The concurrent jurisdiction for the edition of laws (article 24 of the Brazilian Federal Constitution) implies that the federal government shall establish general rules, while the states, federal district and the municipalities shall detail the federal laws and adapt the general rules to regional characteristics. It is important to stress that the possibility of supplementing the federal laws does not entitle the states or the municipalities to disregard the federal laws or edit laws that conflict with those of the federal government. Therefore, for example, if a federal law sets certain restrictions on a determined activity, state law cannot waive these restrictions. It may, on the other hand, create more restrictive rules, as long as they are not in conflict with the federal law. If the matter addressed in state law has not yet been established in federal law, the state will have full jurisdiction for the issuance of the law. However, once a federal law on the matter is edited, the state law will lose its applicability in all that conflicts with the federal law.
With regard to the protection of the environment, the jurisdiction of the federal government, the states, the Federal District and the municipalities is considered to be common, which means that all are entitled to undertake measures for protection of the environment and that the action of one does not exclude the jurisdiction of the other.
With regard to the Brazilian environmental liability system, paragraph 3 of the above-mentioned article 225 determines that activities considered as harmful to the environment will subject the individual or the legal entity to criminal and administrative sanctions, notwithstanding the obligation to repair the damage caused.
Considering the above, one can conclude that the Brazilian environmental liability system is administered through administrative liability, civil liability and criminal liability, provided that these are independent and can be applied cumulatively.
Under Brazilian law, agriculture and rural enterprises are classified as activities potentially harmful to the environment, subject to environmental licensing. Complementary Law No. 140/2011 fulfils the constitutional requirement and regulates the joint legal jurisdiction of the federal, state, federal district and municipalities to protect the environment, determining the jurisdiction of each one of them to grant environmental licences.
Based on the applicable legislation, environmental agencies are competent to grant environmental licences to agribusinesses, as follows.
The Federal Environmental Authority is competent to license enterprises:
- located in the border zone;
- located on the territorial sea and in areas that comprise the sea border zone; indigenous territories or federal conservation areas as defined by law;
- located, developed in, or whose environmental impact extends to, two or more states; and
- whose direct impacts surpass the territorial limits of the country.
State environmental agencies are competent to:
- license all agribusinesses subject to environmental licences, except those whose jurisdiction is determined by law to be of the Federal Environmental Authority or local environmental authority;
- license businesses located or developed on state conservation sites;
- license businesses located or developed on forests and other environmental protected areas; and
- authorise the suppression of native vegetation or vegetation related to the state environmental licences.
Municipalities are competent to:
- license businesses that cause local environmental impacts, as defined by the State Environmental Department;
- license businesses located or developed on local conservation areas; and
- authorise the suppression of native vegetation of local conservation areas, or vegetation related to the local environmental licences.
The main guidelines for the implementation of environmental licensing are provided in Federal Law No. 6,938/81, Complementary Law No. 140/2011, which discusses the municipal, state and federal jurisdiction for licensing, taking as a basis the location of the project, as well as CONAMA Resolutions No. 001/86 and No. 237/97.
Environmental licences are usually composed of a preliminary licence, in which the environmental feasibility of the project and identification of all environmental impacts to be caused by the business is analysed, and relevant actions to mitigate, compensate or neutralise the impacts. After that, the environmental authority approves the project (together with other relevant authorities) for the installation of the project and operational test (installation licence); after the conclusion of all the steps and tests provided for in the installation licence, the relevant authority inspects the area and grants the relevant environmental operation licence.
Environmental licences are usually issued with a number of technical requirements that must be complied with in order to assure the maintenance of their validity. Non-compliance with the mentioned technical requirements may lead to the suspension of the licence and imposition of administrative penalties, as well as obligation to recover and compensate environmental damages.
State legislation can provide for other environmental licensing rulings, which can be more restrictive than the federal law, but never more permissive. In some cases, environmental law provides for the possibility for a company to regularise its business and obtain a corrective environmental licence.
In accordance with federal law, agricultural and rural enterprises with an operational area equal to or larger than 1,000 hectares are, as part of the preliminary licensing procedure, required to prepare an environmental impact study and environmental impact report. These aim to identify environmental impacts and provide several procedures for mitigating, compensating or neutralising such impacts during the installation phase and throughout the development of the business.
Another important point is that an environmental licence is not analysed by title, but it is granted to a rural enterprise comprising several titles of contiguous areas or a cluster of areas not contiguous, but integrated among them.
Suppression of vegetation, and water permits for irrigation purposes or for any other purpose related to the business, shall be part of the environmental licensing procedure.
Depending on the size of the business and relevant impacts, a company must pay an environmental compensation fee, equivalent to a minimum of 0.5 per cent of the total investment in the project, to be used by the state environmental authorities in the maintenance of state conservation areas or to fund other social-environmental state projects.
The obligation to preserve part of the natural cover of rural properties was first established in 1934 and has been significantly changed over the years. Currently, the matter is addressed at federal level by Federal Law No. 12,651/2012 (the Brazilian Forestry Code). Based on the applicable legislation, the legal reserve area of rural properties located in the majority of the Brazilian territory is equivalent to 20 per cent of the area of a given property; in the Amazon forest it is equivalent to 80 per cent of the property. Further to the preservation of this native vegetation, the legal reserve area shall also be registered in the rural environmental registry.
Environmental law provides that some specific areas shall be protected, aiming at preserving natural resources, ecological chains and biodiversity, as well as protecting native flora and fauna (areas adjacent to rivers or natural or artificial reservoirs). As a rule, referred environmental protected areas shall not be used for any purpose except for specific uses considered of low impact and according to a special authorisation granted by the competent environmental agency.
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