vegetation on permanent preservation areas is possible, without considering technical and locational options, for the sake of infrastructure needs. In the calculation of the permanent preservation areas, it s important to stress that the measuring of the riparian protected vegetation, considering the minimum regular limit of 30 meters, is now counted from the regular riverbank and not as before (the 1965 legal regime), when it must ve been counted from the limit of the floods. Well, considering that in rural consolidated areas the exceptions to the general regime allow a riparian vegetation of 5 meters, environmental protection is really endangered especially when we take a look at

2 the functions of a permanent preservation area. Concerning the legal reserve areas regime, the new law waives rural properties with a maximum area of 4 fiscal modules of having it. The fiscal module is a measuring unit fixed for each municipality by the National Colonization and Agrarian Reform Institute (INCRA), considering the following factors: the dominant type of rural exploitation in the municipal territory; the income obtained with this exploitation; other kinds of rural exploitations existing in the same territory that, though not dominant, are important considering the income or the occupied area; the notion of familiar agriculture. The fiscal module is a parameter for the classification of the rural property by its size. In this way, a small property is the one with an area under 4 fiscal modules; a medium property, between 4 and 15 fiscal modules. It s also used to define the landowners/possessors that may benefit from the National Familiar Agriculture Program (PRONAF). Anyway, this means that properties with an extension going from 20 to 440 hectares depending on the Brazilian region concerned don t have to maintain or to recover their legal reserve areas. Rural properties that don t have their legal reserves and must recover it are able to their compensation. The landowner can compensate it beyond the limits of his/her property, as long as it is in the same biome Amazon rainforest, Caatinga, Cerrado, Atlantic Forest, Pantanal, Southern Fields. Considering the extension of Brazilian biomes, this is a regression when compared to the previous norm. In fact, the 1965 s Forest Code allowed the compensation to be made within the same river basin, preferably the same micro-river basin, which is of great importance to biodiversity conservation, to the genic flow of fauna and flora, as well as for the preservation of hydric resources. Another point of interest is the fact that all of the penalties imposed by the Administration and the criminal prosecutions for environmental crimes are suspended until the regulation of the new Act. Considering: a) that the federal law itself gives a 1-year time (that may be prorogued) for the regulation; b) that the country has 26 federate States, and; c) that, by now (June 30 th, 2013), none of these States has approved its forest law, this leads to a clear impunity to the ones that have illegally deforested in rural consolidated areas.

3 THE PROPOSAL OF A NEW FOREST ACT FOR THE STATE OF GOIÁS Following the national scenario as well as the constitutional competence for adopting forest protection law, the Government of Goiás, one of the 26 states of the Brazilian Federation, presented and is ready to adopt on the 1 st of July a proposal for its Forest Act. The text is to be rapidly voted by the State Parliament under a great pressure for approval both from the Government and the agribusiness sector. The negative effects on biodiversity, soil protection, water quality and quantity are clear. We must note that there are also impacts on human settlements, due to the environmental risks of occupying permanent protection areas. BRAZIL STATE OF GOIÁS NEW FOREST CODE MODIFICATION OF LEGAL CONCEPTS MODIFICATION OF LEGAL CRITERIA MODIFICATION OF LEGAL THRESHOLDS ADOPTION OF LESS-BINDING NORMS AMNESTIE TO ILLEGAL DEFORESTATION CASES Goiás new Forest Act proposal defines, in consonance with the federal law, the so-called consolidated rural areas (areas in a rural property that have been occupied with constructions, structure improvements as well as agricultural, forestry or pasturing before July 22 nd 2008). Landowners are allowed to reduce, in these areas, the extension of the permanent preservation areas, concerning thus riparian vegetation, wetlands, mangroves, mountain areas etc. as well as keeping the very extension of the remaining legal reserve of forest, even if they ve illegally deforested. The State proposal removes from the permanent preservation areas the flood plains. It expresses a thing that the federal norm doesn t, because it is suggested by the way of measuring the riparian protected vegetation (as permanent preservation area ): the minimum regular limit of 30 meters is now counted from the regular riverbank and not as before (the 1965 legal regime), when it must ve been counted from the limit of the floods. The modifications on the definitions of activities of social interest (the implementation of the structure necessary to sports, leisure, cultural and recreational activities in open air, in rural and urban consolidated areas ; land tenure regularization in urban consolidated areas occupied mostly by poor people; the structure of pipes for every enterprise that uses water; prospection and exploitation of sand, clay, gravel and ballast; other activities, defined by a presidential decree) and activities of public need (transportation; vial systems; urban settlements; sanitation; solid waste management; energy; telecommunications; radiocast; sport arenas and all of the infrastructure necessary for the realization of regional, national or international competitions; mining; other activities, defined by a presidential decree) allow the suppression of vegetation on permanent preservation areas, without considering technical and locational options, for the sake of infrastructure needs. All of the penalties imposed by the Administration and the criminal prosecutions for environmental crimes are suspended until the regulation of the federal law, a path followed by Goiás legislator. Considering: a) that the federal law itself gives a 1-year time (that may be prorogued) for the regulation; b) that the country counts 26 federate States, and; c) that, by now (June 30 th, 2013), none of these States has approved its forest law, this leads to a clear impunity to the ones that have illegally deforested in rural consolidated areas. The State s Act proposal follows the federal law when it comes to the compensation of the legal reserve : when a rural property doesn t have its legal reserve, the landowner can compensate it beyond the limits of his/her property, as long as it is in the same biome. Considering the extension of Brazilian biomes, this is a regression when compared to the previous norm. In fact, the 1965 s Forest Code allowed the compensation to be made within the same river basin, preferably the same micro-river basin. Last but not least, the State s proposal allows the Environmental Administration to permit the exploitation of endangered cerrado s vegetal species

4 THE COMPLEMENTARY ACT 140/2011 BRAZIL MODIFICATION OF THE CONSTITUTIONAL COMMON COMPETENCE FOR ENVIRONMENTAL PROTECTION ENVIRONMENTAL LICENSE AND CONTROL ACTIONS FROM GOVERNMENTS COMMON COMPETENCE TO SPECIFIC ATTRIBUTIONS. The Brazilian 1988 Constitution states that the common competence guides federate entities (the Union, Federate States, the Federal District and Municipalities) when it comes to environmental protection. This means that in the field of action, all of these entities are competent to require environmental licenses, as well as controlling and punishing for environmental degradation. Considering the extension of Brazilian territory as well as the complexity of environmental matters, the common competence is at least theoretically useful because it allows a reinforced surveillance on human activities that may cause environmental degradation. The common competence is, thus, an interesting instrument for the application of the prevention and the precaution principles, not forgetting of environmental responsibilities. Although this important characteristic, the common competence is also a subject of complicated implementation, for its complexity. There are, thus, in environmental licensing, many cases of bis in idem and exaggerated exigencies, when more than one of the federate entities act. That s why the constitutional rule of article 23 states that these entities must act in a cooperative way, in application of the federal constitutional pact. Well, this cooperation has never (or nearly ever) existed and, in the environmental field, the common competence measured by the environmental impact area of influence of the proposed enterprise and/or by the belonging of the environmental good concerned, is frequently a judicial case. In order to reinforce the need for the federate entities to cooperate, CONAMA Resolution 237/1997 establishes the unique counter for environmental licenses. This means, environmental licensing must be made by one of the federate instances only. The constitutionality of this rule was questioned by the fact that a CONAMA resolution could not go further than the common constitutional competence for licensing, established by article 23 of the Brazilian Constitution. Anyway, considering the Complementary Act 140/2011, it comes to adjust the balance among federate entities when it comes to cooperate in environmental protection. In this way, it states that there is a unique counter for licensing, and that this administrative act must rely on an extended cooperation among all the Union, the Federal District, federate States and Municipalities. To this end, the norm establishes that commissions must be created at the national and regional levels in order to determine specific competences for licensing. Federate States Environmental Councils will decide about transferring the licensing competences to Municipalities within each Brazilian State. Even though the delegation of licensing competences to the local administration seems interesting, it s important to stress that the local level doesn t usually have in Brazil the adequate infrastructure for acting in the environmental field. Besides, local administrations are more susceptible to the pressures of economic sectors over the use of natural resources, as well as concerning the alleviation or even the waiving of penalties for environmental degradation. Specifically about this point, we must note that, as the new Act rules, the authority responsible for licensing is the one responsible for controlling the activities. The law aims at an efficient functioning of the environmental administration machine, by

5 establishing that licensing must be made within delays (from 1 up to 365 days), and if it s not done in this time, a supplementary competence comes to force: the upper level environmental administration will license the activity. There s also a supplementary licensing competence for the cases where the Administration concerned cannot license by lack of means to doing so. Anyway, if the aims of this Complementary Act were connected to more cooperation and efficiency when it comes to environmental licensing and controlling, we must note that the regression promoted by the weakening of these administrative activities is clear. Moreover, the fact that national and regional commissions (still to be created) must decide about the transfer of the competences leads to a bizarre situation, verified by the blurring zone that concerns the mechanism for this transfer until there s a definite situation of environmental competences.

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