Brazil’s Congress is likely to approve what experts describe as the country’s most significant environmental setback since 1988 when the Constitution was enacted. Bill 2159/2021, which changes several rules of the environmental licensing framework, was approved by the Senate on May 21, six months before Brazil hosts the COP30 climate summit in the Amazonian city of Belém. The bill was heavily criticized by environmental organizations and the Ministry of Environment and Climate Change — and celebrated by the powerful conservative forces of the Brazilian Congress. Experts argued that many of the bill’s provisions are unconstitutional.

Nevertheless, in the following days, it should easily pass its final vote in the Chamber of Deputies, controlled by the agribusiness, mining and energy caucus.

“Brazil, as president of the COP, cannot demonstrate to the whole world that it is going backwards in terms of caring for the environment by attacking its main environmental law,” representative Nilto Tatto, the environmental caucus coordinator in the Chamber of Deputies, told Mongabay. “We will long remember the day when the main damage prevention tool of the National Environmental Policy was completely weakened,” Suely Araújo, public policy coordinator at the civil society coalition Climate Observatory, stated on the organization’s website.

According to the current legislation, an environmental license is mandatory for all enterprises that use natural resources and may cause damage to the environment or local communities. The entrepreneur has to conduct studies to assess the project’s eventual impacts and propose mitigation measures. It is up to environmental experts from the federal, state or municipal levels to approve such studies and monitor the enterprises along the years, to ensure these rules are followed — a process often criticized for being too slow.

“It’s the environmental licensing that prevents us from having disasters,” Wallace Lopes, deputy director of ASCEMA, the association of federal environmental specialists, told Mongabay. “There is no other prevention tool. Inspection, punishment — all of this is for after the crime has already happened.”

The bill, however, exempts from these demands all small or medium-sized undertakings, which would undergo a much simpler process called License by Adhesion and Commitment (LAC). Through this license, entrepreneurs would fill out an online form describing how their project isn’t breaking any environmental rules, and they would automatically be ready to move forward — a form of self-licensing. Around 80% of the projects that apply for licensing in Brazil today would fall under LAC, according to Ana Carolina Crisostomo, WWF-Brasil’s conservation expert. “That’s why we say it’s the end of environmental licensing,” she told Mongabay in a phone interview.

“The person presents the information, and there is no analysis of these documents,” Lopes said. “The name ‘license’ doesn’t even fit. If the person does everything themselves, why should the state have to authorize them or not?”

An example of a project that would fall under self-licensing is the Brumadinho dam, built by the mining company Vale in Minas Gerais state. In January 2019, the structure collapsed, releasing more than 12 million cubic meters (423.8 million cubic feet) of mine tailings and killing more than 270 people. The Paraopeba River, flooded with all the toxic mud, remains contaminated six years after the disaster.

“With the full license in force, we have already seen an accident like this because there was no inspection, no compliance,” Crisostomo said. “Now imagine if this dam is approved through a simplified process. Half of the preventive and remedial actions would not have been planned and could not have been implemented.”

The voting happened the same week the Brazilian environmental agency, IBAMA, bowed to political pressures, including from President Luiz Inácio Lula da Silva, and approved a key step that could allow offshore oil drilling that threatens the mouth of the Amazon River. The state oil company Petrobras is now one step away from getting the license to explore an area with a high risk of oil spills, according to environmental agents. In the case of an accident, oil could reach eight countries, the Amazon’s great coral reef and the world’s largest mangrove belt.

One of the legal devices of the new law would precisely benefit projects deemed “strategic” by the federal administration, such as the exploration of the Amazon coast; the national oil agency will offer another 47 blocks on the same area in a public bid on June 17. The decision about what is or isn’t strategic would be up to a political council.

The measure was proposed at the last minute by the Senate’s president, Davi Alcolumbre, a staunch defender of Petrobras’ controversial project in its home state, Amapá. It creates a Special Environmental License for strategic projects, which could be approved in a single step within one year.

“It’s quite clear that this amendment was custom-made because of the controversy surrounding the well in the Amazon River Mouth Basin,” said ASCEMA’s Lopes. He added that many kinds of projects can be considered strategic, including hydroelectric plants, large roads and mining complexes.

Lula has a long-held appreciation for large infrastructure projects. The most notorious example is the Belo Monte hydroelectric power plant, initiated in Lula’s second term (2007-10) and concluded by his political ally Dilma Rousseff (2011-16), which altered the course of the Xingu River, displaced tens of thousands of people and caused the deaths of more than 85,000 fish.

“There is a very old vision of development within the federal government, and the president expresses this a lot,” Crisostomo said.

The special license may also apply to projects like Ferrogrão, a railway connecting Brazil’s granary states to the Tapajós River, which could lead to the deforestation of 2,000 square kilometers (772 square miles) according to the Climate Policy Initiative.

The same applies to the paving of BR-319, a road connecting the capitals of Rondônia and Amazonas states, Porto Velho and Manaus. The project could also benefit from another innovation from the bill, which facilitates the licensing of improvement works to existing projects.

“According to the bill, the paving of this road would not require a license,” Lopes said. “But the environmental impact is completely different when you pave such a road.”

The Brazilian government opened the road in the 1970s, but there is an unpaved 400-km (250-mi) stretch that becomes undrivable for most of the year. Studies show that putting asphalt on his section would result in a fourfold increase in deforestation rates around it, which lies in one of the Amazon’s most preserved areas. Forty conservation areas and 50 Indigenous territories would be affected, including isolated Indigenous groups.

“If the law created a self-license for small and medium-sized businesses and a special license for large businesses, then there’s nothing left,” Lopes said.

Ignoring traditional communities

The bill also exempts entrepreneurs from considering their projects’ impact on hundreds of Indigenous and Quilombola communities — inhabited by descendants of enslaved Black people — that haven’t been fully titled by the federal administration.

According to Instituto Socioambiental (ISA), a Brazilian NGO fighting for traditional people, 259 Indigenous lands would be excluded from the impact studies, 32.6% of all territories. When it comes to Quilombola communities, 1,553 of them would be ignored (80%). “They will be considered nonexistent for the purposes of environmental licensing, impact assessment and the requirement for conditions to prevent, mitigate or compensate for socioenvironmental impacts,” ISA stated in a technical note. According to ISA, Brazil’s conservation units would also be ignored in the licensing process unless the venture’s facilities are located directly inside them.

The bill also exempts agriculture and cattle ranching from environmental licensing. Ranchers will still need authorization to deforest but won’t have to present studies showing how much water they will collect from the streams, where they will dispose of their waste or how much wood they will take from that area. “We have strong indications that deforestation will increase a lot,” Crisostomo said.

In a public statement, Brazil’s environmental ministry said the bill “represents a significant dismantling of the existing rules on the subject and poses a risk to the country’s environmental and social security,” besides being “silent on the climate crisis.” On May 27, after being harassed by congressmen in a Senate commission, Marina Silva, the Environment and Climate Change minister, said that “the environmental licensing is an achievement of Brazilian society” and “only the Brazilian people can prevent this dismantling that is being proposed.”

The Climate Observatory stated in a public letter that “the approval of this bill will seriously compromise the country’s environmental credibility” and “could prevent Brazil from meeting its emissions reduction targets under the Paris Agreement.”

Brazil’s leading federal health research center, Fiocruz, also published a technical note stating the bill “relativizes the responsibility of entrepreneurs and reduces the capacity of the State to ensure the protection of life, collective health and ecosystems.”

Supporters of the bill said it will bring legal security and reduce bureaucracy for Brazilian entrepreneurs. During debates, many senators endorsed the proposal, saying it won’t hurt nature since it’s not changing environmental protection laws, only speeding up licenses, despite warnings from experts. “There are things that can be licensed much more quickly; we don’t have the people to analyze everything that is being proposed in a notarial manner,” Senator Tereza Cristina, the project’s rapporteur and a leader of the agribusiness caucus, told CNN Brazil. Cristina acted as the agriculture minister of former President Jair Bolsonaro (2019-22), whose far-right policies looked to reduce environmental protections.

However, experts say the law may increase legal uncertainty since it will be up to each state or municipality to determine a project’s impacts and the kind of licensing it must follow. “How will we have legal certainty if we have a proliferation of rules instead of standardization? It will generate a lot of judicialization,” WWF’s Crisostomo said.

Lopes, from ASCEMA, said the real solution to speed up environmental licensing is to hire more staff for environmental bodies. “The reality is that there are no people to do the work. And that’s what the bill doesn’t tackle.”

Representative Tatto and NGOs admit the chances of reverting the bill in the Deputy’s Chamber are low. President Lula may veto some of the articles if the proposal is approved, but Congress will likely overturn them. The last resource would be to contest the law in the Supreme Court. “We’ll go as far as judicializing it because it’s a flagrant affront to the Constitution itself,” Tatto said.

Banner Image: Under the new rules, the Brumadinho mining dam, which collapsed in 2019, killing 272 people, would be licensed under a simplified process. Image © Fernanda Ligabue/Greenpeace.

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