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Página 1 De 12 Latin Lawyer 22/04/2016 Latin Lawyer Página 1 de 12 Latin Lawyer Reference Environment 2016 Published on Wednesday, 20 April 2016 Brazil Miriam Mazza BMA – Barbosa, Müssnich, Aragão 1. Are there any environmental rights or protections included in your constitution? If so, please describe the provisions and their implications. The Brazilian Constitution sets out the general principles upon which the country’s entire environmental protection legal and regulatory systems are based. The Federal Constitution of 1988 assimilated the width and breadth of legal concepts embedded in the United Nations Convention on the Human Environment as enacted in Stockholm back in June 1972. The Stockholm Convention and its Declaration, along with the provisions on the matter adopted by the Portuguese, Greek and Spanish Constitutions, have served as the basis and inspiration for the creation of the Brazilian environmental protection system. The Constitution sets out the fundamental principles regarding (i) the natural resources of the biosphere (air, soil, fauna and flora), (ii) the relationship of men with these elements aiming at their collective protection and preservation, (iii) provides for the broad participation of various sectors of society in the protection of their interests, (iv) defines the role of the public prosecutor’s office in the enforcement of such provisions and (v) establishes sanctions against violations by individuals and legal entities on both criminal and administrative levels. According to article 225 of the Constitution, an ecologically balanced environment is a collective and diffuse right. The concepts regarding environmental protection adopted by the Brazilian Federal Constitution also provide for pollution control and management tools such as environmental impact assessments and environmentally protected areas which were already very well developed and modern by the time of its enacting back in 1988. The Constitution also gave a constitutional reputation to environmental permitting, which instruments were initially delineated by the law which created the National Environmental Policy (Federal Law 6,938 of 1981). Next Back to top Back to question list 2. What is the environmental statutory and regulatory framework? Are environmental requirements imposed by sector or on a general basis? Please identify the primary environmental statutes and regulations and the agencies with responsibility for environmental regulation and enforcement. After the establishment, in Stockholm, of the foundations of international environmental law, the Rio Declaration of 1992 launched the fundamental principles of the environmental legal protection, namely, the principles of prevention, precaution, repair, information and the participation. By its turn, Brazilian ordinary laws came to provide a more operational structure to the local legal system, strengthening environmental management processes and procedures. http://latinlawyer.com/reference/topics/51/jurisdictions/6/brazil/ 22/04/2016 Latin Lawyer Página 2 de 12 Apart from those already mentioned, the Brazilian environmental legal system is composed of the following main statutes: • Federal Law 6,938/1981, which creates the National Environmental Policy and establishes the Environmental Permitting Process and the Civil Liability system for environmental damages; • Federal Law 9,433/1997, the National Policy on Water Resources, which regulates water use; • Federal Law 9,605/1998, which establishes criminal sanctions and provides for administrative offences against the environment. • Federal Law 9,966/2000 on the prevention and control of pollution caused by oil and other hazardous substances; • Federal Law 9,985/2000, which establishes the National System for Environmental Protected Areas, the main code on biodiversity preservation enforcement tools; • Federal Law 11,105/2005 regulates bio safety of genetically modified organisms (GMOs); • Federal Law 12,187/2009 represents Brazil’s commitment to addressing greenhouse gas emissions and states the National Program of Climate Change; • Federal Law 12,305/2010 establishes the National Policy for Solid Waste, being the main legal framework regulating obligations on the generation, transport, management and destination of solid waste; • Complementary Federal Law 140/2011 disciplines the enforcement rights of authorities at all levels of administration; • Federal Law 12,651/2012, the Brazilian Forestry Code, which regulates the protection of Legal Forestry Reserves and the Permanent Protected Areas; • Decree 8,124/2013, the National Contingency Program for oil pollution in Brazilian waters, and • Federal Law 13,123/2013, which provides for access to genetic resources, the protection and access to associated traditional knowledge and the sharing of benefits for conservation and sustainable use of country’s biodiversity. The main environmental agencies at federal level are the Brazilian Institute for Environment and Renewable Resources (IBAMA), in charge of enforcing environmental statutes and regulations and performing the environmental permitting of activities located in strategic areas and those with regional impacts, besides nuclear-related activities; Chico Mendes Institute for Preservation of the Environment and Biodiversity (ICMBio), which is in charge of management and enforcement of environmental policies in federal protected areas; the National Environmental Council (CONAMA), which creates the directives aimed at nationwide application; Genetic Heritage Management National Council (CGEN) collegiate body of deliberative, legislative, advisory and appellate character, responsible for coordinating the development and implementation of policies for the management of access to genetic resources and associated traditional knowledge and benefit sharing, formed by local representative bodies and federal management entities. At state levels, the São Paulo Environmental Agency (CETESB) is the most structured and equipped body and plays a significant role in establishing a model for other state environmental agencies throughout the country. Other agencies monitor and follow CETESB’s guidance on environmental protection enforcement and regulatory activity. Laws and regulations bills concerning environmental permitting are under analysis within Congress and State Legislative Houses, aiming at clearer standards for environmental assessments required under the process. Previous Next Back to top Back to question list 3. Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject? http://latinlawyer.com/reference/topics/51/jurisdictions/6/brazil/ 22/04/2016 Latin Lawyer Página 3 de 12 Brazil has significantly increased its role as an international player while creating its own environmental laws and regulations as of the Stockholm Convention, in 1972, and had its notorious point when hosting the United Nations Conference on Environment and Development, held in 1992, in Rio de Janeiro. The Rio Declaration on Environment and Development and its Agenda 21 have been a worldwide recognised instrument to international cooperation on environment, which was reaffirmed by the Johannesburg Declaration on Sustainable Development and into the commitment signed during the Rio+20 Conference on Sustainable Development: “The Future We Want”. The Federal Constitution enacted in 1988 also represented a significant turning point in the Brazilian enforcement actions over environment, indigenous and tribal peoples’ rights. ILO Convention No. 169, ratified in Brazil through Decree 5,051/2004, ensures the exclusive right of enjoyment over ancestral lands and natural resources to the indigenous community that have traditionally occupied it before. Brazil has also signed and ratified important treaties and conventions such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Ramsar Convention on Wetlands of International Importance; United Nations Convention on the Law of the Sea (UNCLOS), Vienna Convention for the Protection of the Ozone Layer and The Montreal Protocol on Substances that Deplete the Ozone Layer; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and the Stockholm Convention on Persistent Organic Pollutants. During the 21st Conference of the Parties (COP-21) of the United Nations Framework Convention on Climate Change, Brazil’s played an important role in articulating consensus among the signatories of the Paris Agreement in the adoption of measures to address climate change. Previous Next Back to top Back to question list 4. What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to commencing construction of a facility? What is the average timeline for a facility to obtain environmental permits? National Environmental Policy stated by Federal Law 6.938/1981 requires the previous environmental permit for construction, installation, expansion and operation of any potentially pollutant activity or any kind of use of natural resources that may cause environmental damage. Pursuant to CONAMA Resolution 237/97, ordinarily there are three consecutive environmental permits, which should be requested: • Preliminary Permit (LP) – granted at the preliminary stages of the enterprise or activity, approving
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