STF needs to define constitutionality of the new environmental licensing law, say sectors

Environmental organizations and representatives of the infrastructure sector tell Folha that the STF (Supreme Federal Court) needs to comment as soon as possible on the constitutional validity of sections of the new environmental licensing law.

The Supreme Court had scheduled the judgment of three ADIs (direct actions of unconstitutionality) and one ADC (declaratory action of constitutionality) on the matter for the last month, but the plenary removed the item from the agenda after the presentation of a new action. There is no set date for the trial.

Critics and supporters of the legislation, in force since February this year, say that the delay in concluding the trial in the Supreme Court brings legal uncertainty for enterprises and environmental agencies.

Ronei Glanzmann, CEO of MoveInfra, which brings together the companies EcoRodovias, Hidrovias do Brasil, Motiva, Rumo, Santos Brasil and Ultracargo, says that the sector's biggest concern is the possibility of changes or reversals in licenses issued under the new law.

"We have a law that is in force, investments are being made and some enterprises are carrying out licensing by adhesion and commitment, as the law provides, and other interventions without licensing, such as maintenance works, also provided for in the law. The big problem is if there is a change in this, what will the retroactive effects of these decisions be like", he states.

The Climate Observatory, an organization made up of more than a hundred environmental entities and which helped prepare one of the ADIs delivered to the Supreme Court in December last year, also calls for speed in the trial.

"This possible postponement is a scenario of general insecurity", says Fábio Ishisaki, the entity's public policy advisor. "It is harmful for business, because there is legal uncertainty about what will or will not be valid, and it creates uncertainty for the environmental management of projects itself, about the ways in which environmental agencies will apply [the law]."

Environmental licensing allows you to identify, reduce and compensate for the impacts of projects or activities, and Brazil has been discussing changes to legislation for decades.

The National Congress approved the new law in July last year, under the motto of modernizing rules and streamlining processes. President Luiz Inácio Lula da Silva (PT) vetoed excerpts of the text the following month, alleging possible environmental violations. In November, congressmen overturned most of the Executive's vetoes and reconstructed the originally approved version.

Some of the most controversial sections involve the LAC (License for Adhesion and Commitment), issued by the entrepreneurs themselves, and the LAE (Special Environmental License), which accelerates the processing of projects considered strategic by a government council. Furthermore, the text exempts agribusiness and restricts consultation to indigenous people and quilombolas.

Glanzmann, from MoveInfra, says that the legislation is the result of democratic debate and must have the characteristics preserved in the Brazilian Supreme Court.

"There are a lot of people on the outside looking to see if new projects are viable. There is an auction for highways and airports, a railway portfolio, and everyone is asking what the licensing rules will be, so they can do the math, see if it fits in the spreadsheet, and make a decision whether or not to support these projects", he states.

"The sector eagerly awaits the next trial window, the Supreme Court has a beautiful constitutional task to fulfill, which is to assess the text and define once and for all the constitutionality of the law", he says.

On the other hand, Ishisaki, from the Climate Observatory, states that there is a chance that the STF will block sections of the law. "Maintaining the law as it is causes harm to society, traditional peoples and communities, the environment and the climate."

"Once some parts are understood as unconstitutional, it would not be absurd for the environmental agency to revisit the licenses already issued to adapt to the new rules, based on the judgment", he says.

The CBIC (Brazilian Chamber of Construction Industry), author of the constitutionality declaratory action delivered to the court, says it has confidence in the validity of the law.

"I don't believe that a decision will come that annuls those who have complied with the legislation, it would be very bad. I think the Supreme Court is mature enough to understand the issue", says Marcos Saes, the entity's legal consultant.