The environmental licensing in the coastal and marine zones in Brazil as an instrument for the implementation of international legal regime

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1 United Nations Office of Legal Affairs Division for Ocean Affairs and the Law of the Sea UN-The Nippon Foundation of Japan Fellowship Programme The environmental licensing in the coastal and marine zones in Brazil as an instrument for the implementation of international legal regime Mariana Graciosa Pereira 23rd of april 2014

2 Overview 1. Introduction * Background and Context * Objectives and scope * Overview of the report 2. Part 1: The international legal regime * Chapter 1: International legal framework * Chapter 2: Legal regime of other countries 3. Part 2: The Brazilian case * Chapter 1: The current situation * Chapter 2: Way forward

3 Introduction Background and Context Overview of Maritime Transport and Port Sector 80% of world trade by volume is carried by the sea: ports fulfil a critical function as links of global supply chains and constitute engines of economic growth; 9.2 billion of tons of goods were loaded in ports worldwide in 2012; Developing countries contribute with larger shares to international seaborne trade: 60 per cent of global goods loaded and 58 per cent of goods unloaded (United Nations Conference on Trade and Development, 2013).

4 Introduction Background and Context Overview of Maritime Transport and Port Sector Brazil: coastline of 8.5 thousand kilometres, 35 public ports and over a hundred private terminals (vast majority located on the coast). A B Figure 1: Brazilian Ports. A: Public Ports; B: Private Terminals. Source: Secretariat of Ports of Brazil.

5 Introduction Background and Context Overview of Maritime Transport and Port Sector In Brazil, ports are responsible for 90% of the exports of the country. In the last 10 years, the amount of cargo that passed through Brazilian ports increased 81%. Figure 2: Amount of cargo that passed through Brazilian ports from 1990 to Source: National Agency for Waterway Transportation.

6 Introduction Background and Context Overview of Maritime Transport and Port Sector The significant increase in the seaborne trade and Port operations reflects the investments made during the period In Brazil, improvements on Ports were made, but today, the situation is next or above the operational capacity limit. Brazil ranks 65th among 160 countries on the Logistics Performance Index of the World Bank. Among the economic group BRICS (Brazil, Russia, India, China and South Africa), Brazil is below almost all countries, except from Russia.

7 Introduction Background and Context Overview of Maritime Transport and Port Sector Brazilian Government Response: Energy and Logistics Investment Program launched in 2012; U.S.$ 24.3 billion will be invested in the modernization of the Brazilian port sector by the year 2017; Law 12,815: The Port Law (enacted in 2013) for: expansion, modernization and optimization of infrastructure and superstructure of ports; encourage private sector participation and ensuring broad access to ports; National Dredging Plan II.

8 Introduction Background and Context The environmental impacts of Ports and dredging over coastal and marine zones New investments = potential environmental impacts; Examples of environmental impacts of Ports and dredging: 1. Loss or impacts over important coastal and marine ecosystems: Source: Google Earth; Brazilian Institute of the Environment and Renewable Natural Resources

9 Introduction Background and Context The environmental impacts of Ports and dredging over coastal and marine zones 2. Impacts over threatened and migratory species 3. Physical modification of coastal features Source: Projeto TAMAR; Brazilian Institute of the Environment and Renewable Natural Resources

10 Introduction Background and Context The environmental impacts of Ports and dredging over coastal and marine zones 4. Pollution (release of contaminated sediments, pollution caused by oil and other substances ) Source: Brazilian Institute of the Environment and Renewable Natural Resources; aen.pr.gov.br/. 5. Impacts over social activities (i.e.: fisheries, tourism )

11 Introduction Background and Context Environmental Licensing as a tool for pollution prevention and control An environmental license is an administrative document issued by the competent public authority, by which the operator of a productive activity or an infrastructure work is given the permit to carry out the actions for which the license is demanded, given that a number of operating conditions are fulfilled, certain use limitations are respected, and certain measures are implemented for containment, minimization and avoidance of those environmental impacts the activity or work may cause (The World Bank, 2011).

12 Introduction Background and Context Environmental Licensing as a tool for pollution prevention and control Main objectives of Environmental Licensing: 1. avoiding and prohibiting pollution of the environment by requiring environmentally sound operation and management; 2. ensuring that control measures are paid for by the plant operator/enterprise, in accordance with the Polluter Pays Principle; 3. ensuring that the requirements set on polluters are based on impartial assessments of environmental impacts and available technical and economic means. (Organisation for Economic Cooperation and Development, 1999).

13 Introduction Background and Context Environmental Licensing as a tool for pollution prevention and control Important tools for the environmental Licensing: Environmental Impact Assessment (EIA) Process of evaluating the likely environmental impacts of a proposed project or development, taking into account inter-related socio-economic, cultural and human-health impacts, both beneficial and adverse (Convention on Biological Diversity (CBD), 2012) Environmental Management Plans Plan that provides detailed information on how measures to avoid, mitigate or compensate expected impacts are to be implemented, managed and monitored. During the implementation of the project, it can be reviewed and improved with the results of monitoring (CBD, 2006)

14 Introduction Background and Context Environmental Licensing as a tool for pollution prevention and control Brazil: Environmental Licensing is required for installation, expansion and operation of projects or activities that use environmental resources, considered effectively or potentially polluters or those who can cause environmental degradation. Which means that Ports and dredging are subjecto to Environmental Licensing

15 * Federal Environmental Licensing is conducted by The Brazilian Institute of Environment and Renewable Natural Resources - IBAMA Introduction Scope and Objectives Objective: The objective of the thesis is to identify solutions to improve the federal* environmental licensing procedures for ports and dredging in Brazil based on international best practices. Port: the place where facilities were built and equipped to meet the needs of shipping, handling and storage of goods and passenger traffic to or by water transport. It also includes the infrastructure for protection and access to the port (adapted from the Law 12,815/2013).

16 Introduction Scope and Objectives Scope Review of the international legal regime concerning aspects regarding environmental impact assessment and marine pollution that could be applied to the environmental licencing of ports and dredging; Study the regulatory framework of other countries to identify best practices that could serve as example for Brazil;

17 Introduction Scope and Objectives Scope Brazilian federal environmental licensing procedures for ports and dredging will be compared to international regulations and other countries requirements; The Brazilian technical and legal aspects that could be improved will be highlighted and a proposal will be put forward for the improvement of these procedures in Brazil, in short, medium and long term. The overview of the report will present the structure of the thesis in order to guide the reader through the content of each part.

18 Part 1 The international legal regime Chapter 1: International legal framework Provisions within instruments (such as conventions, treaties, programmes and recommendations) from the Organizations of the United Nations System: Section A: Global Paragraph 1: binding instruments Paragraph 2: non-binding instruments Section B: Regional Paragraph 1: binding instruments Paragraph 2: non-binding instruments

19 Part 1 The international legal regime Chapter 1: International legal framework Section A: Global Paragraph 1: Binding instruments Paragraph 2: Non binding instruments United Nations Convention on the Law of the Sea (UNCLOS) Convention of Biological Diversity (CBD)

20 Part 1 The international legal regime Chapter 1: International legal framework Section A: Global Paragraph 1: Binding instruments Paragraph 2: Non-binding instruments Convention on Wetlands of International Importance Especially as Waterfowl Habitat International Convention for the Prevention of Pollution from Ships (MARPOL Annex V) International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC) and Hazardous and Noxious Substances Protocol

21 Part 1 The international legal regime Chapter 1: International legal framework Section A: Global Paragraph 1: Binding instruments Paragraph 2: Non-binding instruments Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and the 1996 London Protocol Convention on the Conservation of Migratory Species of Wild Animals Stockholm Convention on Persistent Organic Pollutants

22 Part 1 The international legal regime Chapter 1: International legal framework Section A: Global Paragraph 1: Binding instruments Paragraph 2: Non-binding instruments United Nations General Assembly Resolutions Agenda 21 (UNCED 1992)

23 Part 1 The international legal regime Chapter 1: International legal framework Section A: Global Paragraph 1: Binding instruments Paragraph 2: Non-binding instruments World Summit on Sustainable Development 2002 The Future we want (Rio + 20)

24 Part 1 The international legal regime Chapter 1: International legal framework Section A: Global Paragraph 1: Binding instruments Paragraph 2: Non-binding instruments Washington Declaration on Protection of the Marine Environment from Land-Based Activities Global Programme of Action for the Protection of the Marine Environment From Land-Based Activities International Finance Corporation Environmental, Health and Safety Guidelines

25 Part 1 The international legal regime Chapter 1: International legal framework Section B: Regional Paragraph1: Binding instruments Paragraph 2: Non-binding instruments Regional Seas Programme Convention on the Conservation of Migratory Species of Wild Animals

26 Part 1 The international legal regime Chapter 2: Legal regime of other countries Provisions within the legal framework of other countries, focusing on Environmental Impact Assessment and Environmental Management Plans of Ports and dredging.

27 Part 1 The international legal regime Chapter 2: Legal regime of other countries Section A: States procedures prior to the approval, installation and operation of the project or activity Paragraph 1: Procedures in North America Paragraph 2: Procedures in other countries Section B: States procedures during installation and operation of the project or activity Paragraph 1: Procedures in North America Paragraph 2: Procedures in other countries

28 Chapter 1: Current situation Part 2 The Brazilian case The requirements of the Brazilian Federal Environmental Licensing of Ports and dredging will be presented and compared to the instruments and regulation exposed in Part 1. Section A: Brazilian Federal Environmental Licensing of Ports and Dredging Paragraph 1: Requirements prior to the approval, installation and operation of the project or activity Paragraph 2: Requirements during installation and operation of the project or activity

29 Chapter 1: Current situation Part 2 The Brazilian case Section B: Comparative Analysis Paragraph 1: Requirements prior to the approval, installation and operation of the project or activity Paragraph 2: Requirements during installation and operation of the project or activity

30 Chapter 2: Way Forward Part 2 The Brazilian case Based on the comparative analysis in Chapter 1, this chapter will address the opportunities to improve the federal environment licensing of ports and dredging. Section A: Opportunities to improve Paragraph 1: Requirements prior to the approval, installation and operation of the project or activity Paragraph 2: Requirements during installation and operation of the project or activity

31 Chapter 2: Way Forward Part 2 The Brazilian case Section B: How to apply the improvements This section will address the practical way to apply the improvements, either in short, medium and long term. Paragraph 1: Short term Paragraph 2: Medium and Long term

32 Chapter 2: Way Forward Part 2 The Brazilian case Section B: How to apply the improvements Paragraph 1: Short term Ex.: Brazilian procedures prior to the approval of the project Project is submitted to IBAMA IBAMA establishes Term of Reference for the EIA and the Environmental Impact Statement (EIS) EIA/EIS are submitted to IBAMA Public Hearing Analysis of EIA/EIS and Decision Making Licen se

33 Part 2 The Brazilian case Chapter 2: Way Forward Section B: How to apply the improvements Paragraph 1: Short term Ex.: Brazilian procedures prior to the approval of the project Project is submitted to IBAMA IBAMA establishes Term of Reference for the EIA and the Environmental Impact Statement (EIS) New requirements for EIA EIS is submitted to IBAMA Public Hearing Analysis of EIS and Decision Making Priorities for decision making Licen se

34 Chapter 2: Way Forward Part 2 The Brazilian case Section B: How to apply the improvements Paragraph 2: Medium and Long term Enforcement of existing regulation Regulatory need for existing laws Aspects that need new legal instruments Act from the President of IBAMA Decision of the Ministry of Environment Resolution of the National Environmental Council Presidential Decree New law (Congress)

35 THANK YOU! Mariana Graciosa Pereira Environmental analyst of the Brazilian Institute of Environment and Renewable Natural Resources IBAMA