THE EFFECTIVENESS OF THE PRECAUTIONARY PRINCIPLE IN BRAZIL: THE CASE OF MARINE PROTECTED AREAS AND THREATENED SPECIES
Project Solange TELES DA Professor of Law, coordinator SILVA Mackenzie Presbyterian University Research Carolina DUTRA Doctoral candidate, team Mackenzie Presbyterian University Fernanda Doctoral candidate, SALGUEIRO Mackenzie Presbyterian BORGES University Marcia FAJARDO Doctoral candidate, CAVALCANTI Paris I University- Mackenzie University Mauricio DUARTE Doctoral candidate, DOS SANTOS Mackenzie Presbyterian University Patrícia BORBA DE Doctoral candidate SOUZA Mackenzie Presbyterian University
Research Project “Brazilian Strategy for the Sustainable Management of Living and Non-Living Marine Resources”, Coordination for the Improvement of Higher Education Personnel (CAPES/ Brazil). Research Project “Law and Sustainable Development: biodiversity management and protection” (MackPesquisa Institute/Brazil) Researcher on Productivity at National Council of Technological and Scientific Development (CNPq/Brazil).
1 SUMMARY OF THE EVALUATION
The precautionary principle in the implementation of Marine Protected Areas and the protection of marine species that are threatened with extinction1 and at risk The absence of full scientific certainty about marine species that are threatened with extinction and at risk in a given place, and about their interaction with the marine ecosystem, must not be invoked as a reason to postpone the adoption of measures able to avoid or attenuate the threat of significant reduction or loss of marine biodiversity.2 In other words, the presence of doubts about the fact that certain species are actually threatened, “evidence that they may be (distribution limited to threatened ecosystems, lower populations, apparent decline, etc.) justify actions to ensure their protection and that of their habitat.”3 In this sense, the creation of marine protected areas (MPAs)4 is one of the instruments that can safeguard the integrity of ecosystems and of marine biodiversity, while helping to protect and restore threatened marine species, applying the precautionary principle.
Complementing an ecosystem’s protection and management strategy and the application of the precautionary principle, threatened species are also protected by being identified and included in lists of threatened species and through the adoption of strategies to alter that situation, such as action plans for the conservation of marine species threatened with extinction. While it is true that “threatened species” covers three IUCN categories for extinct and threatened species 5 (critically endangered, endangered and vulnerable), thus indicating a real, threatening situation, we must also consider marine species that are at risk, i.e., in situations of fragility and in which there is a potential for loss of diversity,6 including species that are overfished.7
The objective of this study is to assess the effectiveness of the precautionary principle in the implementation (creation and management) of marine protected areas in Brazil, and its correlation with the protection of threatened species, in other words, assess the effectiveness of that principle applied to the two basic strategies used to conserve biodiversity: protect and manage ecosystems and protect and manage species. These two strategies, of course, are not disconnected but interrelated. We shall therefore consider federal marine protected areas or conservation units8 and species of marine fauna that are threatened or at risk.
1 This paper adopts the term “threatened species” covering the three IUCN categories for extinct and threatened species: (a) critically endangered, (b) endangered and (c) vulnerable. Under Brazilian law, these three categories are considered to be threatened, in addition to those extinct in the wild (Portaria MMA n. 43/2014). 2 Actually, “There is a need to accelerate the discovery of marine biodiversity, since much of it may be lost without even being known”. M. J. Costello et al, ‘A Census of Marine Biodiversity Knowledge, Resources, and Future Challenges’ (2010) 5 PLos ONE 1, p. 1. 3 E. Trajano, ‘Políticas de conservação e critérios ambientais: princípios, conceitos e protocolos’ (2010) 24 Estudos Avançados 135. 4 The term “marine protected area” is defined as “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment”. G. Kelleher and R. Kenchington, Guidelines for Establishing Marine Protected Areas. A Marine Conservation and Development Report (IUCN, Gland, Switzerland, 1992) p. 13. 5 IUCN, Guidelines for Application of IUCN Red List Criteria at Regional and National Levels: version 4.0 (Gland, Switzerland and Cambridge, UK, IUCN, 2010) 6 Trajano ibid. 7 Overfished species are those whose catch levels are so high that they reduce their biomass and their spawning and future catch potential to lower than acceptable levels. 8 The term "protected area" in this work will be used as a synonym for “conservation units”, i.e. “territorial spaces and their environmental resources including waters under Brazilian jurisdiction, with relevant natural characteristics, legally instituted by the Government, with objectives of conservation and defined boundaries, under a special administrative regime, to which are applied adequate guarantees of protection" art. 2-I of Federal Law 9985, which instituted the National
2
The National System of Nature Conservation Units (SNUC, established by Law 9985/2000) created two categories of protected areas or conservation units: those called “full-protection” units, which allow no direct use at all of natural resources, and those defined as “sustainable- use” units, in which the rational use of environmental resources is possible, up to certain established limits. Both categories can be applied to land, marine and coastal areas, and one objective of the SNUC Law is to protect threatened species on regional and national scales (art. 4-II, Law 9985/2000). The preparation and publication of lists of threatened species is an indicator for decision making and should guide environmental agencies as they license potentially or effectively polluting activities. This list, for fish and aquatic invertebrates, covers both threatened and commercially overfished species. Our reflections here, therefore, begin by questioning the effectiveness of the precautionary principle applied to the conservation of marine biodiversity: habitats, ecosystems and marine biomes, on the one hand and, on the other, threatened marine species.9
To what extent has the precautionary principle been applied in legal instruments? In order to analyze how the precautionary principle has been used to implement MPAs and protect threatened marine species, we must first clarify that there are different conceptions of precaution, regarding the terminology and also its degree of application or scope.
Several expressions have been used, such as “precautionary measures,” “precautionary approach,” “precautionary philosophy,” “precautionary attitude,” “precautionary culture” and “precautionary principle.” To a greater or lesser degree, these expressions refer to scientific uncertainties, risks and how they are assessed and how they can support decision making on whether or not to carry out certain human activities, as well as to take measures to avoid damage or risks of damage.
To apply the precautionary principle, there is no need for scientific certainty regarding environmental damage for actions in defense of the environment to be taken. In its utmost degree, this principle may halt activities that threaten the environment. As Rosie Cooney has said, the generally applicable definition consecrated by Principle 15 of the Rio Declaration on Environment and Development in 199210 expresses a “weak” conception of the precautionary principle. It is weak because its application depends on several pre-conditions: (a) serious and irreversible damage to the environment or to human health; (b) lack of scientific certainty, which cannot be used as a reason for postponing measures; (c) consideration of the cost- effectiveness of precautionary actions and (d) measures to be applied by States according to their respective capacities.11 The “strong” conception of the precautionary principle, meanwhile, is defined not by the existence of serious and irreversible damage, but rather by the existence of a duty to take precautionary measures when human activities pose a threat of damage to human
System of Conservation Units (SNUC). To be sure, however, Decree 5758/2006 also provides that protected areas include conservation units, indigenous lands and quilombola (Maroon) territories. 9 It is relevant here that Brazil is a Federative Republic, made up by the Union, member States and Municipalities. The National Environmental System (SISNAMA) is made up by federal, State and municipal agencies, organized by their scope of powers. The SNUC follows this model, meaning that State and municipal agencies may also create conservation units in their respective areas. Threatened species lists can be published nationally by the Brazilian Institute for the Environment and Renewable Natural Resources (Ibama) or by the member States’ environmental bodies. In this study, however, we limit our analysis to the federal sphere, except for one State MPA, in the State of São Paulo. 10 Cf. infra. 11 R. Cooney, The Precautionary Principle in Biodiversity Conservation and Natural Resource Management: An issues paper for policy-makers, researchers and practitioners (IUCN, Gland, Switzerland and Cambridge, UK 2004), p. 7.
3 health and to the environment. As the author explains, this is a positive duty to take precautionary measures in the face of risk, including a shift of the burden of proof.12
As for the scope of the precautionary principle, most Brazilian indoctrinators distinguish between the precautionary and the prevention principles. 13 Precaution, it can be said, “is characterized by early action in the face of risk … (and) based on this principle … doctrine defends the possibility of shifting the burden of proof.”14 While “preventive action is broad and generic, … precaution is more specific and connects to the initial moment of examination of the risk.”15 Other Brazilian indoctrinators, nonetheless, make no distinction between prevention and precaution.16 In this case, an expanded conception of the precautionary principle covers both the prevention principle and the polluter-pays principle.
To analyze the extent to which this principle has been implemented or not in Brazil, we tried to establish objective indicators, particularly regarding the implementation of marine protected areas and the protection of marine fauna species that are threatened or at risk.
To what extent has the application of the precautionary principle been effective?
Applying the precautionary principle to processes that implement MPAs and protect threatened species means assessing the risks implicit in managing those areas and species. This involves analyzing several factors: the creation and management of the areas, drawing up lists of threatened species, preparing national 17 action plans for species conservation and recovery, specific policies to protect and recover species and the licensing of potentially or effectively polluting activities. We therefore analyzed the precautionary principle’s application to biodiversity conservation and marine natural resources management as a fundamental tool for sustainable development, providing “guidance for governance and management in responding to uncertainty.”18
We discovered that application of the precautionary principle to affairs involving MPAs and threatened species, by both the federal government and higher courts (the STJ and the TRFs), is still at an embryonic stage.
In December 2014, of 63 federal MPAs, only 33 protected marine biomes, while 2 of them protected marine and coastal biomes. Of these 35 MPAs, less than half have management plans and none of those plans refer directly to the precautionary principle, although a few set restrictions on use, which can be considered a precautionary measure. Portaria 445/2014, an executive order enacted by the Ministry of the Environment (MMA), established the list of 475
12 Ibid., p. 08. 13 J. P. Figueiredo, Curso de Direito Ambiental (Revista dos Tribunais 2013), M. D. Leuzinger and S. Cureau, Direito Ambiental (Elsevier 2013), P. A. L. Machado, Direito Ambiental Brasileiro (Malheiros 2011), A. M. M. Marchesan and et al, Direito Ambiental (Verbo Jurídico 2011), M. A. Rodrigues, Instituições de Direito Ambiental (Max Limonad 2002), José Rubens Morato Leite and Patrick Ayala, Direito ambiental na sociedade de risco (Forense 2002). 14 Marchesan et al, p. 52-53. 15 José Rubens Morato Leite, ‘Sociedade de Risco e Estado’ in José Joaquim Gomes Canotilho and José Rubens Morato Leite (eds), Direito Constitucional Ambiental Brasileiro (5th ed., Saraiva 2012), p. 200. 16 This is the position, for example, of Edis Milaré, who while not discarding the possible difference between the prevention and the precautionary principles, prefers to adopt the formula of the prevention principle, taken to include precaution. E. Milaré, Direito do Ambiente: doutrina, prática, jurisprudência e glossário (Revista dos Tribunais 2000), p. 102. 17 There are also regional and local plans that have not, however, been analyzed in this study. 18 Cooney p. 1.
4 aquatic species threatened with extinction, whose harvest and sale was thereby prohibited. The deadline for regulating the catch of “vulnerable” species, however, was postponed by MMA Portaria 93/2015, under pressure from the fishing industry. Later, even Portaria 445 was suspended by a court order.19 The MMA then issued a new Portaria (163/2015), extending the deadline for regulating the catch of 31 “endangered” and “critically endangered” species, considered to be of economic interest. Things are thus moving away from, rather than any closer to application of the precautionary principle.
The implementation of national plans of action to conserve threatened marine species, despite their explicit or implicit use of the precautionary principle, is underway and at times faces problems recognized even by the Chico Mendes Institute for Biodiversity Conservation (ICMBio), the federal agency that implements actions of the National System of Conservation Units (SNUC).20
In our survey of case law at the STJ and TRFs, from 2000 until 2015, we found 11 decisions involving MPAs and application of the precautionary principle while linking MPAs to the protection of threatened species, indicating a trend in these courts to apply the principle’s “strong” conception. Ten of those decisions actually halted economic activities due to threats to the environment and to marine biodiversity.
What is the evidence to support these conclusions?
To produce these results, we drew up two sets of objective research parameters, using the following questions:
1) How does Brazil’s federal government apply the precautionary principle? a. Presence of management plans for MPAs in marine and marine/coastal biomes; b. Precautionary principle mentioned explicitly in those management plans; c. Presence of risk-control measures in those management plans; d. Presence of restricted natural-resource use zones in those management plans; e. Presence of lists of marine species threatened with extinction; f. Presence of national plans of action to conserve threatened marine species, containing explicit or implicit reference to the precautionary principle; g. Environmental licensing of activities that effectively or potentially place at risk marine biodiversity and the precautionary principle.
Positive, partially positive or negative answers to these criteria signal the degree of implementation (effective, partially effective or ineffective) of the precautionary principle.
2) How have Brazil’s higher courts21 applied the precautionary principle?
In the texts of Brazil’s higher court decisions we found mention to the following terms applicable to the precautionary principle: a. Threat to the Environment b. Threat to human health c. Serious or irreversible damage d. Lack of scientific certainty must not be used as a reason to postpone action e. Analysis of the cost-effectiveness of measures
19 TRF1 Region – Interlocutory Appeal n. 0025933-82.2015.4.01.0000/DF (d), June 8, 2015. 20 ICMBio Website. National Action Plans (Planos de Ação Nacional – PANs). Available at: http://www.icmbio.gov.br/portal/biodiversidade/fauna-brasileira/planos-de-acao-nacional.html 21 This study only surveyed the Higher Court of Justice (STJ) and Regional Federal Courts (TRFs).
5 f. In dubio pro natura g. Order to halt activities h. Prevailing understanding of the precautionary principle
The presence or absence of those terms in the court decisions we analyzed are evidence of the application of the “strong” or “weak” conception of the precautionary principle.
What was the method for assessing the effectiveness of the precautionary principle?
In line with IUCN’s Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management,22 we proceeded as follows:
We first did a survey on the precautionary principle in legal doctrine, looking mostly at Brazilian doctrine, to understand the basis for defending its application to MPAs and to threatened marine fauna species.
The second stage was to analyze the legal and policy framework: Brazilian legislation, including treaties and regional agreements on the conservation of marine biodiversity and threatened species to which Brazil is a party, identifying whether or not each of these documents recognize the precautionary principle.
We then did exploratory research to find evidence on implementation of the precautionary principle, involving: (a) an inventory of federal MPAs that protect marine and coastal/marine biomes, including their management plans; (b) a study of lists of threatened marine fauna species and national plans of action; and (c) a case study, on the Abrolhos National Marine Park and the environmental licensing there of oil and gas exploitation.
To complement this study, we did a case-law survey and analysis at the STJ and TRFs, to identify how the precautionary principle has been applied to MPAs and threatened marine species. We produced a table with the fundamental arguments in decisions involving precaution, in order to identify the conception of the precautionary principle adopted by those courts.
What was the outcome of the objective assessment of legal principles?
In the process, the team members learned much about methodological procedures and about the precautionary principle, MPAs and threatened species.
The first of the various challenges was to analyze the precautionary principle applied to marine biodiversity conservation by associating MPA mechanisms with the protection of threatened species, each based on different protection rationales.
It was fundamental, at the beginning, to delimit the concept of the precautionary principle and observe its explicit or implicit adoption by Brazilian law. It is essentially a practical principle, aimed at solving complex problems. However, while there are several norms mandating its application, there are no legal or policy guidelines to instruct that application. We found almost
22 IUCN Council, Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management (2007).
6 no doctrinal analysis at all in Brazil on the precautionary principle applied to the conservation of marine biodiversity.23
Another task was to scope the scenario for application of the principle. Based on the progress made by the team in the first phase of the Project “Law for Sustainability: Building a Legal Component for the IUCN Natural Resource Governance Framework,” on the effectiveness of the participation principle in Brazilian MPAs,24 we opted to stay focused in this study on the application of principles in MPAs.
We then proceeded to make major adaptations to meet the deadline for this project, particularly the exploratory phase, which heavily influenced methodology. We scoped down application of the precautionary principle to federal MPAs created to protect marine and coastal-marine biomes, also considering threatened species.
Setting objective parameters to analyze the precautionary principle and to assess outcomes required much thought. If the precautionary principle warns us of the need to construe balanced decisions vis-à-vis environmental risks (in dubio pro natura), then its effectiveness is directly proportional to the quality of the decision-making process. How, though, to choose decisions for this analysis? How to define evidence of its application? How to ponder outside factors (social, political, scientific, economic, financial, bureaucratic, etc.) that may interfere in deliberations? These and other doubts, in our opinion, are practical issues that must be considered as we develop our method.
Developing an assessment method is actually necessary, in order to build indicators and also to deepen our analysis of scenarios and hypotheses; and this all takes time.
Here we provide some initial reflections by the research team, on what was possible to do in a short period of time, in the hope that they can suggest directions for further discussions and for an objective assessment of the implementation of legal principles.
THE NATURAL RESOURCE GOVERNANCE ISSUE
The greatest threats to marine biodiversity are overfishing and pollution, as we read in the Census of Marine Life (2000-2010). 25 The impacts of human activities such as fisheries, tourism, mining (oil and others) lead to the decline of marine fauna species and to waves of ecological shifts which can alter the ecosystemic functioning of oceans.26 While these impacts vary in their intensity, their spatial distribution is also differentiated, concentrated and accumulating mostly in coastal ecosystems.27 In this context, much more knowledge is needed about marine fauna species, including species that are still unknown, along with assessments of the state of conservation, risks and threats to marine biodiversity, and the precautionary principle must be applied.
The Strategic Plan for Biodiversity 2011-2020, including Aichi Biodiversity Targets, adopted in 2010 at the tenth meeting of the Conference of the Parties (COP 10) of the Convention on
23 Although there are articles and books on the precautionary principle, there are nearly none with reflections on the precautionary principal in biodiversity conservation. 24 That first analysis by this team produced the “Draft Report - Effectiveness of the participation principle in the implementation of marine protected areas: Brazilian case study”. 25 “Overfishing and pollution were identified as the main threats to biodiversity across all regions, followed by alien species, altered temperature, acidification, and hypoxia, although their relative importance varied among regions” (Costello and alli, p. 1). 26 D. McCauley et al, ‘Marine defaunation: animal loss in the global ocean’ (2015) 347 Science. 27 B. Halpern, ‘A global map of human impact on marine ecosystems’ (2008) 319 Science.
7 Biological Diversity (CBD), declared its mission to be: "take effective and urgent action to halt the loss of biodiversity in order to ensure that by 2020 ecosystems are resilient and continue to provide essential services, thereby securing the planet’s variety of life, and contributing to human well-being, and poverty eradication.”28 To that end, important measures to be adopted include taking decisions based on sound scientific data and the precautionary approach, since the challenge is to reduce pressures on marine biodiversity.
Brazil ratified the CBD and must comply with the Aichi Biodiversity Goals, by expanding its MPAs to at least 10% of coastal and marine areas, as stipulated in Target 11. Brazil’s initial strategy to protect biodiversity was structured by the National Plan for Protected Areas (PNAP, Decree 5758/2006), which included precaution among its principles. The strategies adopted by the National System of Conservation Units (SNUC) also include the adoption of “precautionary measures in areas with signs of high environmental sensitivity and under threat, in order to safeguard those environments for the future creation of conservation units.” Actually, the precautionary principle applied to the protection of marine biodiversity, and in particular to threatened marine fauna, demands not only the creation and management of marine conservation units and areas for the species to spawn, but also public policies aimed at minimizing impacts on those same species’ populations located outside protected areas. This is why the preparation and publication of lists of species threatened with extinction is so important, to call attention to the need for rapid action in favor of those species at the greatest risk of extinction, as well as Priority Areas for the Conservation of Biodiversity and National Plans of Action (PANs) for the Conservation of Threatened Species and of Speleological Heritage.
While there are several documents analyzing biodiversity conservation strategies and even case studies on certain marine protected areas and some threatened species, there is very little work done on analyzing the application of the precautionary principle during the creation and management of marine protected areas and for the protection of threatened marine species.29
THE LEGAL PRINCIPLE BEING EVALUATED
International and regional context
In the environmental field, the precautionary principle has been adopted by several international documents, 30 particularly the final Declaration of the United Nations Conference on Environment and Development in 1992, whose Principle 15 declared that:
28 CBD COP 10 Decision X/2. Strategic Plan for Biodiversity 2011-2020. 29 A query in the Brazilian Digital Library of Theses and Dissertations using the keywords (in Portuguese) precautionary principle and conservation units identified only one thesis in the field of law: L. Albuquerque, ‘Conflitos socioambientais na zona costeira catarinense: estudo de caso da Barra do Camacho/SC’ (PhD thesis, Universidade Federal de Santa Catarina 2009). 30 The first international document to recognize the precautionary principle was the World Charter of Nature, adopted by the UN General Assembly in 1992 (Res. 37/7, Principle 11). The same principle later came back in several international conventions on protection of the environment, including the marine environment. Among international declarations and conventions that refer to the precautionary principle, we would highlight, for example: (a) the ministerial declaration adopted at the Second International Conference on Protection of the North Sea in 1987 (paragraphs VII and XV-i), reiterated by the ministerial declaration adopted at the Third International Conference on Protection of the North Sea in 1990 (Preamble); (b) the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (Preamble and article 6, amended in 1990); (c) the 1992 UN Framework Convention on Climate Change (Preamble and article 3-3); (d) the 1992 Convention on Biological Diversity (Preamble); and Agenda 21 (chapters 15, 17 and 31).
8
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
Although this definition in the Rio Declaration is widely quoted, experts argue that in binding and non-binding international texts there is no uniform approach regarding the content, status, scope, application criteria and legal effects of the principle. Based on different readings, States make normative options to adopt it or not and, to some extent, are politically guided by their preferred development model.31
Multilateral environmental conventions to which Brazil is a party and that explicitly incorporate the precautionary principle include the Convention on Biological Diversity (CBD)32 and the UN Framework Convention on Climate Change (UNFCCC). 33 While under the CBD regime application of the precautionary principle requires merely a threat of significant reduction of biological diversity, under the UNFCCC the risk must be greater, i.e., involving threats of serious or irreversible damage, thus expressing a weak conception, in line with the Rio Declaration. The CBD thus requires that member states establish a system of protected areas or implement special measures to conserve biological diversity, while promoting the recovery of threatened species through the development and implementation of plans or other management strategies.
Other conventions, although they do not refer expressly to the precautionary principle, do adopt mechanisms that require it to be applied. Examples include: (a) the Washington Convention on International Trade in Threatened species of Wild Fauna and Flora (CITIES), which governs the protection of species, especially those threatened with extinction, by regulating and monitoring their international trade in order to keep the threat from reaching unsustainable levels; (b) the Convention on the Conservation of Migratory Species of Wild Animals (CMS), whose development strategies commit the parties to incorporate the precautionary principle in their implementation; and (c) the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauty of the Americas, which provides that countries shall adopt appropriate measures “to avoid extinction threatening a given species” (article VII).
Federal Constitution
31R. Schomberg, ‘The precautionary principle and its normative challenges’ in E. Fisher et al. (eds), Implementing the precautionary principle: perspectives and prospects (Edward Elgar 2006), p. 171. 32 The CBD recognizes that “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat” (Preamble). However that provision makes no direct connection with the issue of habitats of threatened species, imposing on member states the duty to “Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies” (article 8-f). This provision is repeated in the text of the Cartagena Protocol, whose statement of objectives reaffirms the precautionary logic contained in Principle 15 of the Rio Declaration (article 1). 33 The UNFCCC provides that “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.” (article 3-3)
9 Brazil’s 1988 Constitution established an environmental protection regime that imposes upon public authorities and the community the duty to defend and preserve the environment. The precautionary principle emerges from article 225 of the Constitution, “imposing the quest for answers to the need for greater security and regulation of doubts arising from science, in order to ensure the right to an ecologically balanced environment for both present and future generations.”34 In terms of risks and the duties of the state, the precautionary principle imposes upon authorities the power-duty to control and oversee activities that place biodiversity at risk, including the requirement of prior environment impact studies for the installation of any work or activity that can potentially cause significant environmental degradation.35 It also speaks to the power-duty to preserve and protect biodiversity, ensuring the preservation and restoration of essential ecological processes, the protection of specially protected territorial spaces (ETEPs)36 – which may only be altered or suppressed by means of a law and in which any use that may harm the integrity of the attributes justifying their protection is forbidden – and the protection of fauna, also prohibiting all practices which represent a risk to their ecological function or cause the extinction of species.37 In this study, we emphasize this second aspect of applying the precautionary principle to the conservation of biodiversity and the risk of extinction of marine fauna species.
Infra-constitutional norms: MPAs, threatened species and the precautionary principle
Infra-constitutional norms on the environment explicitly or implicitly adopt the precautionary principle. The National Policy on Marine Resources adopted in 2005, for example, makes the precautionary principle one of its basic principles for the sustainable exploration and use of maritime resources.38 In the same direction, the 2004 federal norm for management of the coastal zone presents as one of its fundamental principles “the application of the precautionary principle as defined in Agenda 21, adopting effective measures to halt or minimize environmental degradation, whenever there is a danger of serious or irreversible damage, even in the absence of complete and current scientific data.”39 The National Environmental Policy Law (Law 6938/81) also includes a number of instruments aligned with a precautionary logic, such as environmental zoning, environmental impact assessments, environmental licensing and the creation of specially protected territorial spaces.40
The National Strategic Plan for Protected Areas (PNAP, Decree 5758/2006) also has precaution among its principles and presents as one of its strategies the adoption of precautionary measures in areas with signs of high environmental sensitivity and threats, in order to safeguard those environments for the future creation of conservation units. Law 9985/2000, which created the
34 S. T. Silva, "Princípio de Precaução: uma nova postura face aos riscos e incertezas científicas" in M. D. Varella and A. F. Platiau (eds), Princípio de Precaução (Del Rey 2004) 35 1988 Federal Constitution of Brazil, Art. 225, § 1º, items II, IV and V. 36 Specially protected territorial spaces is the most widely used term in Brazil’s legislation. It covers protected areas (conservation units, indigenous lands and quilombola territories) and other territorial spaces, for example the permanent preservation areas, governed by article 4 of Law 12,651/2012, including mangroves. 37 1988 Federal Constitution of Brazil, Art. 225, § 1º, items I, II, III and VII. 38 Decree 5377/2005. 39 Cf. art. 5-X of Decree 5300/2004. 40 Other general laws can also be mentioned, such as for example the “Environmental Crimes” Law (Law 9605/98) which sets the same penalties for polluters as for anyone who fails to adopt, when required by authorities, precautionary measures when there is a risk of serious or irreversible environmental damage (art. 54-3), or the National Biosafety Law, whose guidelines include the promotion of scientific progress in biosafety and biotechnology and compliance with the precautionary principle to protect the environment.
10 National System of Conservation Units (SNUC) allows the creation of Areas of Provisional Administrative Limitation (ALAPs) prior to the creation of future units. Management plans establish norms, restrictions on the use of natural resources and actions to be implemented inside the UCs and in their surrounding areas (buffer zones), to minimize negative impacts on the UC. It is actually these management plans that breathe life into the marine biodiversity conservation and management strategy, and allow the precautionary principle to be applied.
Two other tools besides the conservation units have also been recognized as vital for conservation policies:41 the lists of threatened species, together with national plans of action to conserve those species, including the identification of areas for their conservation.
The object of our case study, the Abrolhos National Marine Park, was the country’s first marine park, created in 1983 by Decree 88,218 to safeguard exceptional natural features, while conciliating the full protection of flora, fauna and natural beauty with educational, recreational and scientific uses. Its 1991 management plan adopted zoning to achieve its management objectives, with seven types of zones: an untouchable zone (for full protection of ecosystems and genetic resources), a primitive zone (with little or minimal human intervention), an extensive-use zone (allowing some human interference), an intensive-use zone (made up of natural or human-impacted areas), a historical-cultural zone (with archeological sites or signs of past settlements), a rehabilitation zone (with intense signs of degradation) and a special-use zone (for the park’s administration, maintenance and services).
Degree of implementation of precautionary measures
Implementation of the precautionary principle can be rated based on use of the “weak” conceptual approach, reflecting the need to meet all the requirements in Principle 15 of the 1992 Rio Declaration, or on its “strong” meaning, when there is a positive duty to take precautionary measures in the presence of risks. In this context, the analysis must explicitly identify a “weak” or “strong” approach to the precautionary principle.
Concrete evidence allowing for an assessment of the implementation of the principle relates to the presence of: a) Characterization of uncertain risks; b) Assessment of options, including not proceeding with a given activity; c) Transparency, information and participation in decision making, moving towards governance; d) Definition of responsibilities for the providing of information; e) Precautionary measures taken and an explicit definition of the uncertainties that motivated such measures; f) Measures proportional to the potential risks; g) Equitable measures; h) Adaptable vision.
Of course it is not always possible to demonstrate the presence of all these concrete indicators. The presence of some of them, however, may well indicate a tendency to apply the principle using a “weak” or “strong” bias.
41 There are other norms that also relate to the protection and management of species of fauna: (a) those that ban the fishing of certain species, such as cetaceans (Law 7643/1987) or, (b) that ban the entry into Brazil of species without a favorable technical assessment and a specific license (article 4 of Law 5197/1967 on the protection of fauna). In this study, however, we have prioritized norms that structure and guide overall biodiversity conservation policies, rather than being associated with a single species or prohibition.
11 THE METHOD OF EVALUATION
We first gathered bibliography mostly on Brazilian doctrine regarding the precautionary principle, as well as a survey and analysis of the country’s norms regarding the precautionary principle vis-à-vis MPAs and the protection of threatened marine fauna species. We also compiled an inventory and analysis of regional treaties and agreement to which Brazil is a party, systematized in Chart 2 (Annex II). Considering the concept of the precautionary principle, we were then able to outline an “ideal scenario” of effectiveness of the principle for the implementation (i.e. both creation and management) of MPAs, and its correlation to the protection of threatened species.
The second step was to define objective parameters for the research. We based this on the IUCN’s Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management. We chose to divide them into two groups relating to two different decision-making settings involving application of the precautionary principle: government decision making and dispute settlements in court. We also organized outcome indicators on a sliding scale. For the first group, the sum of positive or negative answers indicates effective, partially effective or ineffective outcomes. For the second group, references to certain terms denotes application of the “weak” or “strong” conception of the precautionary principle.
Simultaneous to that analysis, a survey of official data from the National Registry of Conservation Units (CNUC), accessed through the ICMBio website, gathered data on the implementation (creation and management) of federal MPAs to protect marine and marine- coastal biomes, identifying the type of UC and the State in which the MPA is located, the document by which it was created, the protected biome declared on the standardized CNUC form, the presence or absence of a management board and the year of its creation, the presence or absence of a management plan and the date of certification of this data by the MPA’s management body.42 The results of this survey were compiled in Chart 1 (Annex I).
This allowed us to draw up an initial, objective, check-list analysis on implementation of these MPAs. In order to turn it into evidence on the application of the precautionary principle, however, we complemented that initial examination with a qualitative analysis. Through three parallel research fronts, we enhanced our perception of issues regarding the definition of risks, evaluation of options, assigning of responsibilities for providing information, adoption of proportional, equitable and adapted precautionary measures, and others. The three fronts were: a) An inventory of federal MPAs and an analysis of management plans in federal MPAs that protect marine and marine-coastal biomes. We gathered data – through a query to the CNUC – on the whether precautionary measures were covered or not in the management plan (where there is a plan) and on the presence or absence of a public list of threatened species in each unit. We then checked that information during semi- structured interviews with managers of those units.43 The results were organized into Charts 3.1 and 3.2 in Annex III, grouped with other full-protection or sustainable-use UCs.44
42 We confirmed with ICMBio employees, by telephone, that those data available on the agency’s site were up to date, although we had found discrepancies between data from different pages on the same site, as well as outdated figures. 43 Due to the physical distance between the research sites, the interviews were done by telephone. We used the following open questions, with room for additional comments: (a) does the MPA have a management plan?; (b) if it does, does it contain precautionary measures?; (c) if not, are precautionary measures provided for in some other fashion? and (d) is there a list of threatened species in the UC? 44 During the survey we discovered that part of the publically available information had not been certified by the respective management board, was outdated or was incomplete. We had to confirm the information by telephone with the ICMBio.
12 b) Analysis of the lists of threatened marine fauna species and of the national plans of action. To verify the vulnerability situation of the species, we cross-analyzed these UC lists and the IUCN Red List,45 to arrive at a percentage distribution for the degrees of danger of extinction, shown in Graph 1. Based on that picture, we searched for national plans of action for the conservation of each of these threatened marine species and, when positive, whether the plan makes explicit or implicit reference to the precautionary principle, as summarized in Chart 4 (Annex IV). c) A case study on the Abrolhos National Marine Park MPA and environmental licensing. To grasp the complexity of the legal-political scenario for application of the precautionary principle and to “test” the assessment of its effectiveness, we did a case study involving this MPA, where oil and gas operations were licensed in its vicinity.
Complementing that study, a survey and case-law analysis of the STJ46 and TRF decisions helped identify cases in which the precautionary principle was applied to matters affecting protected marine areas and threatened marine species. The queries were made through the website of the Federal Council of Justice,47 which houses decisions by the country’s higher federal courts. To find relevant decisions, we queried the following key words: “precautionary principle and conservation,” “precautionary principle and conservation units,” “precautionary principle and species threatened with extinction,” “precautionary principle and biodiversity,” “precautionary principle and biological diversity” and “precautionary principle and marine biodiversity.” We gathered the results of the queries in each of the higher courts with these key words and, after reading each of the decisions to find out how many actually referred to applying the precautionary principle to federal marine protected areas, the object of this study, we set aside any duplicate decisions. We then made a chart with precaution-related grounds for the decisions, in order to identify which conception of the precautionary principle was adopted by these Brazilian higher courts (Chart VI – Annex VI).
DETAIL: HOW EFFECTIVE IS THE LAW?
Our analysis of the precautionary principle in the implementation (creation and management) of protected marine areas in Brazil and its correlation with the protection of threatened species highlighted factors that allow for a cause-and-effect diagnosis regarding the principle’s effectiveness.
The conception in law
The precautionary principle is present in both constitutional and infra-constitutional norms. Public authorities therefore have a positive duty to take precautionary measures in response to risks of biodiversity loss, in order to preserve and restore essential ecological processes. This is so for the protection of specially protected environmental territories (ETEPs) and for the protection of fauna. In addition, any practices that put ecological functions at risk or provoke the extinction of species are forbidden.48
The National Environmental Policy Law (Law 6938/81) provides instruments that allow the adoption of measures to face risks: environmental zoning, environmental impact assessments, environmental licensing and the creation of specially protected environmental territories. Decree 4297/2002, which enables environmental zoning, declares that ecological-economic zoning
45 The IUCN Red List of Threatened Species http://www.iucnredlist.org/search 46 The Higher Court of Justice (STJ) has power to judge, on special appeal, cases decided, in a sole or last instance, by Federal Regional Courts (1988 Federal Constitution of Brazil, Art. 105-III). 47 Website of the Federal Justice Council (CJF)
13 (EEZ), as an instrument for territorial organization, must comply with several conditions, including the precautionary principle. In environmental licensing,49 the Union has powers to license projects and activities located or carried out in the territorial sea, on the continental platform or in the exclusive economic zone. 50 The entrepreneur must finance the studies required for this licensing process, and they must be carried out by legally qualified professional. The environmental agency must define specific procedures, adapted to the project’s nature, characteristics and specificities, thus taking into account the risks of this activity or project.
There are also norms for the environmental licensing of activities carried out in the coastal and marine zone, such as oil drilling and shrimp farms. Oil drilling, for example, must comply with norms that require risk analysis and management and allow areas and periods to be defined for periodic, temporary or permanent restrictions in order to collect marine seismic data and in transition zones, areas with different levels of environmental sensitivity. 51 On fish farms, CONAMA52 Resolution 312/2002, on the environmental licensing of shrimp farming projects in coastal zones, adopted the precautionary principle and prohibited this activity in mangroves. This situation changed, however, when Law 12,651/2012 replaced the 1965 Forest Code. Although the law establishes specially protected environmental territories (ETEPs) with permanent preservation areas, including mangroves,53 and provides that apicuns and salgados (two kinds of coastal saltwater marshes, with little or no bushy vegetation) can only be used for shrimp farm and salt flat activities – as long as there are safeguards for the absolute integrity of mangroves and of essential ecological processes associated with them, as well as their biological productivity and role in the fish-spawning resources – it does authorize the legalization of longstanding shrimp farm and salt flat activities, when they have occupied areas since before July 22, 2008. This is true regression, in terms of implementing the precautionary principle.
For protected areas, the National System of Conservation Units (SNUC, Law 9985/2000), in addition to the objective of protecting threatened species on regional and national scales (art. 4- II of Law 9985/2000), allows the creation of Areas of Provisional Administrative Limitation (ALAPs) prior to the creation of future UCs. These provisional administrative limitations on activities and projects that can effectively or potentially cause environmental degradation – except for agriculture and other previously licensed economic activities and public works – may
49 CONAMA Resolution 237/1997, Complementary Law 140/2011, Decree 8437/2015. 50 Art. 7-XIV(b) of Complementary Law 140/2011. 51 Law 9966/2000 provides basic principles to be obeyed for moving oil in ports, platforms and ships; CONAMA Resolution 428/2010, on environmental licensing, requires authorization from the body responsible for the administration of a Conservation Unit (UC), and acquiescence by the body responsible for the administration of a UC for the environmental licensing of projects not subject to prior environmental impact studies; CONAMA Resolution 350/2004 governs environmental licensing of specific activities to acquire marine seismic data in transition zones; CONAMA Resolution 293/2001 prescribes the minimum content of Individual Emergency Plans for oil spill incidents in organized ports, port installations and terminals, pipelines, platforms and their respective support facilities, and orients how they should be drafted; CONAMA Resolution 269/2000 sets criteria for actions to fight oil and oil product spills in the sea; CONAMA Resolution 23/1994 provides specific criteria for the environmental licensing of activities involving oil and natural gas drilling and production. All these activities must be licensed by IBAMA or by State environmental agencies. 52 CONAMA is the National Environment Council, an advisory and decision-making body and part of the National Environment System (SISNAMA), which has powers to establish norms, criteria and standards for the control and maintenance of environmental quality and for the rational use of environmental resources. 53 “Lowland coastal ecosystems subject to tides, made up of recent or sandy mud flats, associated predominantly with natural vegetation known as mangue, with fluvial-marine influence typical of silty soils in estuarine regions, spread in a discontinuous manner along the Brazilian coast, from the States of Amapá to Santa Catarina” (art. 3-XIII).
14 be decreed to allow studies to be done towards the creation of UCs when, in the judgment of the responsible environmental agency, there is a risk of serious damage to natural resources inside them (article 22-A). However, this mechanism was only used twice, both times in areas of the Legal Amazon.54 Buffer zones around conservation units, where human activity is subject to specific norms and restrictions in order to minimize negative impacts on the unit itself (article 2- XVIII), as provided in UC management plans, are another instrument that allows the precautionary principle to be applied. Management plans must be put in place within five years after the UC is created and provide the norms and restrictions on use of natural resources and on actions that may be carried out in the UC, in its surrounding area, buffer zones and ecological corridors, minimizing negative impacts on the UC and allowing for connections between conservation units. In full-protection UCs that do not yet have management plans, all activities and works must be limited to those that ensure the integrity of the resources for whose protection the unit was created.
In addition to conservation units, two other instruments that have been recognized as vital for conservation policies55 are the lists of threatened species, in tandem with national plans of action to conserve those species, and the identification of priority areas for conservation. Both of them enable implementation of the precautionary principle. The preparation and publication of lists of threatened species is an indicator for decision making. Lists for fish and aquatic invertebrates, in addition to species threated with extinction, also include those that are overfished commercially. We should recall that, the category of species threated with extinction includes extinct species and the three IUCN categories for extinct and threatened species: (a) critically endangered, (b) endangered and (c) vulnerable. In theory, at least, we can find application of the precautionary principle in these provisions. In reality, however, although the lists may be useful in some environmental licensing cases, they are a “very weak instrument, hardly effective overall, with serious conceptual and operational failings,” according to Eleonora Trajano.56 She points to problems such as the definition and delimitation of the taxon “species” and the impossibility of protecting geographic variations, since official lists only accept the inclusion of nominal species (formally described by the Genus species binomial). Moreover, the information that 170 species were dropped from the list of threatened species in 2014 should be interpreted with caution, as indicated by the audit done by the Federal Court of Accounts (TCU): “Over half of the exclusions are due simply to changes in their taxonomic classification. The 82 real exclusions were due to a variety of reasons, such as insufficient data for analysis, the irrelevance of the assessment in Brazilian territory, the non-reassessment of the species or methodological changes.”57
The National Plans of Action (PANs) for the Conservation of Threatened Species and of Speleological Heritage are public policy instruments aimed at fighting threats that place populations of species at risk and promoting biodiversity management. They identify priorities and set out strategies for the conservation and recovery of threatened species.58 Priority areas for conservation are identified, including coastal and marine zone biomes, for the purpose of creating conservation units and for doing inventories on the use and recovery of over-exploited
54 Cf. study on the effectiveness of the precautionary principle by M. Leuzinger, et al: “A efetividade do princípio da precaução em unidades de conservação no Brasil”. 55 The protection and management of species of fauna is also governed by other norms that prohibit: (a) the fishing of certain species, such as cetaceans (Law 7643/1987) or (b) the entry into the country of species without a favorable official technical opinion and the respective license (art. 4 of Law 5197/1967, on the protection of fauna). In this study, however, we have focused on norms related to biodiversity protection policies. 56 Trajano ibid. 57 Federal Court of Accounts (TCU), Relatório de Auditoria - Instituto Chico Mendes de Conservação da Biodiversidade (ICMBio) e Ministério do Meio Ambiente (MMA) (TC 006762/2014-0, 2014), p. 25. 58 Decree 4339/2002, with principles and guidelines to implement the National Biodiversity Policy and the Joint MMA/ICMBio Portaria 16/2009.
15 or threatened species, which are to be reviewed every ten years at the most.59 Since 2014, the Second Review of Priority Areas for the Conservation, Sustainable Use and Biodiversity Benefit Sharing in the Coastal and Marine Zone is underway.
The Abrolhos National Marine Park is of ecological importance on a global scale, with the biggest coral bank in the South Atlantic. Despite being surrounded by “ecologically sensitive areas,”60 exploratory blocks have been allocated in successive bidding rounds by the National Petroleum Agency (ANP). In 2003, a federal court order prohibited any form of hydrocarbon exploration or production in the region of the Abrolhos Bank and Royal Charlotte and vicinity, in a 50-km radius.61 When that mandamus writ was overturned in 2010, more blocks were auctioned for the exploration and production of oil and natural gas based on the country’s strategic planning interests, since impeding oil exploration was very harmful to public economic interests. No reference at all was made to the precautionary principle, although studies had been presented with a preliminary analysis of the environmental and socio-economic impacts that might follow the concession of blocks for oil and gas exploration in the Abrolhos Bank region and vicinity.62
In 2012 a sediment area environmental assessment instrument was created for use in processes to grant oil and gas exploration blocks and for the environmental licensing of those projects.63 That assessment was to guide the ANP and environmental agencies in the organization of information on environmentally sensitive areas, considering the possibility that inappropriate areas – those where environmental assets are very important and the need for conservation is incompatible with the impacts and risks associated with oil operations –might be declared moratorium areas, in which important gaps in scientific knowledge had been identified. There are demands for a moratorium on the exploration for oil and gas having negative impacts on biodiversity in Abrolhos,64 as well as studies to expand the park’s protection boundaries, which cover less than 1% of the Abrolhos Bank.65
Implementing and not implementing the precautionary principle
Brazil is not in a comfortable position in terms of creating enough marine conservation units to meet the CBD’s Aichi Goal 11, of protecting 10% of its marine territory by 2020. Today, only 1.5% of the area is protected. According to the Ministry of the Environment’s strategic planning, as observed by the Federal Court of Accounts official audit, “the increment foreseen to occur beyond the present volume of marine protected areas will be insufficient to meet [that goal] by 2020.”66
59 Decree 5092/2004, defines rules to identify priority areas for biodiversity conservation, sustainable use and benefit sharing, within the powers of the Ministry of the Environment and MMA Portaria 126/2004. 60 The expression “ecological sensitive areas” appears in Law 9966/2000, regarding interconnections between oil and gas activities and the environment. These zones are to be defined by IBAMA, in agreement with maritime authorities. IBAMA’s Portaria 39/2006, creating temporary and permanent restricted zones for coastline oil and gas exploration and, particularly, an exclusion zone around the Abrolhos archipelago, was struck down in court. 61 The Federal Prosecutor filed a class action suit and, on August 18,2003, won a staying order in an interlocutory injunction granted by a federal judge in Ilhéus, Bahia. 62 G. Marchioro and et al, ‘Avaliação dos impactos da exploração e produção de hidrocarbonetos no Banco dos Abrolhos e adjacências’ (2005) 1 Megadiversidade 225. 63 Interministerial MMA/MME Portaria 198/2012. 64 Marchioro et al. 65 MMA and ICMBio, Proposição de Unidades de Conservação na Região dos Abrolhos - Documento- Base (2012). 66 Federal Court of Accounts (TCU)
16
Of the 35 MPAs that protected marine and coastal biomes, only 12 have management plans. Of the 18 sustainable-use conservation units, only 2 have management plans, and none of the 12 marine extractive reserves have management plans. The declared objective of this category of protected areas is precisely to protect the environment and ensure the use of renewable natural resources, including fishery resources and others traditionally used by extractive communities living in the areas. Of the 17 full-protection conservation units, 10 have management plans. Although none make explicit reference to the precautionary principle, some of these plans set aside restricted-use areas, which can be taken to be as a precautionary mechanism. We also observed that 12 of the 35 MPAs have no public list of species (8 of these are extractive reserves and 2 are ecological stations, plus a natural monument and a wildlife refuge).
As for the threatened species lists, actions that might have implemented the precautionary principle ended up working against it. The Ministry of the Environment (MMA) published Portaria 445 in 2014 with a list of 475 aquatic species threatened with extinction and prohibited the harvest and sale of those species beginning 180 days later. That order was first modified by Portaria 98/2015, which opened the possibility for threatened species – now classified as “vulnerable” – to continue to be fished for another 360 days.67 Even worse than that, Portaria 445 was suspended by a court order68 which alleged formalities to invalidate it, namely that it had not be signed jointly by the MMA and the Ministry of Fisheries. The MMA then issued Portaria 163/2015, postponing the deadline for regulating the harvest of 31 “endangered” and “critically endangered” species considered to be of economic interest. This actually means assuming the risk of those species actually going extinct.
Six National Plans of Action (PANs) for the Conservation of Threatened Species have already been adopted: of albatrosses and petrels, harbor porpoises, sirenia (fresh- and salt-water manatees in Brazil), large cetaceans and pinnipeds, small cetaceans and marine turtles. Two more PANs are now being prepared, for sharks and corals.
The ICMBio has also taken action to conserve marine biodiversity. One example is the vulnerabilities project, which is a data base to map information on threats and pressures and to indicate areas sensitive to species, to support decision making based on the best available information for environmental licensing, the creation of new conservation units and the preparation of action plans for the conservation of species.69 Four of the institute’s national research centers are also working on the conservation of marine biodiversity, including monitoring species and impacts that affect them: The National Center for Research and Conservation of Marine Biodiversity in the Southeast and South (CEPSUL), the National Center for Research and Conservation of Marine Biodiversity in the Northeast (CEPENE), the Center for Research and Management of Fishery Resources on the Northern Coast (CEPNOR) and the Center for Research and Management of Fishery Resources in Estuaries and Lagoons (CEPERG).
Effects of the context on the outcome
Despite efforts to create MPAs and to draft and adopt management plans and lists of threatened species, much information is still lacking. The fact that there are “so few federal UCs with records of threatened species in part reflects the scale of our ignorance on the biota in these UCs
67 This portaria added paragraph 3 to article 4 of Portaria 445/2014. 68 TRF1 – Interlocutory Appeal # 0025933-82.2015.4.01.0000/DF (d), June 8, 2015. 69Cf. ICMBio Website - http://www.icmbio.gov.br/portal/biodiversidade/fauna-brasileira/cenario- do-risco-a-biodiversidade.html
17 and also the scanty investment in the species, which are generally known in only a small area of their geographic distribution.”70
There is also a shortage of personnel in the field for any effective management of federal MPAs. Nor is there any planning to assure financial sustainability for the SNUC, as documented in the study Pilares para a Sustentabilidade Financeira do Sistema Nacional de Unidades de Conservação.71
Multilateral environmental conventions and the international commitments ratified by Brazil have given a push for the creation of MPAs. Their existence alone, however, is not enough to effectively protect threatened species. There is little linkage of the different policy spheres – public policies on the sea, coastal zone management, sustainable development of aquaculture and fisheries, energy and the environmental – with strategies to protect marine biodiversity. This can lead to the precautionary principle not being used to limit development at any cost, in certain economic sectors.
Real results achieved
During our survey of 63 federal and 7 São Paulo State MPAs, and their respective threatened species, we found that 128 species are present on the federal and State lists in conservation units. This information was gathered on official sites and by telephone calls to managers in each conservation unit. The following graph illustrates the degree of danger of extinction:
Graph 1 – Threatened species in conservation units
CE EN VU NT LC DD LT NA
CE – Critically Endangered EN – Endangered VU – Vulnerable NT – Near Threatened LC – Least Concern DD – Data Deficient NA – Not Appear in IUCN List
70 J. Nascimento and I. Campos (eds), Atlas da fauna brasileira ameaçada de extinção em unidades de conservação federais (ICMBio 2011), p. 20. 71 Jaime Gesisky, Pilares para a Sustentabilidade Financeira do Sistema Nacional de Unidades de Conservação (Brasília - Ministry of the Environment, 2009).
18 Significantly, of the 70 units we studied, 27 units (37.14%) have no list of threatened species and do not provide this information through their institutional publicity channels or even through their staff. In fact staff members in each unit are unaware of which species are on the list or even whether the list exists. From what they told us verbally, the list is “given” by the upper echelons. Another concern is the criteria used by different public agencies to evaluate risks of extinction. There is no consensus among the public authorities responsible for classifications as to whether a given species is threatened or endangered.
In addition, again quoting the audit by the Federal Court of Accounts, the situation of threatened species in federal protected areas has declined less than that of species that do not occur in these areas. In addition to that survey, it is encouraging to note that the state of conservation has improved for species protected by the National Plans of Action for the Conservation of Threatened Species.72 These are signs of implementation of the precautionary principle.
Out of 120 higher court decisions involving the precautionary principle in the STJ and the TRFs, only 11 refer to issues affecting marine protected areas, as we see in this graph:
Graph 2 – Case law in the STJ and TRFs: precautionary principle applied to marine protected areas
Decisions on MPAs
Total decisions involving precautionary principle
Those 11 decisions – issued from 2000 to 2015 – applied the precautionary principle particularly to threats to the environment for which the lack of scientific certainty should not be a reason to postpone actions and the precautionary principle must prevail. In 10 of those cases the court ordered a halt to activities that could potentially cause environmental damage and risk of damage. This means applying the “strong” conception of the precautionary principle.73
The precautionary principle was also applied to large cetaceans, when IBAMA (the Brazilian Institute for the Environment and Renewable Natural Resources, responsible for executing national environmental policies) included precautionary measures for humpback whales in its deep-water petroleum licensing procedures and prohibited seismic activities during that species’ reproductive season.
72 Federal Court of Accounts (TCU), p. 27. 73 Cf. Annex VI, Table 1 - Jurisprudence of the Superior Courts - precautionary principle applied to marine protected areas - Period: 2000-2001 and Table 2 - Table 1 - Jurisprudence of the Superior Courts - precautionary principle fundamentals applied to marine protected areas and threatened species - Period: 2000 to 2015.
19 RECOMMENDATIONS: IMPROVING THE EFFECTIVENESS OF THE LAW
We recommend the following priority actions:
Apply the precautionary principle to biodiversity conservation 1. Adopt guidelines to orient application of the precautionary principle to marine biodiversity conservation, taking into account: risks of economic activities, above all; the existence of options, including not proceeding with a particular activity; precautionary measures taken and explicit definition of the uncertainties that motivated such measures. 2. Dissemination of scientific studies to share current discussions on this principle in comparative law, in order to allow its practical application for biodiversity conservation. 3. Courses, seminars and lectures to disseminate the precautionary principle applied to biodiversity conservation for a variety of players – public officials, civil society, prosecutors, judges and others – in order to integrate the various dimensions of risk analysis and provide environmental governance in marine-coastal areas.
Coordinate biodiversity conservation strategies 1. Coordinate public-policy interfaces involving biodiversity protection, maritime policies and coastal management to promote the precautionary principle. 2. Create new MPAs and implement the precautionary principle in strategies to protect ecosystems, habitats and biomes, as well as threatened species. 3. Apply the precautionary principle taking into account not only all the endangered, critically endangered and vulnerable species, but also the near threatened species. 4. Strengthen the SNUC system, with the ICMBio as the lead agency for marine protected areas, promote environmental governance and implement the precautionary principle. 5. Ensure sufficient means – both human and financial resources – to implement the precautionary principle.
Planning 1. Adopt management plans with explicit precautionary measures for threatened species. 2. Produce and implement action plans for the conservation of threatened marine species. 3. Coordinate among priority areas for biodiversity conservation, plans of action to conserve threatened marine species and environmental licensing.
Information and transparency 1. Use government websites to disseminate lists of threatened marine species. 2. Limit activities and works in the 7 MPAs that have no management plans to those required to ensure the integrity of resources inside them, since as full-protection conservation units they must comply with the SNUC Law. 3. Ensure transparency in administrative decisions and explicit application of the precautionary principle in environmental licensing procedures, to safeguard threatened marine species.
LESSONS LEARNED IN APPLYING THE EVALUATION METHOD
Effectiveness of the evaluation method Based on the IUCN’s Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management, we tried to tailor a method to the research issue at hand, involving not only the gathering, study and analysis of data (quantitative phase), but particularly exploratory research, interpreting the empirical information based on pre-defined guidelines, gathered in semi-structured interviews (qualitative phase).
20
With limited time to formulate, carry out and review this project, a division of labor was decided. All members were committed, but outside factors, such as the following, made it difficult to fulfill our initial plan: a) The bibliographical survey identified doctrine on the precautionary principle, but almost no studies at all on its application to the protection of biodiversity. b) Much of the data gathered from the online inventory of MPAs and management plans is unorganized, outdated and/or not certified by the ICMBio. This demanded another stage to validate the data by phone with each management office. c) Having concluded the survey, it was difficult to gain access to the MPAs’ management plans and, once we had them, to verify whether or not they contained precautionary measures for threatened species in each UC. The plans, it turns out, are prepared with no standard format or methodology. d) We also had to validate ourselves the public information contained in the threatened species lists, during the interviews which were carried out by phone due to the geographic location of the MPAs included in the study. Despite the long-distance contact, the outcome of that phase was satisfactory considering the quality of the information we gathered, which could not have been obtained from a closed questionnaire. We conclude that using semi-structured interviews in the assessment method helped expand the investigation beyond just a check-list analysis. e) Finally, our assessment of the outcome using the objective parameters chosen at the beginning is that, with sensitivity and parsimony by the research team, we did produce some considerations on the effectiveness of the principle and the method.
As explained, choices were made to prioritize the construction, application and review of the method. The choice was to adopt a relatively lean research problem – compared to the complexity of the real problem – instead of backing down from the challenge, bearing in mind that it may still be of practical use to various players (governments, scientific community, economic sector, organized civil society, individuals, etc.), with an array of roles and interests.
Recommendations for improving implementation of the evaluation method
In this second experience, we reiterate our warning that there has been no attempt to write a guidebook on how to assess the effectiveness of a legal principle, since we believe that the feasibility of applying the method depends on the concrete conditions in each case. Our objective was to project some structural lines we believe to be crucial to building an architecture that can assess the effectiveness of a legal principle. The recommendations presented here relate to the difficulties encountered while developing and applying the methodology.
The first observation is on the definition of the research object to be assessed. The choice of a legal principle in the field of natural-resource governance (in this case, precaution) should reflect its different conceptions, which should be taken into account in the study. Ideally, the method should be scaled to include assessment of that variety, since legal systems in fact are not uniform and, even within a single system, one finds different rationales for protection, depending on the issue at stake.
The same reasoning applies to defining the parameters for assessment and results. Since we are not re-inventing any wheels, it is prudent to base them on existing, well-discussed guidelines. Here, we adopted the IUCN’s Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management. That methodology’s prescriptions were adapted to the exploratory nature of our research, in order to unveil certain substantive aspects of precaution.
21
While this project has a legal outlook, we could not close our eyes to issues from other fields. The research team faced difficulties when analyzing certain points in the study, for example when examining the precautionary measures prescribed in planning instruments and their effects for the conservation of species. This led the group to integrate a multidisciplinary approach.
For the exploratory research, we needed time to reflect, discuss and make any adjustments that might be needed. It would be good to include considerations in the study from other players as well (NGOs, scientists, artisanal fishers, maritime authorities, etc.) on the actual application of the precautionary principle in cases being studied, preferably through a new round of non- directed interviews or even from secondary sources. This was not done due to time limitations on visits and trips, as well as budget restrictions.
A caveat on the case-law is that the indexing of decisions might compromise the results, for generic queries. One must use a broad set of keywords to filter the relevant decisions. We also limited our search to federal courts, although ideally we should include all of the country’s State courts as well, since the SNUC is also a federative system.
Our case study also deserved more time, to have more discussion on the material we gathered and also to interview the UCs’ managers.
Finally, the issue of the MPAs’ administrative, human and financial resources merits a whole other chapter, to explore the system’s progress and shortcomings. Similarly, the Brazilian federation’s relations between the federal and State governments also deserve much more analysis, to understand how they all handle conservation units, the protection of threatened species and the precautionary principle.
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APPENDICES
Annex I Table 1 Federal Protected Marine Areas in Brazil – Protected Biome: Marine and Marine / Coastal
Annex II Table 2 - Multilateral environmental conventions and the protection of marine biodiversity
Annex III Table 3.1) Federal Protected Marine Areas in Brazil and Protected Endangered Species – Sustainable Use CU Table 3.2) Federal Protected Marine Areas in Brazil and Protected Endangered Species - Full Protection CU Table 3.3) Protected Marine Areas in the State of São Paulo (Brazil) and Protected Endangered Species
Annex IV Table 4 - National Action Plans for the Conservation of Marine Biome Endangered Species
Annex V Table 5 - Parameters for analyzing the effectiveness of the precautionary principle
Annex VI Table 6 - Jurisprudence of the Superior Courts - precautionary principle applied to marine protected areas - Period: 2000-2001 Table 7 - Jurisprudence of the Superior Courts - precautionary principle fundamentals applied to marine protected areas and endangered species - Period: 2000 to 2015
23 Annex I - Table 1 Federal Protected Marine Areas in Brazil – Protected Biome: Marine and Marine / Coastal Type of Name of CU Founded by Act Protected Biome Managing Management Date of information CU and Board – year of Plan certification by the State foundation managing body Environmental Protection Areas (APA)
APA – ES APA Costa das Algas Decr. dated June 17, 2010 Marine Yes** No Jul. 16, 2010 (1) 2010 APA – SC APA da Baleia Franca Decr. dated September 14, 2000 Marine Yes No Sep. 27, 2007 (2) 2006 APA – PE APA da Costa dos Corais Decr. dated Oct. 23, 1997 Marine-Coastal Yes Yes * Sept. 27, 2007 e AL 2011 (3) APA – SC APA de Anhatomirim Decr. n. 528, May 20, 1992 Marine-Coastal Yes No Sept. 27, 2007 (4) 2008 APA – PE APA de Fernando de Noronha Decr. n. 92,755, June 5, 1986 Marine Yes Yes Sept. 27, 2007 (5) - Rocas - São Pedro e São 2001 2005 Paulo Areas of Revelant Ecological Interest (ARIE)
ARIE – SP Arie Ilhas da Queimada Decr. n. 91,887, Nov. 05, 1985 Marine Yes** No Sept. 27, 2007 (1) Pequena e Queimada Grande 2012 Ecological Stations (ESEC)
ESEC – PR Esec de Guaraqueçaba Decr. n. 87,222, May 31, 1982/ Marine Yes No May 31, 2011 (1) Expanded by Decr. n. 93,053, July 31, 2012 1986 ESEC – RJ Esec de Tamoios Decr. n. 98,864, Jan. 23, 1990 Marine Yes Yes July 25, 2012 (2) 2002 2006
24 ESEC – SP Esec de Tupinambás Decr. n. 94,656, July 20, 1987 Marine Yes No April 23, 2010 (3) 2006 ESEC – SP Esec de Tupiniquins Decr. n. 92,964, July 21, 1986 Marine Yes** Yes Sept. 27, 2007 (4) 2012 2010 Natural Monuments (MONA)
MONA – Ilhas Cagarras National Law n. 12,229, April 13, 2010 Marine Yes** No Aug. 23, 2010 RJ Monument 2010 (1) National Parks (PARNA)
PARNA – Restinga de Jurubatiba Decr. dated April 29, 1998 Marine Yes Yes Sept. 27, 2007 RJ National Park 2002 2008 (1) PARNA – Jericoacoara National Park Decr. dated Feb. 4, 2002 Marine Yes Yes Nov. 29, 2007 CE 2002 2002 (2) PARNA – Superagui National Park Decr. n. 97,688, April 25, 1989 / Decr. Marine Yes No Dec. 04, 2007 PR n. 9,513, Nov. 20, 1997 2006 (3) PARNA – Lençois Maranhenses Decr. n. 86,060, June 2, 1981 Marine No Yes Nov. 29, 2007 MA National Park 2003 (4) PARNA – Ilhas dos Currais Marine LEI n. 12,829, June 20, 2013 Marine No No July 11, 2013 PR National Park (5) PARNA – Fernando de Noronha Marine Decr. n. 96,693, Sept. 14, 1988 Marine Yes Yes* Nov. 29, 2007 PE National Park 2001 1990 (6)
25 PARNA – Abrolhos Marine National Decr. n. 88,218, April 6, 1983 Marine Yes Yes Nov. 29, 2007 BA Park 2002 1991 (7) Biological Reserves (REBIO)
REBIO – Rebio Atol das Rocas Decr. n. 83,549, June 5, 1979 Marine No Yes Nov. 29, 2007 RN 2009 (1) REBIO – Rebio de Comboios Decr. n. 90,222, Sept. 25, 1984 Marine No Yes Nov. 30, 2007 ES 1997 (2) REBIO – Rebio Marinha do Arvoredo Decr. n. 99,142, March 12, 1990 Marine Yes Yes Nov. 29, 2007 SC 2004 2004 (3) Extractive Reserves (RESEX)
RESEX – Resex Acaú-Goiana Decr. dated Sept. 26, 2007 Marine No No April 27, 2011 PB e PE (1) RESEX - Resex Marinha Arraial do Decr. dated Jan. 3, 1997 Marine Yes** No Sept. 26, 2007 RJ Cabo 2010 (2) RESEX – Resex Marinha Baia de Decr. dated Aug. 11, 2000 / Marine Yes No Sept. 26, 2007 BA Iguape Boundaries revised by Law n. 12,058, 2009 (3) Oct. 13, 2009 RESEX – Resex do Batoque Decr. dated June 5, 2003 Marine Yes No Sept. 24, 2007 CE 2012 (4) RESEX – Resex de Cassurubá Decr. dated June 5, 2009 Marine Yes** No April 23, 2010
26 BA 2012 (5) RESEX – Resex Corumbau Decr. dated Sept. 21, 2000 Marine Yes No Sept. 24, 2007 BA 2006 (6) RESEX – Resex de Canavieiras Decr. dated June 5, 2006 Marine Yes No Sept. 24, 2007 BA 2009 (7) RESEX – Resex de Cururupu Decr. dated June 2, 2004 Marine Yes No Mar. 19, 2010 MA 2011 (8) RESEX - PI Resex Marinha do Delta do Decr. dated Nov. 16, 2000 Marine Yes Data not Data not available e MA Parnaíba 2003 available (9) RESEX – Resex Lagoa do Jequiá Decr. dated Sept. 27, 2001 Marine No No April 23, 2010 AL (10) RESEX – Resex Marinha Pirajubaé Decr. n. 533, May 20, 1992 Marine Yes** No Sept. 26, 2007 SC 2011 (11) RESEX – Resex Prainha do Canto Verde Decr. dated June 5, 2009 Marine Yes** No April 23, 2010 CE 2010 (12) Wildlife Refuges (REVIS) REVIS – Revis de Santa Cruz Decr. dated June 17, 2010 Marine Yes No July 16, 2010 ES 2010 (1) REVIS – Revis Ilha dos Lobos Decr. dated July 4, 2005 Marine No No April 23, 2010 RS
27 (2) * Despite appearing on ICMBio Web Site on each Conservation Unit a link entitled "SAIBA MAIS” (More Information Here) indicating that these UC's have no management plan [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/biomas-brasileiros.html], the same ICMBio web site provides a file containing its respective management plan [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/planos-de-manejo/lista-plano-de-manejo.html]. ** Despite appearing on ICMBio Web Site on each Conservation Unit a link entitled "SAIBA MAIS” (More Information Here) indicating that these UC's have no management board [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/biomas-brasileiros.html], the same ICMBio web site provides a file listing the CUs that have management boards [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/conselhos.html]. *** Biome stated in the parameterized report on protected areas - CNUC.
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Annex II – Table 2 – Multilateral environmental conventions and the protection of marine biodiversity Conventions Brazil Precautionary principle Convention on Nature Protection and Wild Life Ratification – Decr. n. 3, 1948 It does not expressly incorporates this principle. It determines, however, that Preservation in the Western Hemisphere (1940) Entry into force – Decr. n. countries adopt appropriate measures to prevent the extinction that threatens a 58,054, dated March 23, 1966 species (Article VII), such as the creation of protected areas (Article II).
International Convention for the Conservation of the Ratification – Decr. n. 65,026, They do not refer to this principle. Nonetheless, in order to meet the overall Atlantic Tunas (1966) and Additional Protocol (1992); dated August 20, 1969 objective to preserve the shoals of tuna and related species in the Atlantic and adjacent seas, it created the International Commission for the Conservation of the Atlantic Tuna and Related, whose mission is to scientifically point the levels that allows the maximum sustainable capture of protected species (Articles IV and VI). The precautionary principle must be observed in this task, as well as the definition of criteria, limits and parameters for its fishing that were not outlined in the convention.
Convention on Wetlands of International Importance, Approval – Decr. n. 1,905, They do not expressly mention this principle, but its implementation is of especially as Waterfowl Habitat - Ramsar (1971) and dated May 16, 1996 utmost importance for the conservation of marine species at risk, as it provides its Protocol (1982); special protection for their habitats, including coral reefs, mangroves and estuaries. Convention on International Trade in Endangered Ratification – Decr. n. 54, 1975 It does not explicitly refer to this principle. However, it provides in articles I, Species of Wild Fauna and Flora - CITES - Washington Entry into force – Decr. n. II, XV and XVI the mechanism of national lists of threatened species due to (1973) and Amendment to Article XXI (1983); 76,623, 1975 international trade, based on the relationships contained in the Convention Appendices. The purpose of these lists is to guide both the systems of licenses and certificates for exploitation of these species, as well as to provide subsidies to related public policies. The procedure for amending the Appendices of the Convention, promoted by any State party should meet to Article XV, paragraph 2, letter "b", which gives special treatment to marine species. There is here a possible application of the principle, as the change is conditional on the recovery of the species, which must be scientifically evidenced by the country, which should resort to precaution in cases of scientific uncertainty. As a measure of precaution, the Secretariat of the Convention shall also consult intergovernmental bodies that have a function related to such species, in order to gather the information that will support a joint decision made by the parties.
29 Convention on the Conservation of Migratory Species Signed in 1979. It makes no direct reference to this principle. However, CMS Resolution 4.4 of Wild Animals - CMS (1979) and Agreement on the Approval – Decr. n. 387, dated (1994), which deals with the development strategy of the Convention, states Conservation of Albatrosses and Petrels; Oct. 15, 2013 the commitment of the parties to incorporate it in the implementation of the Convention, which is reaffirmed in subsequent documents. United Nations Convention on the Law of the Sea - Ratification – Decr. n. 1,530, There is in its text the term "precaution" (Articles 23 and 115), when it refers UNCLOS (1982); dated June 22, 1995 to the maritime transport of nuclear or other inherently dangerous or noxious substances, and also the prevention of damage to submarine cables and pipelines, requiring the ship owners to take all reasonable precautionary measures to avoid such damages. With regard to environmental protection and the conservation of habitats and species, there is no reference to the principle. However, the commitments made by the parties denote the duty of prevention in the broad sense, requiring the parties to adopt precautionary measures against known or potential risks (items 21, 1, "f", 39, 2, "b", 42, 1, "b", 43, 79, 196, among others).
Convention on Biological Diversity - CBD (1992) and Ratification – Decr. n. 2, dated It acknowledges that “[...] where there is a threat of significant reduction or Cartagena Protocol on Biosafety (1996) Feb. 8, 1994 loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat” (Preamble). UN Framework Convention on Climate Change - Ratification – Decr. n. 1, dated It acknowledges that “the Parties should take precautionary measures to UNFCCC (1992) and Kyoto Protocol (1997). Feb. 3, 1994 anticipate, prevent or minimize the causes of climate change and mitigate its Entry into force – Decr. n. adverse effects. Where there are threats of serious or irreversible damage, lack 2,652, dated July 1, 1998 of full scientific certainty should not be used as a reason for postponing such Ratification – Decr. n. 144, measures, taking into account that policies and measures to deal with climate 2002 change should be cost-effective so as to ensure global benefits at the lowest possible cost”. (Article 3, n. 3). Inter-American Convention for the Protection and Ratification – Decr. n. 3,842, There is no mention of this principle. However, it provides that each Party Conservation of Sea Turtles (1996) dated Jun. 13, 2001 shall take appropriate and necessary measures, based on the best scientific evidence available for the protection, conservation and recovery of sea turtle populations and their habitats. It specifies that such measures include " The promotion of efforts to enhance sea turtle populations (…) without putting sea turtles at risk" (art. IV, 2, f).
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Annex III
Table 3.1) Federal Protected Marine Areas in Brazil and Protected Endangered Species – Sustainable Use CU Type of Name of CU List of endangered species protected in this conservation unit Management Date of CU and Foundation year Plan information State certification by the managing body Sustainable Use Conservation Units:: APA (12), ARIE (3), RESEX (24) = 39 Environmental Protection Areas (APA) – Total 12 (3 without management plans, and 9 with management plans) APAs without management plans APA – ES APA Costa das Algas Leatherback sea turtle - Dermochelys coriacea – Vulnerable (VU) No Jul. 16, 2010 (1) 2010 APA – SC APA da Baleia Franca Southern right whale - Eubalaena australis - Least Concern (LC) No Sep. 27, 2007 (2) 2000 APA – SC APA de Anhatomirim Loggerhead sea turtle - Caretta caretta – Endangered (EN) No Sep. 27, 2007 (3) 1992 Green sea turtle - Chelonia mydas - Endangered (EN) Restinga tyrannulet - Phylloscartes kronei - Vulnerable (VU) La Plata dolphin - Pontoporia blainvillei - Vulnerable (VU) APAs with management plans APA – PB APA da Barra do Rio Mamanguape Atlantic goliath grouper - Epinephelus itajara - Critically Endangered (CR) Yes* Apr, 12, 2010 (4) 1993 West Indian manatee -Trichechus manatus - Vulnerable (VU) Seahorse -Hippocampus sp - Data Deficient (DD) Ucides -Ucides cordatus – Least Concern (LC) APA – PE APA da Costa dos Corais Green sea turtle - Chelonia mydas - Endangered (EN) Yes* Sep. 27, 2007 e AL 1997 Neon goby - Elacatinus fígaro – Not in IUCN Red List (5) Hawksbill sea turtle - Eretmochelys imbricata- Critically Endangered (CE) Sea ginger - Millepora alcicornis - Least Concern (LC) West Indian manatee - Trichechus manatus - - Vulnerable (VU)
31 APA – RJ APA de Cairuçu White-necked hawk - Leucopternis lacernulatus - Vulnerable (VU) Yes Apr. 23, 2010 (6) 1983 Southern muriqui - Brachyteles arachnoides - Endangered (EN) Buffy-tufted marmoset - Callithrix aurita - Vulnerable (VU) Oncilla - Leopardus tigrinus - Vulnerable (VU) Green sea turtle - Chelonia mydas - Endangered (EN) Sea ginger - Millepora alcicornis - Least Concern (LC) Black-capped piprites - Piprites pileata - Vulnerable (VU) Sea catfish - Richogenes longipinnis – Not in IUCN Red List Brown-backed parrotlet - Touit melanonotus - Endangered (EN) Crowned solitary eagle - Harpyhaliaetus coronatus - Endangered (EN) APA – SP APA de Cananéia-Iguape-Peruíbe Green sea turtle - Chelonia mydas - Endangered (EN) Yes* Mar. 26, 2010 (7) 1985 Crowned solitary eagle - Harpyhaliaetus coronatus - Endangered (EN)
APA – PE APA de Fernando de Noronha - Island hogfish - Bodianus insularis - Least Concern (LC) Yes Sep. 27, 2007 (8) Rocas - São Pedro e São Paulo Piracanjuba - Anthias salmopunctatus - Vulnerable (VU) 1986 Green sea turtle - Chelonia mydas - Endangered (EN) Sea fans - Phyllogorgia dilatata - Not in IUCN Red List Butterflyfish - Prognathodes obliquus - Data Deficient (DD) Donzela-de-São-Pedro-e-São-Paulo - Stegastes sanctipauli - Vulnerable (VU) APA – RJ APA de Guapimirim Blue spiny starfish - Coscinasterias tenuispina - Not in IUCN Red List Yes Apr. 23, 2010 (9) 1984 APA – PR APA de Guaraqueçaba Black-fronted piping guan - Aburria Jacutinga - Endangered (EN) Yes* Apr. 12, 2010 (10) 1985 Red-tailed parrot - Amazona brasiliensis- Vulnerable (VU) White-necked hawk - Leucopternis lacernulatus - Vulnerable (VU) Black-headed berryeater - Carpornis melanocephala - Vulnerable (VU) Purple-winged ground dove - Claravis godefrida - Critically Endangered (CE) Neon goby - Elacatinus fígaro - Not in IUCN Red List Black-faced lion tamarin - Leontopithecus caissara - Critically Endangered (CE) Fasciated tiger heron - Tigrisoma fasciatum - Least Concern (LC) APA – AL APA de Piaçabuçú Olive ridley sea turtle - Lepidochelys olivácea - Vulnerable (VU) Yes* Sep. 27, 2007 (11) 1983 APA – PI, APA Delta do Parnaíba Maranhão red-handed howler -Alouatta belzebul ululata - Not in IUCN Red List Yes* Apr. 27, 2011 MA e CE 1996 Smalltooth sawfish - Pristis pectinata - Critically Endangered (CE)
32 (12) Areas of Revelant Ecological Interest (ARIE) – Total 3 (2 without management plans, and 1 with a management plan)
ARIEs without management plans ARIE – SP Arie Ilha do Ameixal There is no data available on the web site and they are unaware of the possible No Sep. 27, 2007 (13) 1985 species that would be under threat. ARIE – SP Arie Ilhas da Queimada Pequena e Golden lancehead - Bothropoides insularis - Critically Endangered (CE) No Sep. 27, 2007 (14) Queimada Grande Green sea turtle - Chelonia myda- Not in IUCN Red List 1985 Ilha-da-Queimada-Grande snake - Dipsas albifrons cavalheiroi - Not in IUCN Red List Hawksbill sea turtle - Eretmochelys imbricata - Critically Endangered (CE) La Plata dolphin - Pontoporia blainvillei - Vulnerable (VU) Angel shark - Squatina oculta - Endangered (EN) Angular angel shark - Squatina guggenheim - Endangered (EN) Royal tern - Thalasseus maximus - Least Concern (LC) ARIE with a management plan ARIE – PB Arie Manguezais da Foz do Rio Blue land crab - Cardisoma guanhumi - Not in IUCN Red List Yes* Dec. 04, 2007 (15) Mamanguape Ucides - Ucides cordatus Least Concern (LC) 1985 Spiny lobster - Panulirus argus - Data Deficient (DD) Green Cape lobster - Panulirus laevicauda - Data Deficient (DD) Pink shrimp - Farfantepenaeus brasiliensis - Not in IUCN Red List Pink shrimp - Farfantepenaeus paulensis - Not in IUCN Red List Pink shrimp - Farfantepenaeus subtilis - Not in IUCN Red List White shrimp - Litopenaeus schmitti - Not in IUCN Red List Atlantic seabob - Xiphopenaeus kroyeri - Not in IUCN Red List Blue crab - Callinectes sapidus - Not in IUCN Red List Extractive Reserves (RESEX) - Total 24 (23 without management plans, and 1 with a management plan)
RESEX without a management plan RESEX – Resex de São João da Ponta West Indian manatee - Trichechus manatus- Vulnerable (VU) No Jun. 22, 2010 PA 2002
33 (16)
RESEX – Resex Mãe Grande de Curuçá West Indian manatee - Trichechus manatus - Vulnerable (VU) No Sep. 25, 2007 PA 2002 (17) RESEX – Resex Acaú-Goiana No Apr. 27, 2011 PB e PE 2007 (18) RESEX – Resex Marinha Araí Peroba No Sep. 26, 2007 PA 2005/2014 (19) RESEX - Resex Marinha Arraial do Cabo Neon goby - Elacatinus figaro - Not in IUCN Red List No Sep. 26, 2007 RJ 1997 Sea ginger Millepora alcicornis - Least Concern (LC) (20) Sea urchin - Paracentrotus gaimardi - Not in IUCN Red List Sea fans - Phyllogorgia dilatata - Not in IUCN Red List Cachalot - Physeter microcephalus - Vulnerable (VU) Royal tern - Thalasseus maximus - Least Concern (LC) RESEX – Resex Marinha Baia de Iguape No Sep. 26, 2007 BA 2000/2009 (21) RESEX – Resex do Batoque No Sep. 24, 2007 CE 2003 (22) RESEX – Resex de Cassurubá No Apr. 23, 2010 BA 2009 (23) RESEX – Resex Chocoaré- Mato Grosso West Indian manatee - Trichechus manatus - Vulnerable (VU) No Sep. 24, 2007 PA 2002 (24) RESEX – Resex Corumbau Neon goby - Elacatinus figaro - Not in IUCN Red List No Sep. 24, 2007
34 BA 2000 Sea ginger - Millepora alcicornis - Least Concern (LC) (25) Sea fan - Phyllogorgia dilatata - Not in IUCN Red List RESEX – Resex de Canavieiras No Sep. 24, 2007 BA 2006 (26) RESEX – Resex de Cururupu No Mar. 19, 2010 MA 2004 West Indian manatee - Trichechus manatus - Vulnerable (VU) (27) RESEX - PI Resex Marinha do Delta do Parnaíba Data not Data not e MA 2000 Red-handed howler - Alouatta belzebul ululata - Not in IUCN Red List available available (28) RESEX – Resex Marinha de Gurupi-Piriá No Sep. 26, 2007 PA 2005 (29) RESEX – Resex Lagoa do Jequiá No Apr. 23, 2010 AL 2001 (30) RESEX – Resex Maracanã West Indian manatee - Trichechus manatus - Vulnerable (VU) No Sep. 25, 2007 PA 2002 (31) RESEX – Resex Marinha Cuinarana No *** PA 2014 (32) RESEX – Resex Marinha Mestre Lucindo No *** PA 2014 (33) RESEX – Resex Marinha Mocapajuba No *** PA 2014 (34)
35 RESEX – Resex Marinha de Tracuateua No Mar. 12, 2010 PA 2005 (35) RESEX – Resex Marinha Pirajubaé No Sep. 26, 2007 SC 1992 (36) RESEX – Resex Prainha do Canto Verde No Apr. 23, 2010 CE 2009 (37) RESEX – Resex Marinha de Soure West Indian manatee - Trichechus manatus - Vulnerable (VU) No Apr. 23, 2010 PA 2001 (38) Resex with a management plan RESEX – Resex Marinha de Caeté-Taperaçu 1. Promote the conservation of mangrove ecosystems, salt marshes Yes* Sep. 26, 2007 PA 2005 (restingas), beaches, islands, grasslands and apicum zones, through the (39) maintenance of ecological processes.; 2. Keep populations of marine species relevant to the RESEX extractive population, especially fish, crustaceans (shrimp, crab) and shellfish (mussels, clams); 3. Protect the wild populations of flora and fauna, native, resident or migratory, ecologically relevant; 4. Protect river basins and watercourses of the rivers Caeté, Maniteua, Taperaçu and Igarapé do Araí, as well as their headwaters, water channels and ponds, the territorial sea, estuaries, and other water bodies; Several species, being the pink river dolphin and the manatee the most threatened ones. In addition to birds, plant species, reptiles and other land mammals, and fish.
36
Table 3.2) Federal Protected Marine Areas in Brazil and Protected Endangered Species - Full Protection CU Type of Name of CU List of endangered species protected in this conservation unit Management Date of CU and Foundation year plan information State certification by the managing body Full Protection CU: ESEC (8), MONA (1), PARNA (9), REBIO (4), REVIS (2) = 24 Ecological Station (ESEC) – Total 8 (4 without management plans, and 4 with management plans)
ESECs without management plans ESEC – PR Esec de Guaraqueçaba Red-tailed parrot - Amazona brasiliensis - Vulnerable (VU) No May 31, 2011 (40) 1986 ESEC – AP Esec de Maracá-Jipioca Jaguar - Panthera onca - Near Threatened (NT) No Nov. 1,2010 (41) 1981 Jaymes's flamingo - Phoenicoparrus jamesi - Near Threatened (NT) Atlantic goliath grouper - (Epinephelus itajara) - Critically Endangered (CR) Scarlet ibis - Eudocimus ruber - Least Concern (LC) ESEC – SP Esec de Tupinambás List of protected endangered species only by e-mail No Apr. 23, 2010 (42) 1987 ESEC – RS Esec do Taim Contact Vinicius No Sep. 27, 2007 (43) 1986 E-mail Ana Carolina List of protected endangered species only by e-mail ESECs with management plans ESEC – RJ Esec da Guanabara Anhinga - Anhinga anhinga - Not in IUCN Red List Yes Sep. 27, 2007 (44) 2006 Fulvous whistling duck - Dendrocygna bicolor - Least Concern (LC) Broad-snouted caiman - Caiman latirostris - Lower Risk/least concern ESEC – SC Esec de Carijós Neotropical otter - Lontra longicaudis- Near Threatened (NT) Yes Sep. 27, 2007 (45) 1987 ESEC – RJ Esec de Tamoios Only birds are listed Yes Jul. 25, 2012
37 (46) 1990 (Waiting for e-mail) ESEC – SP Esec de Tupiniquins Green sea turtle - Chelonia mydas - Endangered (EN) Yes Sep. 27, 2007 (47) 1986 hawksbill sea turtle - Eretmochelys imbricata- Critically Endangered (CE) Natural Monument (MONA) – 1 without a management plan
MONA without a management plan MONA – Monumento Natural das Ilhas There is erroneous information on the web site. It still does not have a No Aug. 23, 2010 RJ Cagarras management plan nor a list of protected endangered species (48) 2010 National Park (PARNA) - Total 9 (2 without management plans, and 7 with management plans)
PARNAs without management plans PARNA – Parna do Superagui Red-tailed parrot - Amazona brasiliensis - Vulnerable (VU) No Dec. 04, 2007 PR 1989/1997 White-necked hawk - Leucopternis lacernulatus - Vulnerable (VU) (49) Black-headed berryeater - Carpornis melanocephala - Vulnerable (VU) Yellow-legged tinamou - Crypturellus noctivagus noctivagus - Near Threatened (NT) Black-faced lion tamarin - Leontopithecus caissara - Critically Endangered (CE) Sea urchin - Paracentrotus gaimardi- Not in IUCN Red List Cougar - Puma concolor capricornensis - Least Concern(LC) Royal tern - Thalasseus maximus - Least Concern (LC)
PARNA – Parque Nacional Marinho das Ilhas Red-tailed parrot - Amazona brasiliensis - Vulnerable (VU) No Jul. 11, 2013 PR dos Currais White-necked hawk - Leucopternis lacernulatus - Vulnerable (VU) (50) 2013 Black-headed berryeater - Carpornis melanocephala - Vulnerable (VU) Yellow-legged tinamou - Crypturellus noctivagus noctivagus - Near Threatened (NT) Black-faced lion tamarin - Leontopithecus caissara - Critically Endangered (CE) Sea urchin - Paracentrotus gaimardi - Not in IUCN Red List Cougar - Puma concolor capricornensis - Least Concern(LC) Royal tern - Thalasseus maximus - Least Concern (LC)
38 PARNAs with management plans PARNA – Parna da Lagoa do Peixe Cinereous harrier - Circus cinereus - Least Concern (LC) Yes Jul. 11, 2012 RS 1986 Olrog's gull - Larus atlanticus - Near Threatened (NT) (51) Dot-winged crake - Porzana spiloptera - Vulnerable (VU) Royal tern - Thalasseus maximus - Least Concern (LC) PARNA – Parna da Restinga de Jurubatiba Green sea turtle - Chelonia mydas - Endangered (EN) Yes Sep. 27, 2007 RJ 1998 (52) Whiptail lizard - Cnemidophorus littoralis - Not in IUCN Red List
Royal tern - Thalasseus maximus - Least Concern (LC) PARNA – Parna de Jericoacoara Loggerhead sea turtle - Caretta caretta - Endangered (EN) Yes Nov. 29, 2007 CE 2002 Hawksbill sea turtle - Eretmochelys imbricata - Critically Endangered (CE) (53) Olive ridley sea turtle - Lepidochelys olivacea- Vulnerable (VU) Onça-parda - Puma concolor greeni - Least Concern(LC) PARNA– Parna do Cabo Orange Oncilla - Leopardus tigrinus - Vulnerable (VU) Yes Apr. 27, 2011 AP 1980 Black bearded saki - Chiropotes satanás - Critically Endangered (CE) (54) Green sea turtle - Chelonia mydas - Endangered (EN) Giant anteater - Myrmecophaga tridactyla - Vulnerable (VU) Jaguar - Panthera onca - Near Threatened (NT) Smalltooth sawfish - Pristis pectinata - Critically Endangered (CE) Giant armadillo - Priodontes maximus- Vulnerable (VU) West Indian manatee - Trichechus manatus - Vulnerable (VU) Amazonian manatee - Trichechus inunguis- Vulnerable (VU) PARNA – Parna dos Lençóis Maranhenses Oncilla - Leopardus tigrinus- Vulnerable (VU) Yes Nov. 29, 2007 MA 1981 Sponge - Corvoheteromeyenia heterosclera- Not in IUCN Red List (55) Royal tern - Thalasseus maximus - Least Concern (LC)
PARNA – Parna Marinho de Fernando de Loggerhead sea turtle - Caretta caretta - Endangered (EN) Yes* Nov. 29, 2007 PE Noronha Green sea turtle - Chelonia mydas - Endangered (EN) (56) 1988 Noronha elaenia - Elaenia ridleyana- Vulnerable (VU) Common starfish - Asterias Rubens - Not in IUCN Red List Slate pencil urchin - Eucidaris tribuloides - Not in IUCN Red List
39 Hawksbill sea turtle - Eretmochelys imbricata - Critically Endangered (CE) Crab - Johngarthia lagostoma Least Concern (LC) Olive ridley sea turtle - Lepidochelys olivacea- Vulnerable (VU) Sea ginger - Millepora alcicornis - Least Concern (LC) Lemon shark - Negaprion brevirostris - Near Threatened (NT) Red-billed tropicbird - Phaethon aethereus - Least Concern (LC) Crab -Percnon gibbesii - Least Concern (LC) Sea fan - Phyllogorgia dilatata - Not in IUCN Red List White-tailed tropicbird - Phaethon lepturus - Least Concern (LC) Audubon's shearwater - Puffinus lherminieri- Least Concern (LC) Noronha vireo - Vireo gracilirostris - Near Threatened (NT) PARNA – Parna Marinho dos Abrolhos Giant anemone - Condylactis gigantea - Not in IUCN Red List Yes Nov. 29, 2007 BA 1983 Starfish - Coscinasterias tenuispina - Not in IUCN Red List (57) Starfish - Echinaster (Othilia) guyanensis - Not in IUCN Red List Neon goby - Elacatinus fígaro - Not in IUCN Red List Slate pencil urchin - Eucidaris tribuloides - Not in IUCN Red List Southern right whale - Eubalaena australis - Least Concern (LC) Sea ginger - Millepora alcicornis - Least Concern (LC) Cookie dough sea cucumber - Isostichopus badionotus - Least Concern (LC) Lemon shark - Negaprion brevirostris - Near Threatened (NT) Starfish - Narcissia trigonaria - Not in IUCN Red List Starfish - Oreaster reticulatus - Not in IUCN Red List Red-billed tropicbird - Phaethon aethereus - Least Concern (LC) Sea fan - Phyllogorgia dilatata - Not in IUCN Red List White-tailed tropicbird - Phaethon lepturus - Least Concern (LC) Biological Reserves (REBIO) - Total 4 (1 without a management plan, and 3 with management plans) REBIO without a management plan REBIO – SE Rebio de Santa Isabel Hawksbill sea turtle - Eretmochelys imbricata - Critically Endangered (CE) No Nov. 10, 2014 (58) 1988 REBIOs with management plans REBIO – RN Rebio Atol das Rocas Loggerhead sea turtle - Caretta caretta – Endangered (EN) Yes Sep. 27, 2007 (60) 1979 Green sea turtle - Chelonia mydas- Endangered (EN)
40 Starfish - Echinaster (Othilia) guyanensis Not in IUCN Red List Hawksbill sea turtle - Eretmochelys imbricata - Critically Endangered (CE) Crab - Johngarthia lagostoma- Least Concern (LC) Sea ginger - Millepora alcicornis- Least Concern (LC) Lemon shark - Negaprion brevirostris- Near Threatened (NT) Red-billed tropicbird - Phaethon aethereus- Least Concern (LC) Crab -Percnon gibbesii- Least Concern (LC) Sea fan - Phyllogorgia dilatata-- Not in IUCN Red List White-tailed tropicbird - Phaethon lepturus- Least Concern (LC) REBIO – ES Rebio de Comboios Red-browed amazon - Amazona rhodocorytha- Endangered (EN) Yes Nov. 30, 2007 (60) 1984 Ant - Atta robusta - Not in IUCN Red List Maned sloth - Bradypus torquatus- Vulnerable (VU) Whiptail lizard - Cnemidophorus nativo - Not in IUCN Red List Jaguar - Panthera onca- Near Threatened (NT) REBIO – SC Rebio Marinha do Arvoredo Starfish - Asterina stellifera - Not in IUCN Red List Yes Nov. 29, 2007 (61) 1990 Starfish - Astropecten brasiliensis - Not in IUCN Red List Starfish - Astropecten marginatus - Not in IUCN Red List Loggerhead sea turtle - Caretta caretta– Endangered (EN) Cylinder anemone - Cerianthomorphe brasiliensis - Not in IUCN Red List Green sea turtle - Chelonia mydas- Endangered (EN) Starfish - Coscinasterias tenuispina - Not in IUCN Red List Neon goby - Elacatinus fígaro - Not in IUCN Red List Slate pencil urchin - Eucidaris tribuloides - Not in IUCN Red List Southern right whale - Eubalaena australis- Least Concern (LC) Hawksbill sea turtle - Eretmochelys imbricata- Critically Endangered (CE) Cookie dough sea cucumber - Isostichopus badionotus-- Least Concern (LC) Cookie dough sea cucumber - Lepidochelys olivacea- Vulnerable (VU) Narrownose smooth-hound - Mustelus schmitti- Endangered Minyocerus angustus - Not in IUCN Red List Starfish - Narcissia trigonaria - Not in IUCN Red List Sea urchin - Paracentrotus gaimardi - Not in IUCN Red List Starfish - Oreaster reticulatus - Not in IUCN Red List La Plata dolphin - Pontoporia blainvillei - Not in IUCN Red List White-chinned petrel - Procellaria aequinoctialis- Vulnerable (VU)
41 Atlantic yellow-nosed albatross - Thalassarche chlororhynchos- Endangered (EN) Black-browed albatross - Thalassarche melanophris - Near Threatened (NT) Wildlife Refuges (REVIS) - Total 2 (2 without management plans) REVIS without management plans REVIS – ES Revis de Santa Cruz Nonexistent list. No Jul. 16, 2010 (62) 2010 Although the parameterized form states that Ms. Kelly Bonach is the director, this There is a link on position is currently held by Ms. Lígia Coser. the web site, where it is stated Ms. Lígia has confirmed that in spite of the fact that the conservation unit has no that there is no list of protected endangered species, ongoing studies are being carried out by the management Federal University of Espírito Santo. plan.
The parametric form also states that there is no management plan. REVIS – RS Revis Ilha dos Lobos La Plata dolphin - Pontoporia blainvillei-- Vulnerable (VU) No Apr. 23, 2010 (63) 2005 There is a link on the web site, where it is stated that there is no management plan.
The parametric form also states that there is no management plan.
42 * Despite appearing on ICMBio Web Site on each Conservation Unit a link entitled "SAIBA MAIS” (More Information Here) indicating that these UC's have no management plan [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/biomas-brasileiros.html], the same ICMBio web site provides a file containing the corresponding management plans [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/planos-de-manejo/lista-plano-de-manejo.html]. ** Despite appearing on ICMBio Web Site on each Conservation Unit a link entitled "SAIBA MAIS” (More Information Here) indicating that these UC's have no management board [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/biomas-brasileiros.html], the same ICMBio web site provides a file listing the CUs that have management boards [http://www.icmbio.gov.br/portal/biodiversidade/unidades-de-conservacao/conselhos.html]. *** Recently created extractive marine reserves, with no information posted to the ICMBio site.
43 Table 3.3) Protected Marine Areas in the State of São Paulo (Brazil) and Protected Endangered Species Type Name of CU List of endangered species protected in this conservation unit Management Date of information of CU Foundation year plan certification by the managing body Sustainable Use Coservation Units Environmental Protection Areas (APA) APA APA Marinha do Litoral Norte Nonexistent list. No Mar. 11, 2011 (1) 2008 The managing board was contacted and Ms. Paula said there is a lack of scientific data on the species of the region, so the list of priority species for management (and not the endangered ones) will be a subproduct of the management plan, whose production has been suspended. The contract with the bidding winner consortium was canceled as its technical reports were not approved neither by the managing board nor by the Forestry Foundation, due to their low quality. It was mentioned that in the preparation of the participatory diagnosis, there was a previous survey of the species in the view of the users of natural resources in APA.
APA APA Marinha do Litoral Centro Nonexistent list. No Apr. 15, 2013 (2) 2008 The managing board was contacted and a monitor called Pedro answered, as the manager was on medical leave. He said that there is not a list, and that some species have been identified when the technical diagnosis performed by the contractor consortium for the management plan. However this document cannot be displayed, as it has not been approved. Due to a Conduct Adjustment Agreement between the State Environmental Secretariat and Petrobras regarding the licensing for installing a duct in Merluza field, two environmental assessments were carried out by a Petrobras contractor, which resulted in the survey of some species (he could not tell whether they are endangerd) in the areas of special management of Laje da
44 Conceição (Itanhaém) and Ilha da Moela (Guaruja).
APA APA Marinha do Litoral Sul No Mar. 11, 2011 (3) 2008 Areas of Revelant Ecological Interest (ARIE) ARIE ARIE do Guará No Mar. 11, 2011 (1) 2008 ARIE ARIE de São Sebastião No Mar. 11, 2011 (2) 2008 Extractive Reserves (RESEX) RESEX RESEX Ilha do Tumba No May 19, 2011 (1) 2008 Full Protection Conservation Unit State Marine Parks (PME) PE Parque Marinho Estadual de Laje de No data available on the Forestry Foundation website. No*** May 30, 2012 (1) Santos 1993 Information obtained in the Emergency Plan for Public Use, based on the literature (Fields FR, et al., 2007), which classifies them as endangered, near threatened, vulnerable and not threatened:
MARINE BIRDS Brown booby - Sula leucogaster- Least Concern (LC) Kelp gull - Larus dominicanus- Least Concern (LC) South American tern - Sterna hirundinacea - Least Concern (LC) Sandwich tern - Thalasseus sandvicensis - Least Concern (LC) Royal tern - Thalasseus maximus - Least Concern (LC) Black-browed albatross - Thalassarche melanophris - Near Threatened (NT) Atlantic yellow-nosed albatross - Thalassarche chlororhynchos- Endangered (EN)
45 Great shearwater - Puffinus gravis - - Least Concern (LC) Wilson's storm petrel - Oceanites oceanicus - Least Concern (LC) Magnificent frigatebird - Fregata magnificens- Least Concern (LC) Magellanic penguin - Spheniscus magellanicus - Near Threatened (NT) Great skua - Catharacta skua - - Least Concern (LC) Snowy egret - Egretta thula- Least Concern (LC) Purple gallinule - Porphyrio martinica - Least Concern (LC) Black vulture - Coragyps atratus - Least Concern (LC) Smooth-billed ani - Crotophaga ani - Least Concern (LC) Sayaca tanager - Thraupis sayaca- Least Concern (LC) Southern giant petrel - Macronectes giganteus - Least Concern (LC) Cape petrel - Daption capense - Least Concern (LC) Manx shearwater - Puffinus puffinus - Least Concern (LC) Common tern - Sterna hirundo- Least Concern (LC)
FISH Common thresher - Alopias vulpinus - Vulnerable (VU) Spotted eagle ray - Aetobatus Narinari- Near Threatened (NT) Eel - Anguilla anguilla - Critically Endangered (CE) Moray eel (moreia) - Dietes iridioides – Not in IUCN Red List Monkfish - Multiocellatus Anten - Not in IUCN Red List Trumpetfish - Aulostomus maculatus - Not in IUCN Red List Argentine sea bass - Acanthistius Brasilianus - Not in IUCN Red List Rapurata-mero - Acanthistius patachonicus - Not in IUCN Red List Brazilian flamefish - Apogon americanos - Not in IUCN Red List Twospot cardinalfish - Apogon pseudomaculatus - Least Concern (LC) Black margate - Anisotremus surinamensis - Not in IUCN Red List This framework was built from the information obtained from the National Register of Protected Areas - http://www.mma.gov.br/areas-protegidas/cadastro-nacional-de-ucs/consulta-por-uc. It was considered the protected areas of the State of São Paulo, whose protected biome stated in parameterized forms was the marine one. However, there are protected areas whose purpose is the protection of the marine ecosystem - such as the State Park Xixová-Japuí - or large lands of mangroves - as the Sustainable Development Reserve Itapanhapima – as information found on the Forest Foundation website. These, however, were not analyzed in this frame. *** There is only an emergency plan for public use that was approved in 2013, according to the information obtained in the field research.
46
Annex IV - Table 4 - National Action Plans for the Conservation of Marine Biome Endangered Species Action plan Year Taxonomic group Implementation Planning to minimize threats phase Precautionary principle Albatrosses and 2012 Birds 3rd year Only mitigation measures to avoid the capture of birds in longline fisheries. Petrels It is considered that limitations of fishing rights should only be applied in extreme cases. La Plata dolphin 2010 Mammals 3rd year The establishment of fishing exclusion areas for the use of gill nets, as well as the creation of protected areas within the preferential distribution limit of the populations of the species should be considered as habitat protection alternative aimed at their conservation" It also proposes the exclusion of any human action of high environmental impact, such as seismic activities, oil exploitation activities and large vessel traffic, from areas of preferential use of La Plata dolphin. Sirenians 2010 Mammals 3rd year Articulate with ICMBio and the Ministry for the Environment the publication of normative instruction with areas of temporary and permanent restriction for exploitation and production of hydrocarbons in manatee occurrence areas. Develop recommendations for enterprises / activities in priority areas for the manatee and recommend specific monitoring." Articulate the manatee conservation actions with the actions planned for the coastal management and the Orla Project. Verify the risk of contamination by the waste present in marambaias de latão in Ceara coastline. Articulate with the Attorney General the withdrawal of shrimp farming projects, the identification of areas to be recovered, the setting of deadlines and the fulfillment of necessary formalities for compliance with MMA Normative Instruction n. 3 from April/2008 in CUs where manatee are found. Large cetaceans 2009 Mammals 1st year Using the "precautionary principle", IBAMA incorporated standards for the oil licensing in 2003, and pinnipeds banning in this area seismic activity during the breeding season of the humpback whale, from July to November. (Engel et al. 2004) (p . 66). Small cetaceans 2010 Mammals 3rd year Develop a protocol for assessment and monitoring of impacts of projects / activities located in coastal and ocean environment on small cetaceans. Articulate the creation of fishing exclusion areas.
Sea turtles 2010 Reptiles 2nd year Study and propose areas and periods, by region, in which fishery is restricted. Create and make available tools indicating the relevant areas, gaps in knowledge, guidelines, criteria, parameters and procedures to be applied in the licensing of the main types of enterprises. Insert in licensing agencies, mechanisms to guide procedures for consulting the ICMBio / TAMAR in the licensing process and environmental monitoring to be carried out in priority areas
47 for conservation of sea turtles. Sharks 2014 Fish In preparation Reef 2015 Invertebrates and In preparation fish Source: National Plans of Action for the Conservation of Endangered Species (PAN) - http://www.icmbio.gov.br/portal/biodiversidade/fauna-brasileira/planos-de-acao-nacional.html * Amazonian and marine biomes
48
Annex V - Table 5 - Parameters for analyzing the effectiveness of the precautionary principle Directive guidelines for applying the precautionary principle to biodiversity conservation and natural resource management
1) Precautionary principle (explicit legal provision –E – implicit legal provision – I). I – Legal and 2) Provision of other principles. political 3) Concrete measures arising from the principle (General – G, specific – framework clearly E). established 4) Stakeholder participation in decision-making. 5) Information available.
II – Definition of 6) Characterization of uncertain risks. risks, options and 7) Evaluation of options. consequences 8) Definition of responsibilities regarding the provision of information.
III – Creation of 9) Precautionary measures taken and explicit definition of the adapted uncertainties that motivated these measures. precautionary 10) Proportional measures to potential risks. measures 11) Equitable measures.
VI – Effective 12) Adoption of an adaptive vision. implementation
Source: COONEY, Rosie (2004) – Adapted.
49 Annex VI – Jurisprudence
Table 6 - Jurisprudence of the Higher Courts Precautionary principle applied to marine protected areas Period – 200074 to 2015 Courts / Decisions - topics Total number of decisions in Decisions involving marine each higher court protected areas STJ 2 1 TRF 1ª Região 70 4 TRF 2ª Região 13 1 TRF 3ª Região 7 0 TRF 4ª Região 9 1 TRF 5ª Região 16 4 TOTAL 120 11 Keywords and total number of decisions found in research conducted in higher courts 1) “precautionary principle and conservation”, 2) “precautionary principle and conservation unit”, 3) “precautionary principle and species threatened of extinction”, 4) “precautionary principle and endangered species”, 5) “precautionary principle and biodiversity”, 6) “precautionary principle and biological diversity”, 7) “precautionary principle and marine biodiversity”.
74 The oldest decision found was of a public civil case related to the permission to plant transgenic soy “round up ready”. TRF1. Judge Assusete MAGALHÃES. Ac n. 00097852120004010000. Date of Judgement: Aug. 08, 2000.
50 Table 7 - Jurisprudence of the Higher Courts
Precautionary principle fundamentals applied to marine protected areas and endangered species Period – 2000 to 2015 Precautionary principle STJ TRF TRF TRF TRF TRF Total 1 2 3 4 5 Threat to the environment * **** * * **** 11 Threat to human health ** 2 Serious or irreversible damage * **** * * **** 1 Lack of scientific certainty should * * * **** 7 not be considered as a reason for postponing actions Analysis of the actual cost of the measures In dubio pro natura * *** * 5 Cessation of activities * **** * * *** 10 The precautionary principle must * **** * * **** 11 prevail
51