Drummons & Barrps-Platiau, 2006

LAW Drummond Publishing Platiau Original UK and Barros Ltd.
2004 BRAZILIAN ENVIRONMENTAL LAWS 1 28 January 2006 Blackwell 0265-8240 Law & Policy LAPO& Article Oxford, POLICY January Blackwell Publishing Ltd 2006
Brazilian Environmental Laws and Policies, 19342002: A Critical Overview

JOS DRUMMOND and ANA FLVIA BARROS-PLATIAU
This article describes and analyzes major laws, decrees, regulations, resolutions, and institutional mandates linked to environmental protection policies in Brazil, from 1934 to 2002. It argues that many early regulations resulted basically from centralization and planning policies conducted by a development-oriented state. However, it shows that most recent regulations were demanded by a more environmentally aware and more organized civil society, in the context of a more participatory and democratic political framework and improved scientic knowledge and requirements.
I. OBJECTIVES AND METHOD
This text describes and analyzes prominent features and major effects of selected environmental laws and policies issued by the Brazilian federal government between 1934 and 2002. It can be read as an annotated listing of acts that signaled governmental and/or societal concern with the natural environment and natural resources. The swift evolution of the Brazilian legal system concerning the environment has made it rather innovative, although not particularly effective. We selected laws (and other regulations) and policies with more lasting or controversial effects. The narrative is basically chronological. Each regulation is mentioned by its name, date and institutional origin (and sometimes by its popular name), so that the interested reader can refer to the full legal texts that were our main sources. Our comments are necessarily brief. Readers interested in the full range of acts and in more extensive comments will nd indications in our notes and bibliography.1
This paper is adapted from Jos Drummonds 1998 masters thesis, National Parks in Brazil, and Ana Flava Barros-Platiaus doctoral dissertation (2000), Vers quel droit de la protection internationale de lenvironnement? La participation du Brsil dans le dveloppement des rgimes de la biodiversit et du contrle du changement climatique. Address correspondence to Jos Drummond, Professor, Centro de Desenvolvimento Sustentvel, Universidade de Braslia, Brazil. E-mail: jaldrummond@uol.com.br. LAW & POLICY, Vol. 28, No. 1, January 2006 ISSN 0265 8240 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.
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II. AN ANALYTICAL CONTEXT FOR ENVIRONMENTALISM IN BRAZIL BETWEEN 1934 AND 2002
If we take environmentalism to be a specic concern with the state of the natural world and its effects on humanity, Braz1 was denitely not an environmentalist society for most of the 19342002 period. It was precisely the oppositea pro-development society, in the hardest sense of the expression. It is not that development is incompatible with environmental concern or quality, or that economic backwardness is necessarily benign for the natural environment. We argue that there was in Brazil a deep and lasting social consensus in favor of economic growth, at any and all costs, and that such an attitude was supported by a quite similar global consensus. This agreement crossed social, economic, and ideological boundaries throughout periods as distinct from each other as the civilian dictatorship of Getlio Vargas (1930 45), the 194564 civilian experiment in democracy, the 196485 military dictatorship, all the way up to the eve of the 1992 Rio environmental summit. Developmentalism was a national unanimity for almost 60 years. The widely accepted goal was to turn Brazil into a major world power, at the expense of political liberty and of the natural resource endowment, not to mention social justice. Only since the mid-1980s has the developmentalist model been questioned, for both social and environmental reasons, by a durable and effectual concern with the natural environment among numerous citizens, leaders, and government ofcials. Although still expanding, such concern remains shy, unevenly spread and very far from the unanimity once held by developmentalism. Indeed, Brazils most comprehensive environmental regulations and policies were enacted or more strictly enforced only since the early and mid-1980s, when faith in authoritarian government and dirty growth waned. By then, however, Brazil, after growing more than any other country in the world between 1900 and 1982, was a fully industrialized country. It was ranked among the ten biggest countries in the world (in terms of GDP), but its development model, based on heavy industrialization and extensive uses of resources, lost momentum after 1982 and has yet to recover it. At about the same time1982the global pro-growth consensus that supported Brazils growth had also changed, with the upsurge of an extensive critique of environmental degradation and the wasteful use of natural resources. They were no longer seen as competitive advantages, but as avoidable and undesirable costs (Crespo 1998; Crespo & Leito 1993; Guimares 1991; Leis 1991; Viola 1986; Viola & Leis 1995). The internal shift towards democracy, combined with the new international stance, stimulated the emergence of environmental awareness, movements, organizations, legislation, and policies inside the country. On the whole, however, pro-growth values, expectations, and behaviors dominated the 19342002 period. The sole voices against growth at all costs during most of the period were those of a small group of natural scientists
2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 85 motivated by conservationist values that seem obsolete to todays more socially oriented environmentalists (Carvalho 1977; Dourojeani & Pdua 2001; Franco 2002; Franco & Drummond 2005; Goldenberg 1992; Urban 1998; Viola 1986). Brazilian environmental laws and associated polices can be divided into three major phases. The rst one goes roughly from 1934 to 1964, marked by strong development efforts based on pervasive state intervention and investment, and on the expansion of agricultural frontiers. It took the form of encompassing codes regulating the production of ores, wood, hydraulic energy and other natural resources. The second phase goes from 1964 to 1988, again marked by strong State intervention and swift economic expansion (including the agricultural frontier), but also by renewed environmental regulations and policies. The third phase goes from 1989 until the present, marked by weak economic growth or even stagnation, diminished and increasingly ineffective state intervention and expanded environmental legislation and policies. The agricultural frontier continued to expand, but it coexisted with higher productivity in settled areas. During the last period, environmental laws became more encompassing, more scientically based and more punitive. It may be considered a great tournant in Brazilian environmental law, and policy. Not only were control mechanisms and criminal and administrative sanctions introduced, but environmental planning and impact assessments also became more common. Economic instruments were also adopted, such as the polluter-pays principle, in consonance with an international trend in environmental law. Our brief examination of environmental laws and policies conrms a classical statement made by many political analysts. It considers the Brazilian state as historically capable of foretelling civil society demands and of actually shaping them (Carvalho 1987). Indeed, we show that most of the current institutional framework for dealing with environmental issues, although only loosely enforced, was in place before concerted social demands were voiced. Multi-sectoral environmentalism, routinely involving NGOs, universities, scientists, social movements, political parties, district attorney ofces, businesses, private foundations, and individuals, is still a recent development in Brazil.2 Regulations and policies are an important basis for its continuity, but in general they were not issued as a direct consequence of a widespread concern about the natural environment.
III. PRIOR TO 1934A BRIEF INSTITUTIONAL CONTEXT
The most important institutional trend to affect contemporary Brazilian environmental regulations is the chronic lack of governmental control over public lands and private land uses. This is expressed above all in the colonial (15001822) and post-colonial (after 1822) pattern of large land grants made to limited numbers of people, in a system called enteuse romana. By
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passing on large tracts of land to private owners endowed with civil, scal, and military power, the Portuguese king and, later on, Brazilian central governments, had a weak hand in controlling the use of associated resources and features, such as soils, ores, water, coasts, ora, and fauna. More often than not, central government backed or even stimulated wasteful practices. Therefore, since early in the countrys history, small groups of private landowners have exercised ample discretion in deciding about the private uses of their typically huge latifundia or plantations, not to mention typically public decisions about law enforcement, taxation, military campaigns, land ownership, and so on. This trend, combined with slavery and with the immense size of the colony and nation, fostered a permanent, slow-moving, loosely controlled land and resource frontier dynamics, in effect until the present. Land owners regularly asked the central government for, and received, new grants, even if not needed, thus displacing the squatters or proprietors who may otherwise have established themselves at the edge of the latifundia frontier and developed less-destructive patterns of resource use (Dean 1976, 1995; Pereira 1980; Prado 1942). The 1891 Brazilian Constitution put an end to Brazils unique monarchic rgime, adopted since its independence in 1822. In a republican and federalist tone, it turned over all public lands to state governments. However, these governments were even more entrenched in the latifundia system than central colonial rulers and Brazilian emperors, and thus land distribution and control policies continued to be slanted. In this manner, the Brazilian central republican government was born practically without public lands to manageexcept for narrow or remote strips near international borders, military installations, and railroads. This lasted until a constitutional amendment of 10 November 1964 returned public lands to the responsibility of the central government. Before this, any effective environmental laws or policies would have had to be mostly state-based, or made in accord with states, something that would have been a global exception in the development of effective environmental laws and policies. Therefore, before 1964 the central government, even if it or Brazilians in general had so wished, could do very little about issues such as land reform, resource conservation, or nature protection.
IV. THE FIRST PHASEFROM 1934 TO 1964
The year 1934 is a landmark for environmental regulation in Brazil: two presidential decrees established encompassing codes for water/ores and forest management. However, their purpose was to put those resources under rational control and planning by federal agencies. There was not yet a modern intent of preservation, except for minor items in the Forest Code. However, by restricting their use, both codes had long-lasting effects on the manner by which these resources were consumed (or not consumed).
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 87 The Water and Mines Code (Cdigo de guas e Minas) was the popular name of Decree 24.643, of 10 July 1934. Its most relevant aspect was that it atly dissociated private property of the land from property of commercially valuable mineral and water resources associated with the land. This went straight against the aforementioned trait of full private control over the land, because since then no Brazilian landowner has had automatic ownership or user rights over associated water (including underground) or ores (including oil and natural gas). Water (for supply, irrigation, hydroelectricity, etc.) and all types of ores were dened as national patrimony to be exploited only through specic concessions, awarded on a caseby-case basis to licensed companies (private, state-owned, or mixed). However, as the Brazilian state proved to be at least as developmentalist as private entrepreneurs, these restrictions did not mean that signicant portions of these resources were set aside for the future, or otherwise preserved. Actually, over the ensuing decades Brazil became a world-class leader in both mining and hydroelectric energy production. Wide-scale irrigated agriculture has also expanded since the mid 1980s. Nonetheless, it is true that the concession system removed water and ores from a free-for-all assault by competing and potentially destructive private interests. The Forest Code (Cdigo Florestal) was the popular name given to Decree 23.793, of 23 January 1934. Despite its extensive forests, this was Brazils rst comprehensive regulation about them. The rst article of the decree stated that forests were of the common interest of all Brazilians. A verbatim reading would indicate that they were also dissociated from the private ownership of the land, just as ores and water, but this was not to be. Public control over the use of forests proved to be much weaker than in the case of ores and water. This was more a problem of managerial efciency than of the letter of the law, because today the verbatim reading is making headway in many plans, programs, and policies involving not only forests, but other native oral formations (such as savannas and mangroves), without major changes in the letter of the law. Overall, though, the Brazilian native ora has remained at the mercy of private landowners, although the law stipulates a system of specic concessions for logging and other uses, both in private and non-private lands. In a certain sense, forests have been mined more than the ores themselves, giving Brazil a relatively unfair celebrity as a country particularly prone to deforestation (Dean 1995). Stranded among many articles related to logging, the Forest Code had a few preservationist provisions. It broke down forests into four types: protective, remnant, model, and productive. The immense majority of native forests were deemed productiveopen to commercial logging by means of permits. Model forests were replanted forests, quite rare in Brazil at the time. Remnant native forests were those located in national, state, and municipal parks (non-existent in 1934). Protective native forests were those that protected watersheds, soils, dunes, public health, natural scenery, and rare species. The last two categories were earmarked for permanent protection.
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Article 9 brought the rst legal reference to national, state and, municipal parks, dened as natural monuments also worthy of permanent protection. The major results of this article were Brazils rst sixteen national parks, created between 1934 and 1961. Brazils national parks were thus born under a code endowed with a predominantly productivist goal, a persistent ambiguity (Drummond 1988, 1997a (O Sistema Brasileiro de Parques Nacionas: Anlise dos Resultados de Uma Polilitica Ambiental), 1997b (Devastao e Preservao AmbientalOs Parques Nacionas do Rio de Janeiro); Barros 1952; Barros 1974; Blart 1976; Magnanini 1966). Protective forests, on the other hand, have been sparsely enforced, as landowners have had an almost free hand at deciding how much they change or otherwise convert completely the native ora on their lands. Even today, the concept of protective forests is regularly enforced only in some of the more settled Brazilian regions, and even then only to a mild degree. Other important environmentally related regulations were issued in 1934, such as those creating the Vegetal Health Service and the Animal Health Service (both in charge of food inspection), the Hunting Code, and the Irrigation, Reforestation and Colonization Service (Dean 1995). This surge did not, however, correspond to any recorded demands by environmental movements or powerful lobbyistsit was the result of government initiative, combined with the political inuence of a handful of conservation-minded natural scientists, helping the state to see ahead of environmental demands (Franco 2002). During the thirty years between 1934 and 1964, no signicant new environmental regulations appeared in Brazil. Only two pieces deserve brief attention. The rst is Decree-Law 5.894, edited in 1943, detailing the 1934 Hunting and Fishing Code (Cdigo de Caa). One article authorized public lands to be set aside as refuge and breeding areas for wild native animals and predicted that these areas could later be made into national parks.3 This early concern with the breeding of wild animals is intriguing, because at the time the activity was rare anywhere in the world, and remains so in Brazil. There was not even an ofcial list of animals threatened with extinctionBrazils rst such list appeared only in 1968.4 Nor were there any signs that commercial breeding or domestication was a goal. Decree-Law 9.760, of 4 September 1946, is the second regulation to be mentioned. It conrmed the public ownership of all inter-tidal sections of Brazils extensive Atlantic coastline. This provision was spread throughout several older regulations, some dating back to colonial times, inuenced by an ancient Portuguese legal principle of keeping its coast in the hands of the central government. Actually, this 1946 regulation extended the validity of the principle to river oodplains affected by tides. The implications of this, in terms of coastal and river management, are potentially grand, but, to our knowledge, they are yet to be fully used in public policies.5 Therefore, the rst phase of Brazilian environmental law started under the aegis of strong government intervention in the economy, in the wake of the worldwide
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 89 depression of the 1930s, and coincided with the vast pre- and post-World War II development policies that prevailed in the country.
V. THE SECOND PHASEFROM 1964 TO 1988
We need to jump forward almost twenty years to nd new and signicant environmental regulations issued after the aforementioned 1946 coastal management statute. The Land Statute (Estatuto da Terra)the popular name given to Law 4.504 of 30 November 1964temporarily placed environmental conservation in the uncomfortable company of the controversial issue of land reform. Brazilian latifundia had resisted all feeble reform attempts. Civilian reformists of the 1950s and 1960s pushed the issue, unsuccessfully. However, in a paradox, the conservative military government created by the 1964 military coup took on the matter and edited a quite progressive land reform law. It stipulated, among other things, that the private property of land attained its full social function only if it combined fair distribution, adequate use, and conservation of natural resources. Legally, therefore, the wasteful use of natural resources became one of three legal reasons for restricting private rights over the land. This was nothing less than revolutionary. As public lands reverted to federal jurisdiction in late 1964, the federal government was now entitled to both (1) encroach on the uses of private lands and (2) use large stocks of public lands for conservation and preservation policies, associated with tenure reform and colonization policies. In other words, land reform policies could be associated with environmental protection policies. Unfortunately neither group of policies advanced during the 1960s or 1970s. A new Decree-Law (554, of 25 April 1969) restored the status quo. It authorized government to buy out private properties for establishing national parks, but explicitly excluded the lands of rural enterprises, independently of the wise or wasteful use of their resources. No national parks or similar units were created as a result of the Land Statute and other conservation units.6 This was actually fortunate, because most national parks in Brazil have enough lingering problems related to human occupation. The reality that todays social environmentalists refuse to face is that national parks and landless laborers are uneasy neighbors. The rst regulation since 1934 to have broad and lasting effects on environmental practices was the New Forest Code (Novo Cdigo Florestal, Law 4.771, 15 September 1965) (Drummond 1988; Dean 1995). Having been discussed in Congress since 1948, the bill took seventeen years to go through, a typical example of how slowly parliamentary institutions in general handle encompassing bills, environmental or not. Article 1 again stated that forests (and now, interestingly, other native oral communities were of the common interest to all Brazilians, deserving that limits be set to their private possession and use. It also stipulated that violations of this
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article would now be subject to criminal punishments under the Civil Code, as they constituted damaging use of private property. Again the law tried to encroach on private land use, again with limited success, at least until the emergence of the more recent Environmental Crimes Act of 1998 (Law 9.605, 12 February 1998). Article 2 of the New Forest Code pinpointed the location of all native vegetation to be permanently protected, inside and outside private properties: on riverbanks, around lakes, reservoirs and watersheds, on hilltops and steep slopes, and on any lands above 1,800 meters. This was an expansion and an improvement of the legal denition of the 1934 protective forests. On the basis of this provision, individual landowners are still expected to preserve or restore the native vegetation of these permanent protection areas, although enforcement is weak, and several legal additions and administrative ordinances have created loopholes. Article 3 dened reasons for the permanent protection of other oral formationspreservation of scenic beauty, conservation of soils, stabilization of dunes, protection of soils, preservation of habitats, protection of indigenous peoples. These are signicant conceptual innovations. Article 5 expanded the concept of national parks and introduced the concept of national forests (a modernization of the productive forests, inscribed in the 1934 code). New and better-designed parks were indeed created after 1965, as well as numerous national forests. As of 2002, however, no national forest logging operations had been the object of a bidding process and put into full production. Therefore, this classic forestry policy solutionto concentrate logging in limited areas, easing pressures on remaining native forestsis still to be effectively adopted in Brazil.7 Article 6 brought another welcome innovation. It allowed privately owned lands to be classied as conservation units, if owners voluntarily made a conservation easement, in return for tax breaks. After a number of short-lived regulations based on this article, throughout the 1970s and 1980s, the status of Private Preserve of the Natural Patrimony has now been awarded to more than 500 mostly small properties or parts of properties considered to have the proper natural qualities. Although most such reserves have minimal size, the relevance of such a privatepublic solution should not be underestimated, given the generally poor record of seventy years of public conservation policies. Law 5.197, of 3 January 1967, the Animal Protection Law (Lei de Proteo dos Animais), updated prior regulations from 1934 and 1943, and dened biological preserves (announced in the 1965 Forest Code). These units should preserve rare or unique (faunal) species, and no animals could be introduced, used, or captured in them. Their ecology should remain intact. Only scientic research and ecological restoration (if required) were allowed. This law became the basis for all of Brazils now fairly numerous and usually extensive biological preserves, the countrys most restrictive type of conservation unit. However, the rst such reserve
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 91 was only established in 1974the Poo das Antas unit, deservedly famous as the base of the golden lion tamarin (Leontopythecus rosalia rosalia) preservation project. Successive lists of endangered species (issued in 1968, 1973, 1990, and 2003) have also been based on this law. The current stipulation of severe penalties for the possession, selling, buying, transportation, or hunting of any wild animals is also based on this law. It is highly controversial, because poor rural dwellers who hunt for food have been jailed without bail, in the same manner as people deeply engaged in the illegal global animal trade, for which Brazil is a prominent supplier. The Brazilian Institute for Forest Development (Instituto Brasileiro de Desenvolvimento FlorestalIBDF) was the, rst fully edged federal agency dedicated to the issue of conservation and preservation of renewable natural resources in Brazil. It was created in 1967, by Decree-Law 289 (28 February), pulling together several scattered ofces within the Department of Agriculture, which dealt with preservation or with the development of specic products, such as pine, salt, yierba mate, and so on. Its role fell mainly within the realm of wood productionmanagement of the demand and the supply of forest resourceswith the help of new and vigorous commercial tree-planting policies. Brazilian parks and preserves thus came under the responsibility of this production-oriented agency, which from 1967 to 1978 created only three parks and one biological preserve (Berutti 1974; Drummond 1988; Strang, Magnanini, Barros 1982; Reis 1983). However, in the late 1970s a small group of IBDF personnel dedicated to conservation units started to make headway in the creation of new parks and preserves and in the systematic, long-term planning of a system of different types of units. Under the leadership of Maria Teresa Jorge Pdua, and using the existing legal framework (the 1965 Forest Code), IBDF established, between 1979 and 1986, at least eleven new national parks, and nine new national biological preserves. These include some of the most important and/or largest components of the Brazilian conservation unit system until this day. Pduas group also produced a management code for national parks and a number of pioneering management plans for major conservation units. This group managed to put conservation units on the record of IBDFs positive achievements, despite the fact that they were not the agencys priority (Brasil. Ministrio da Agricultura 1978, 1979; Brasil. Ministrio da Agricultura & Fundao Brasileira de Conservao da Natureza 1982; Bruck 1983; Drummond, 1988; Pdua 1978, 1983; Pdua & Coimbra Filho 1979; Tresinari 1983; Urban 1998). The Special Secretariat for the Environment (Secretaria Especial do Meio AmbienteSEMA), created on 30 October 1973 by Decree 73.030, was Brazils rst national environmental agency created explicitly and solely for environmental protection and management policiesit did not have any role or mandate in the eld of resource production. It was born out of Brazils adherence to the recommendations of the 1972 Stockholm UN summit meeting on environment and development. One of its major
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activities was the establishment of several environmental quality standards to be enforced by future legislation also designed by agency technicians. However, it also engaged in the creation and management of its own conservation units, created by separate regulationsecological stations, areas of relevant ecological interest, and environmental protection areas. Between 1977 and 1986, SEMA created a hefty total of thirty-eight ecological stations (pristine areas open only to scientic research) and eleven environmental protection areas (including degraded private and public areas, sometimes inside or near cities), besides a small number of areas of relevant ecological interest (Aquino 1979; Drummond 1988; Nogueira Neto 1980, 2001).8 During the second half of this second period1979 to 1988there was a new surge of environmental regulations, stronger than the one in 1934 and quite different in its nature. By then, Brazilian activists, scientists, politicians, and managers were (1) more environmentally aware on a global scale and (2) were supported or even urged by a growing environmental concern and mobilization among Brazilian citizens. New issues were addressed by these new rules, within a much-improved legal, institutional, and scientic framework. Demands from civil society became stronger, and the state became less able to ignore or shape them. As a tting symbol of a new era, on 31 August 1981 Law 6.938, called Law of the National Environmental Policy (Lei da Poltica Nacional do Meio Ambiente) was enacted. It was drafted mostly by the SEMA staff and became, and still is, Brazils cornerstone environmental regulation. It introduced the legal denitions of the environment and of objective responsibility (responsibility assigned independently of the intent to commit violations against environmental quality) into the legal vocabulary.9 It is interesting to note that this law was issued in the waning years of the military dictatorship, reecting both the democratic transition and the growing ability of civil society and NGOs to inuence public policies. This law was ambitious, as it aimed at making socioeconomic development compatible with environmental quality and ecological stability. Its principles were thoroughly modernthe concept of natural environment as a public good worthy of protection, the rational and planned use of natural resources, the isolation of polluting activities in restricted zones, the reclamation of damaged areas, and environmental education. These principles and goals innovated national regulations, anticipating concepts later linked to the notion of sustainable development.10 However, it should be stressed that this law still sought to ensure optimum conditions for economic growth and national security, with the protection of human life and the biota coming in a clear third place. This scale of priorities still reected the lesser degree of importance attributed to environmental concerns in the mid- and late 1970s. Nevertheless, when the law was issued in 1981, the rst traces of a concerted legal effort to institute prevention of and reparation (and not only economic compensation) for environmental damages were already visible.
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 93 The same 1981 law also created the National Environmental System (Sistema Nacional de Meio AmbienteSISNAMA), an encompassing management network. It brings together agencies, tasks, and rules from ve different administrative levels: union, states, federal district, territories and municipalities. The CONAMA (National Environmental Council) is the central SISNAMA agency, for consultative and deliberative tasks. In 1988, CONAMA was composed of no less than fty-six members, representing many federal departments and agencies, all state governments, local governments, businesses, workers, scientists, and environmental NGOs. In the 1990s, CONAMA, now expanded to almost one hundred members and sub-divided into many Technical Committees, came under the authority of the new Ministry of Environment, and has been playing a leading role in environmental regulation11. CONAMA is in charge of dening environmental quality standards and limits to pollution; it reviews controversial environmental impact statements; it studies and proposes technological alternatives; it issues guidelines for the licensing of industrial activities; it revises nes and penalties, and oversees tax breaks given to productive companies. Each state has its own environmental council, structured much like CONAMA, with a similar mandate, at the state level. This complex regulatory structure was put in place during the late 1980s and 1990s, and has now reached a stability and legitimacy among public and private actors. One of the most signicant changes introduced by the 1981 law and by the SISNAMA procedures was the creation of more regular access and resort to court decisions by environmental activists and ofcials. However, industrialists have successfully limited the effects of litigation whenever industrial secrets are concerned, alleging threats to competition. Therefore, the effort to guarantee transparency and access to courts remains somewhat limited by strong economic interests. The most important role of CONAMAand certainly the most visible is arguably the establishment of environmental standards and criteria usually suggested by IBAMAfor the licensing of polluting activities. Dozens of CONAMA resolutions have been issued to this effect. CONAMA Resolution 001, of 23 January 1986, for example, opened the era of environmental impact statements (EIS) in Brazil. It was inspired by the U.S. National Environmental Policy Act (1969). Legislators and policymakers soon noticed that EISs would be inefcient if not drafted before the installation of potentially pollutant activities. Therefore, the resolution ordered that EISs precede the operation and even the construction of respective installations and activities. Before a new industrial or otherwise impacting activity is licensed, CONAMA is entitled to determine basic criteria for the respective EIS, such as environmental evaluation of the area, description of the proposed activity and its alternatives, and identication and forecasting of positive and negative impacts on the physical environment, on the biota, and on local communities. After the EIS is drafted in technical and scientic terms, an associated report
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is to be prepared in a more popular language, in order to inform the general public and allow informed inputs during mandatory public hearings. Nevertheless, most EISs in Brazil continue to be drafted in a manner too complex to be understood by the average citizen. This is a serious problem, as EISs are mandatory for any activity potentially capable of transforming the environment. This includes railways, roads, ports, airports, oil and gas ducts, mines, dams, transmission lines, irrigation infrastructure, industrial districts, and so on. Few countries in the world demand such assessments for so many different economic activities and structures. Despite the problems, it is fair to say that the aforementioned 1986 CONAMA resolution put an end to the era when environmental costs were freely externalized by businesses and governments upon the natural environment and society.12 Licensing of polluting activities is regulated under CONAMAs Resolution 237/97 (Van Acker 1997). It is a highly centralized procedure, but many people today favor decentralization, so that such decisions be made by those authorities and citizens closest to potential environmental consequences, as long as they follow nationally dened guidelines and standards (Farias 1999). However, few municipal governments have the managerial capacity to engage in effective environmental regulation. Two other problems linked to decentralization of licensing procedures concern citizens and observers. First, ecosystems are typically much larger than municipal territories, and thus cannot be protected solely at the local level. Second, for the purpose of promoting economic growth, local authorities and citizens may be excessively eager to sacrice local or even regional environmental quality by accepting environmentally harmful investments and activities. The democratic transition in Brazil allowed a big step towards a more participatory mode of judicial action in Brazil. We refer to Law 7.347 of 24 July 1985, directly affecting environmental law and policies. It is popularly known as the Law of Diffuse Interests (Lei dos Interesses Difusos) or the Law of Public Civil Actions, because it allows civil suits against those who harm the rights of consumers and the historical, environmental, or touristic patrimonies.13 This law expanded citizens access to the courts. As most democratic countries are still seeking a solution to secure collective access to justice, this law is an important innovation. In the past, most damages to the environment were considered as an infringement of the law only after public ofcials had veried them, with no room for judicial indictments or prosecution initiatives by district attorneys ofces. In Brazil, after 1985, judges, district attorneys, public agencies, foundations, individual citizens, and civil organizations that are one year old may initiate procedures to bring violators before justice. Charges entail judicial investigations and judges may decide to punish violators, to demand compensation and reparation to victims, and even terminate the activities deemed to be harmful to the environment (Meirelles 1999). In this manner, Brazilian environmental organizations and citizens groups gained strong standing to take their causes to court. This is still not possible in several democratic countries, such as Germany, for instance. It
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 95 means that environmental resources, typically lacking individual or corporate owners (they belong to everybody in general and to nobody in particular), when not cared for by executive public agents (incompetent, negligent, or corrupt), may be protected by judicial action initiated by several other actors. Not surprisingly, this law created a huge volume of formal accusations and investigations. Federal and state district attorneys ofces have decided that some prosecutors and support staff should specialize in environmental issues, something that has had considerable consequences for the judicial system itself. This profusion of new environmental laws, with such different origins and goals, introduced enormous complexity into the Brazilian legal system. As a result, the 1988 Federal Constitution included an environmental chapter. Its scope was based mainly on the environmental laws and regulations enacted since 1979. An informal but proactive environmental caucus mobilized around sixty of the ve hundred and fty congressmen in charge of drafting the new Constitution in 1987 and 1988. They managed to include an entire chapter on environmental quality and protection. This was a breakthrough, as the Brazilian Constitution itself now recognized serious environmental limitations to the ever-popular goal of development. This chapter sought to be a high-level foundation for the systematization of the already vast Brazilian environmental legislation. It assigned important roles to all public authorities: preservation and restoration of essential ecological processes; promotion of ecological management of species and ecosystems; protection of biodiversity and control of genetic resources; creation of protected areas; obligation of public authorities to demand EISs; control over technologies, substances or productive methods potentially harmful to the environment; and environmental education. Changes in the limits or suppression of conservation units now require specic laws. In the same tone, practices threatening ecological functions, causing species extinction, or submitting animals to cruelty are formally prohibited. All dense forest formations (Amazonian and Atlantic), the Pantanal (swamplands), and coastal mangroves became national patrimony, in which productive activities were and continue to be limited by a number of other constraints (Barroso 1992). Another remarkable impact of this Constitutional chapter was on consumers rights, as Article 48 supported the Consumers Code. Since environmental and consumer protection are listed as principles belonging to the economic order (Article 170), they are equally situated. This created further limitations to private initiatives (Milar 2001: 53). The Constitutional text reveals a strong departure from the tone of earlier regulations, in which the Union left a considerable part of the custody of environmental resources to private individuals.
VI. THE THIRD PHASEFROM 1989 TO 2002 (AND BEYOND)
In order to centralize the execution of environmental regulations and policies, the federal government created the Institute of the Environment and
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Renewable Natural Resources (IBAMA). It became the countrys major executive environmental agency and was established by Law 7.735 of 22 February 1989. IBAMA executes national environmental policies in the elds of preservation, conservation, regulation, and the promotion of the sustainable use of environmental resources, besides monitoring and control.14 IBAMA unied four pre-existing federal agencies. Two of them were mentioned earlierIBDF and SEMA, the other two were SUDEPE (sheries development) and SUDHEVEA (rubber development). IBAMA can be considered a direct consequence of the 1988 constitutional provisions and of the encompassing outlook on environmental issues that informs them. Its creation can be taken as the opening of the third phase of Brazilian environmental laws and regulations. An important dimension to be discussed in the context of the 1990s is that of Brazils international environmental commitments, because they have had a strong inuence on its environmental policies. As the 1992 Rio Summit took place in Brazil, the host country was obviously expected to expeditiously adopt laws and policies in consonance with this grand environmental summit. In a broad sense, Brazil indeed has behaved in this manner, to the applause of most environmental organizations, national, and international (Kiss & Beurier 2000; Wolff 2000). Among the documents signed or proposed at the 1992 summit, the most important for Brazil was the Convention on Biological Diversity, with the ensuing protocols on Climate Change, and on Biosecurity. Brazil ratied this Convention in 1994. Concerning biodiversity, as already discussed, the protection of fauna and ora was distributed among several texts issued between 1934 and 1988. As seen above, the 1988 Constitution, in its Article 225, items I, II, III, VII, assigns roles to public authorities, such as the conservation of biological diversity and the national genetic heritage, as well as the protection of the fauna, ora, and their ecological functions. Although the issue of genetic resources is more modern that the issue of the protection of species and habitats, it was treated in this same article, with specic emphasis on the regulation of genetic research and manipulation, commerce and control of techniques, methods and substances that may bring risks to the quality of life or to the environment. In relation to policies and laws linked to climate change, Brazil engaged in the related international negotiations from the standpoint that its energy budget (overwhelmingly based on hydraulic energy) is quite clean, compared to the richest countries, who intensively consume fossil fuels. Thus, the Brazilian delegation insisted on the matter of factoring in the historical responsibility of countries that went through their industrial revolutions in the eighteenth and nineteenth centuries.15 That is the main reason why the national legislation about this matter did not suffer any radical shift over the last decade: Brazil has been mostly free from international pressures concerning this matter. Nonetheless, Brazil has adopted several resolutions and policies on air pollution and emissions control, displaying its commitment
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 97 to the protection of quality of life, especially in big cities, such as Rio de Janeiro, So Paulo,16 and Belo Horizonte. In relation to the Protocol on Biosecurity, in contrast, Brazil is one of the most involved and interested countries, in part because the international market for non-genetically modied soy beans and corn (besides other products) would be an opportunity to secure the European market, with practically no competitors of the same scale. However, the stakes are too high to let the country speak in one voice: environmentalists have quarreled with many scientists and farmers who favor the use of genetically modied organisms (GMOs). The last two federal administrations have wavered on the matter. This explains why regulations on GMOs are weak and confusing. Federal Judge Antnio Prudente decided, on 27 June 2000, to forbid the commercialization of Monsantos genetically modied soybeans without a specic EIS. However, when IBAMAs Attorney General, Francisco Ubiracy Craveiro de Arajo, decided that IBAMA should take part in the civil action against GMOs, he was red, because the federal government understood that IBAMA should not take part in a legal action against another public agencyin this case, the National Technical Committee on Biosecurity, linked to the Ministry of Science and Technology. To prevent this situation from happening again, a Provisional Act MP 218035 changed the rules of the game, giving the Attorney General of the Union the power to solve conicts between administrative agencies (Graf & Figueiredo 2001: 17). However, on 12 March 2002, a Special Committee of the House of Representatives voted in favor of a bill regulating the use of transgenic crops in Brazil. This was a victory by farmers who defend interests of the Gene Giants,17 and a serious defeat of the position of the Ministry of the Environment, headed by Marina Silva, a historical member of the Amazonian environmental movement. Congress nally made this bill into law (Biosecurity Law, 11.105, March 2005) and, despite protests by environmentalists, it was endorsed by President Lus Incio Lula da Silva. While this conict was evolving, however, there was a slow but sure move among many farmers towards the cultivation of GMOs in Brazil (Machado 1995; Varella & Barros-Platiau 2000).18 The other important text issued during the Rio Summit was the Agenda 21. It is not an international agreement, but a programmatic document aimed at improving legislative and organizational capabilities of developing countries to cope with international agreements and capacity building. Agenda 21as stated by the Ministry of Environmentamounts to a process of internalization of sustainable development at several levels (local, regional, national, and international), because it tries to reduce environmental degradation in the name of the welfare of future generations.19 Brazil has covered signicant mileage, as there has been a concerted effort to protect the environment by legal means, following Agenda 21 guidelines. Since 2002 there has been a national Agenda 21 ofcial document, drafted over a
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three-year period, with the participation of more than forty thousand people all over the country. Several states and municipalities have also drawn out their own Agenda 21 documents. In the federal sphere alone, in the ten years after the 1988 Constitution, seventeen laws, three Provisional Measures, 139 Decrees and 170 CONAMA Resolutions were issued under the direct or indirect inspiration of Agenda 21, with direct consequences for the environment and social welfare (Milar 2001: 99).20 One of the most important of these rules is Law 9.985, of 18 July 2000. It regulated the Constitutional Article 225, 1o, items I, II, III and VII, instituting the National System of Conservation Units (Sistema Nacional de Unidades de ConservaoSNUC) and providing clearer concepts and managerial goals of several types of conservation units (Machado 2001). The main objectives of the SNUC are to contribute to the conservation of biological diversity and genetic resources, protect threatened species, promote sustainable development based on natural resources, and stimulate the use of conservation principles and practices in the process of economic development. Brazilian policymakers and legislators adopted the term management, and not protection, as the best strategy for sustainable development. The SNUC law moved the balance of power away from the more traditional concepts of conservation, in which at least some units are ideally conceived as being better off if not inhabited or directly used by any human communities, traditional or otherwise, while the now dominant opinion stands in favor of traditional or non-traditional populations being allowed to live inside or near conservation units.21 This SNUC law accordingly distinguished two groups of conservation units: fully protected units and sustainable use units. The rst group aims at preserving nature, while the second one tries to make the protection of nature compatible with the rational use of natural resources by selected human communities. The rst group is composed of ve types: ecological stations, biological reserves (Leite 2001), national parks, natural monuments, and wildlife refuges. Sustainable use units are areas of environmental protection, sustainable development reserves (Wiedman 200la), private preserves of the natural patrimony (Wiedman 2001b), areas of relevant ecological interest (Nogueira Neto 2001), extractive reserves, and national forests. It seems that this conceptual variety of conservation unit types would be enough to appease the different goals of social and natural environmentalists. However, the two groups continue to squabble with each other over the particulars of specic units, especially older national parks and biological reserves in which there are chronic conicts with local populations. We have been stressing how fast Brazilian environmental laws evolved since the early 1980s. Regulations about water are probably the best illustration of this. It is interesting to observe how the regulation of water uses passed from an individual or single-use perspective (characteristic of the 1930s) to a collective or multiple-use scope. This is largely explained by the fact that water is no longer considered to be an unlimited resource, as was
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 99 the case in the 1930s. This shift is clear in the 1988 Constitution and in Law 9.433 of 1997, creating the National Water Resources Policy. It emphasized treating water as a collective good, instead of something designed to appease individual and particular interests. Nevertheless, in spite of the important change in legal conception, the legislative mechanism is still centralized. Water considered as a strategic asset is too important to be controlled simultaneously by all levels of government. Article 22 of Law 9.433 entitles the union as the sole regulator of water, allows it to classify water bodies and to establish the priorities for its use. Thus, the institution of SINGREHNational System of Water Managementis also going in the direction of centralization. Another remarkable point is the high priority given to water as a source of energy, as stated in Articles 20 and 21 of the Constitution, something that is not surprising, given that most of the Brazilian energy supply depends on water. The SINGREH is a complex institutional arrangement, still under construction. It is composed of the National Water Resources Council, the National Water Agency (ANA), the State Water Councils, Hydrographic Basin Committees, and other government agencies related to water issues. Very much like SISNAMA, on which it is inspired, SINGREH is a national, not a federal system. Thus, Laws 9.433/97 and 9.984/00 corroborate that the three administrative levels (federal, regional, and local) are to be represented in SINGREH. The National Water Agency was created as the executive body of the National Water Resources Council and falls under the jurisdiction of the Ministry of the Environment (Brazil. Agncia Nacional de guas 2001). The National Water Resources Council is in charge of normative aspects and planning of water uses. The most interesting renovations are certainly the State Water Agencies and the Basin Committees. They are designed to work as participatory water districts, making decisions about water use and directly involving all interested actors, on a geographic basis. Basin committees are crucial for joint management and multiple-use decisions, but many still lack operative committees. Although this framework is very democratic, it is also hard to operate, for several reasons. First of all, those rivers that fall under federal jurisdiction have their committees appointed by the President of the Republic, but the law says nothing about the non-federal rivers and their respective committees. Second, some federal rivers are tributaries of state rivers, making the previously mentioned omission a source of additional problems. Third, most of Brazils major basins belong to more than one state. In order to achieve efciency, each committee must take neighboring committees into account. The federally appointed basin committee in charge of the heavily polluted Paraba do Sul river, affecting the industrialized states of So Paulo, Rio de Janeiro, and Minas Gerais, recently took the lead in charging fees for primary water tapping and for discharges. This is the rst time that Brazilian cities and companies are being charged for these uses of water.
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Revenues are to be funneled back into the basin and invested in a variety of installations and equipment items aimed at improving water quality and quantity. In most Brazilian cities and towns, nal consumers already pay fees for receiving treated water and for sewage collection and treatment, but charging for primary tapping of water and waste discharges is a huge change in policy and practices. Lastly, let us comment on the innovative law on environmental crimes (Lei dos Crimes Ambientais), which reects a willingness to enhance compliance to environmental laws and regulations. Law 9.605, issued in 1998, species ecological crimes, in an effort to consolidate and to add enforcement capability to previous laws, particularly the article of the 1965 Forest Code about Civil Code violations (Fonseca 1999; Prado 1998). The law created, however, a legal conict over the matter of whether its chapter on crimes against the ora replaces or not all violations listed in the 1965 Forest Code. As the matter received a different treatment in the two legal instruments, it is not clear whether one replaces the other or not.22 The major innovation of this 1998 law is to consider collective entities (companies, organizations, and so on) as active subjects of ecological crimes. In fact, this is a break from the Brazilian tradition, considering that previously only individual citizens were liable to punishments for environmental crimes. However, it was necessary to provide the means for punishing entities for the environmental damages that they caused. Even if we assume that businesses are not organized with the purpose of damaging natural resourcesmuch to the contrary, they are designed to create benets to societythe law decided that they must be held accountable for the negative environmental impacts of their activities, such as pollution. Nevertheless, Article 14 of the law listed some attenuating circumstances that affect enforcementif the violator has a low level of schooling, if he recognizes his responsibility, if he spontaneously reports damages or risks as soon as possible, and if he cooperates with environmental control agencies.23
VII. CONCLUSIONS
We have shown that Brazil has developed a rather rich and advanced environmental legislation. However, much remains to be done in terms of enforcement and compliance, especially in the case of economic actors. The union itself is still closely tied in with some of the biggest polluters, as it still participates directly in oil and natural gas exploration, petrochemical activities, hydroelectric, and nuclear energy generation and transmission, and other heavy polluting industrieseven after recently having passed on to private enterprise major metallurgical plants and mining companies. But the legal framework for environmental protection itself is also to blame for partial enforcement and compliance. There is no signicant political effort to make executive agencies more efcient; the judiciary is usually
Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 101 poorly prepared in respect to environmental issues; and there is very little control over many highly intrusive activities, such as predatory logging in Amazonia. Budgetary priorities tell a part of the tale: for 2002, for example, the Ministry of the Environment had the smallest budget among all federal ministries and took the largest mid-term budgetary cuts (in proportional terms), two things that have happened for several years in a row. This shows clearly that environmental matters are still not a political priority in Brazil. Nevertheless, the increasing involvement of civil society in environmental affairs (through NGOs, public hearings, participatory councils, civil action suits) allows us predict that in the future damages to the environment will be less tolerated and less frequent, because they will be more systematically denounced and prevented, and more harshly punished. We have argued also that Brazilian legislation is modern, broad, and innovative in technical terms. Nevertheless, the country still suffers from weakly supported laws that sometimes and/or in some regions are not observed at all. Certainly, there is a problem of compliance tied to the fact that many Brazilians in general are still not aware of the benets of environmental protection. Having vast frontiers, Brazil is particularly suitable for the prevalence among signicant portions of society of the so-called cowboy environmental mentalitywhich aggressively promotes the immediate and widespread use of natural resources. Besides, for decades Brazil has been dreaming of becoming a developed country at any cost, and it may still take another generation before Brazilians realize that economic growth and environmental quality are not mutually exclusive, but complementary. We have discussed environmental law evolution in the context of national political developments and in reference to international law and politics. The most remarkable traits of Brazilian environmental laws and regulations may be summarized as follows: the perception that strict conservation units are not necessarily more efcient than sustainable use preserves (therefore prompting the creation of different kinds of areas to be protected in accordance to the specic goals and circumstances); the environmental chapter in the 1988 Constitution (important for assuring compliance); systematization of pre-existing codes and laws; the law on environmental crimes and its ability to punish persons or entities, even if they are not willingly responsible for environmental damages; the development of mechanisms for extensive public participation; efforts to involve public and private actors in environmental policies; and the public civil action initiatives, allowing individuals and organizations to step up in the defense of the natural environment. Concerning the large set of Brazilian environmental laws itself, it is commonly referred to as a patchwork. A systematization effort has been recently deployed to change this situation.24 However, numerous conicts are caused by contradictory texts edited prior to the 1988 Constitution, illustrating how divergent interests prevailed at different moments. Moreover, normative voids are still identiable, notably in regard to issues
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linked to sophisticated technological innovations, nuclear energy, patents, biotechnology, and biosecurity.
jos drummond is Graduate Programs Director at the Centro de Desenvolvimento Sustentvel, Universidade de Braslia, Brazil. His scholarship is focused on topics such as social and economic development as related to the use of natural resources, conservation units and environmental management, particularly in the Brazilian Amazon region. ana flvia barros-platiau teaches and researches international relations, politics and laws in the context of global environmental issues.
NOTES
1. Most regulations and policies discussed herein are partially or fully transcribed in Rocha (1986). Other compilations that include texts and commentary on more recent legal texts are Pinto and Almeida (1999), Antunes (2001), Machado (2000), Medauar (2002), Milar (2001), Silva (2000). We do not discuss state and local regulations. 2. Environmental activism and, more broadly, modern proactive citizenship, are usually considered to have their starting point in Brazil in the transition from military rule to democracy in the early 1980s. 3. At least one of Brazils rst federal biological preserves (Sooretama, in the state of Esprito Santo), created in the 1982, was, originally established in the 1940s as one of these breeding areas. 4. A more recent list of plants and animals native to the Brazilian territory threatened with extinction was published as Bernardes, Machado and Rylands (1990). In 2003, the most recent list, extended and updated, was published by IBAMA, Brazils major environmental agency. It is available at http://www.ibama.gov.br. 5. Also worthy of mention as part of the rst period are the individual decrees (based on the 1934 Forest Code) issued between 1937 and 1961, creating Brazils rst sixteen national parks (Drummond 1988, chapter 4). Additionally, thirtytwo decrees issued between 1944 and 1964, equally based on the 1934 code, created as many Federal Protective Forests, mostly in the greater Rio de Janeiro area (Rio was the capital of Brazil until 1960). They protected secondary forests and their watersheds. These units, although individually small, currently cover a respectable 2.4 percent (1,050 km2) of the area of the state of Rio de Janeiro and most of them effectively supply water to urban areas. See the texts of most of these two series of decrees in Rocha 1986; see also the Appendix of Drummond 1997b. 6. But Drummond (1997b) shows the tensions present in the creation of the Serra do Bocaina National Park (state of Rio de Janeiro), in 1971, when two distinct federal agencies collided head on, each seeking to fulll their respective goals of land reform and environmental preservation. 7. Despite the existence of more than fty national forests, some dating back to the 1950s, the rst bidding process ever for the logging of a Brazilian national forest (Tapajs, located in the state of Par) was aborted in late 1997. IBAMA yielded to the opposition of environmentalists and local dwellers. Pdua (1997) presents a sharp analysis of the important role that national forests could play in a macro regional conservation strategy of Amazonian forests in Brazil.
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8. Pdua (1978, 1983) provides the best contemporary overviews of Brazilian conservation policies stemming from the 1965 Forest Code. Urban (1998) is a valuable blend of analysis, interviews and information about past and present conservation issues in Brazil. A more recent reference text on conservation units is Ibama and Empresa das Artes (1997). The pre-2000 legal foundations and goals of all types of Brazilian conservation units are discussed in detail in Candur and Santos 1995. Dourojeani and Pdua (2001) present the most updated arguments in favor of restricted conservation units, as opposed to sustainable use units. However, the legal framework for conservation was deeply changed by the still recent (2000) SNUC Law and its regulation (see below). 9. Leites book, Dano Ambiental: do Individual ao Coletivo Extrapatrimonial explains this transition from culpability or intent to objective responsibility, as related to environmental violations and shows the role of the state in enforcing the principle of sustainable development. He emphasizes, however, the difculties of restoring environmental quality after the iniction of serious damage. 10. Guimares (1991) provides the most thorough analysis of the origins of Brazilian environmental policies created since the late 1970s. It should be added that Law 9.028, of April 12, 1995, updated the text of the 1981 law. 11. CONAMA in itself was an independent factor in stimulating state and local governments to create their own environmental quality agencies, in order to achieve standing in this forum. The Ministry of the Environment was created in 1993. 12. A complete collection of the full texts of CONAMAs resolutions from 1984 to 1999 is found in Pinto and Almeida (1999). A good introductory text to the complex issue of EISs in Brazil is Milar & Benjamin 1993; Bursztyn 1994 is an advanced discussion about environmental regulation and management in Brazil. See also Macedo 1994; Mirra 1998. Public hearings have made EIS procedures quite popular and there is now a demand for reference texts explaining the legal and scientic concepts used in them. One such text is FEEMA 199. 13. Article 5 of the 1988 Federal Constitution states that the public action or suit involves four values that are at the heart of the relationship between governments and citizens: public patrimony, administrative morality, the natural environment and the cultural patrimony. (See Graf & Figueiredo 2001.) 14. IBAMAs homepage is http://www.ibama.gov.br. 15. For information about this position, see the homepage of Brazils Ministry of Science and Technology (http://www.mct.gov.br). 16. In response to serious problems with air quality, the city of So Paulo, Brazils largest, has adopted since 1997 the most encompassing program in the world for the restriction of the use of private automobiles. Its cornerstone was one-dayper-week bans on the use of each privately owned automobile in a wide portion of the large urban perimeter of the city. More recently, a proposal for two-daysper-week bans for each vehicle was proposed by the city government. 17. Gene Giants is the nickname of a group of multinational companies dealing in biotechnology. 18. The homepage of the Ministry of Foreign Affairs states that Brazil should not miss the opportunity of using GMO technology. See http://www.mre.gov.br. See also the distinct position of the Ministry of the Environment, at http:// www.mma.gov.br. 19. About Brazils process of developing Agenda 21, see http://www. mma.gov.br. 20. It should be added that Brazil has made swift progress in the matter of banning ozone-depleting CFCs, another pressing issue linked to international agreements and commitments. See http://www.mct.gov.br. 21. This position has been defended by many anthropologists and activists, who argue that in many places nature is healthier with resident traditional communities who use natural resources in accordance to their needs. Digues (1996)
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presents a summary of this argument. Traditional conservation concepts are defended in Dourojeani and Pdua (2001). 22. The Brazilian House of Representatives tends to adopt the premise that the environmental crimes law abrogates the Forest Code, but specialists, such as Milar, consider that the violations listed in the 1965 Forest Code are still valid. 23. An ongoing issue that is worth mentioning is the matter of changes in the 1965 Forest Code, sought by farmers and their lobbyists and resisted by environmentalists. An inuential group of federal representatives has been trying over the last few years to introduce changes in the code. Their goal is to reduce the legally dened percentages of private properties that must be conserved under native vegetation in all Brazilian biomes (this requirement goes back to the permanent protected areas of the 1934 Forest Code). On this matter, see Lima and Leito (1999) and Mercadante (1999). 24. Simone Wolff, from the Ministry of the Environment, is currently in charge of consolidating federal environmental legislation.
REFERENCES
Antunes, P. de B. (2001) Direito Ambiental. Rio de Janeiro: Lumen Juris. Aquino, T. (1979) Importncia da Estao Ecolgica no Sistema Nacional de Conservao do Meio Ambiente, Boletim FBCN 14: 8184. Barros, W. D. (1974) Legislao de Conservao da Natureza, Boletim FBCN 9: 2835. Barros, W. D. (1952) Parques Nacionais do Brasil. Rio de Janeiro: Servio de Informao Agrcola do Ministrio da Agricultura. Barroso, L. R. (1992) A Proteo do Meio Ambiente na Constituio Brasileira, Cadernos de Direito Constitucional e Cincia Poltica 1: 11542. Barros-Platiau, A. P. (2000) Vers quel droit de la Protection international de l environment? La participation du Brsil dans la dveloppment des rgimes de la biodiversit et du contrle du changement climatique. Ph.D. diss., Universit Sorbonne, Paris. Barros-Platiau, A. F., and M. D. Varella (2000) Direito e Biodiversidade. O Protocolo Internacional de Biossegurana e as Implicaes Jurdicas de sua Aplicao Para o Mundo em Desenvolvimento. In Inovaes em Direito Ambiental, edited by J. R. Leite. Florianpolis: Fundao Boiteux. Blart, J. L. (1976) Por uma Poltica Nacional de Conservao, FBCNBoletim Informativo 11: 4748. Bernardes, Aline T., Angelo B. M. Machado, and Anthony B. Rylands (1990) Fauna Brasileira Ameaada de Extino. Belo Horizonte: Biodiversitas. Berutti, P. (1974) Poltica de Conservao da Natureza, Brasil Florestal 20 (October December): 37. Brazil. Ministrio da Agricultura. Instituto Brasileiro de Desenvolvimento Florestal and Fundao Brasiliera de Conservao da Natureza (1982) Plano do Sistema de Unidades de Conservao do BrasilII Etapa. Braslia: Ministrio da Agricultura. Brazil. Ministrio da Agricultura. Instituto Brasileiro de Desenvolvimento Florestal (1978) Diagnstico do Subsistema de Conservao e Preservao de Recursos Naturais Renovveis. Braslia: Ministrio da Agricultura. Instituto Brasileiro de Desenvolvimento Florestal. Brazil. Ministrio da Agricultura. Instituto Brasileiro de Desenvolvimento Florestal (1979) Diretrizes para a Poltica Florestal BrasileiraPerodo 19791985. Brasilia, Ministrio da Agricultura. Instituto Brasileiro de Desenvolvimento Florestal.

Brazil. Agncia Nacional de guas (ANA) (2001) Legislao Bsica. Braslia, Agncia Nacional de guas. Bruck, E. C. (1983) Unidades de Conservao, Revista do Servio Pblico 111(4): 2127. Bursztyn, M. A. (1994) Gesto Ambiental. Braslia, IBAMA. Candur, L. S., and L. A. Santos (1995) Unidades de Conservao da Natureza Conceitos Bsicos, Denies e Caracterizao GeralSituao no Estado do Rio de Janeiro. Rio de Janeiro: FEEMA. Carvalho, J. C. (1977) O Papel das Entidades No-Governamentais na Conservao da Natureza, FBCNBoletim Informativo 12: 4953. Carvalho, J. M. (1987) Os BestializadosO Rio de Janeiro e a Repblica que no foi. So Paulo: Companhia das Letras. Crespo, S., and P. Leito (1993) O que o Brasileiro pensa da ecologia. Rio de Janeiro: MAST, CETEM e ISER. Crespo, S. (1998) O que o brasileiro pensa do meio ambiente, do desenvolvimento e da sustentabilidade. Rio de Janeiro: MAST, ISER, MCT e MMA. Dean, W. (1976) Rio ClaroA Brazilian Plantation System, 18201920. Stanford: Stanford Univ. Press. Dean, W. (1995) With Broadax and FirebrandThe Destruction of the Brazilian Atlantic Forest. Berkeley: Univ. of California Press. Digues, Antnio Carlos (1996) O Mito Moderno da Natureza Intocada. So Paulo: HUCITEC. Dourojeani, M., and M. Pdua (2001) BiodiversidadeA Hora Decisiva. Curitiba: Editora da Universidade Federal do Paran. Drummond, J. (1997a) O Sistema Brasileiro de Parques Nacionais: Anlise dos Resultados de Uma Poltica Ambiental. Niteri: Editora da Universidade Federal Fluminense. Drummond, J. (1997b) Devastao e Preservao AmbientalOs Parques Nacionais do Rio de Janeiro. Niteri: EDUFF. Drummond, J. (1988) National Parks in Brazil: A Study of 50 Years of Environmental Policy (With Case Studies of the National Parks of Rio de Janeiro). Masters thesis, Evergreen State College, Olympia, Washington. Farias, P. J. L. (1999) Competncia Federativa e Proteo Ambiental. Porto Alegre: Srgio Antnio Fabris Editor. FEEMA (1992) Vocabulrio Bsico de Meio Ambiente. Rio de Janeiro: Petrobrs. Fonseca, D. S. (1999) Discusso da Responsabilidade Penal das Pessoas Jurdicas nos Delitos Ambientais. In A Proteo Jurdica das Florestas, vol. 2, edited by A. H. Benjamin. [So Paulo]: Instituto O Direito por um Planeta Verde. Franco, J. L. A. (2002) Proteo Natureza e Identidade Nacional: 19301940. Ph.D. diss., Departamento de Histria, Universidade de Braslia, Braslia. Franco, J. L. A., and Jos Drummond (2005) full details to follow Goldenberg, M. (ed.) (1992) Ecologia, Cincia e Poltica. Rio de Janeiro: Revan. Graf, A. C. B., and G. J. P. de Figueiredo (2001) Proteo do Meio Ambiente e do Errio: Um novo Paradigma para a Advocacia Pblica, Revista Advocacia Pblica, VII. 16 ed. (December): 1418. Guimares, R. (1991) The Ecopolitics of Development in the Third World: Politics and Environment in Brazil. Boulder: Lynne Rienner. IBAMA, and Empresa das Artes (1997) Parques Nacionais do Brasil. Braslia: IBAMA. Kiss, A., and J. P. Beurier (2000) Droit international de lenvironnement. Paris: Pedone. Leis, H. R. (ed.) (1991) Ecologia e Poltica Mundial. Rio de Janeiro, FASE e AIRIPUC-RJ; Petrpolis: Vozes.
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Leite, J. R. M. (2000) Dano Ambiental: do Individual ao Coletivo Extrapatrimonial. So Paulo: Editora Revista dos Tribunais. Leite, J. R. M. (2001) Estao Ecolgica e Reserva Biolgica. Direito Ambiental Posto ou Aplicado? In Direito Ambiental das reas Protegidas, edited by A. Benjamin. So Paulo: Forense Universitria. Lima, A., and S. Leitao (1999) As Medidas Provisrias n. 1.605-30/98, 1.736-31/98 e 1.736-32/98 e as Alteraes no Cdigo Florestal. So Paulo: Instituto Socioambiental. Macedo, R. (1994) Gesto Ambiental. Rio de Janeiro: ABESAIDIS. Machado, P. (2000) Direito Ambiental Brasileiro. So Paulo: Malheiros. Machado, P. (2001) reas Protegidas: a Lei n. 9.985/2000. In Direito Ambiental das reas Protegidas, edited by A. Benjamin. So Paulo: Forense Universitria. Machado, P. (1995) Engenharia Gentica e Meio Ambiente. In Ao Civil Pblica, edited by E. Milar. So Paulo: Revista dos Tribunais. Magnanini, A. (1966) Conceitos de Conservao, FBCNBoletim Informativo 1: 1322. Medauar, O. (ed.) (2002) Coletnea de Legislao Ambiental e Constituio Federal. So Paulo: Revista dos Tribunais. Meirelles, H. L. (1999) Mandado de Segurana, Ao Popular, Ao Civil Pblica, Mandado de Injuno, Hbeas Data. 21st ed. So Paulo: Malheiros. Mercadante, M. (1999) A Medida Provisria 1.736 e a Legislao Florestal. A Edicante Histria de um Tiro que Saiu Pela Culatra. In A Proteo Jurdica das Florestas, vol. 2, edited by A. H. Benjamin. [So Paulo]: Instituto O Direito por um Planeta Verde. Milar, . (2001) Direito do Ambientem. 2 ed. So Paulo: Revista dos Tribunais. Milar, ., and A. H. Benjamin (1993) Estudo Prvio de Impacto Ambiental. So Paulo: Editora Revista dos Tribunais. Mirra, A. (1998) Impacto Ambiental. Aspectos da Legislao Brasileira. So Paulo: Oliveira Mendes. Nogueira Neto, P. (1980) Um Novo Conceito de Estao Ecolgica, Boletim FBCN 15: 3739. Nogueira Neto, P. (2001) Evoluo Histrica das ARIEs e APAs. In Direito Ambiental das reas Protegidas, edited by A. H. Benjamin. So Paulo: Forense Universitria. Pdua, J. A. (1997) Problemas e Perspectivas de uma Relao Sustentvel com a Floresta Amaznica Brasileira. Rio de Janeiro: FASE. Pdua, M. T. (1978) Categorias de Unidades de Conservao: Objetivos de Manejo, BoletimFBCN 13: 78 84. Pdua, M. T. (1983) Os Parques Nacionais e as Reservas Biolgicas no Brasil. Braslia: Instituto Brasileiro de Desenvolvimento Florestal. Pdua, M. T., and A. F. Coimbra Filho (1979) Os Parques Nacionais do Brasil. Madrid: Instituto de La Caza Fotograca y Ciencias de La Natureza; Instituto de Cooperao Iberoamericana. Pereira, S. M. (1980) Legislao Ambiental: Problemas Fundirios, Brasil Florestal 10(43): 715. Pinto, W. De D., and M. Almeida (1999) Resolues do Conselho Nacional do Meio AmbienteCONAMA, 1984/1999. Srie Ambiental. Braslia: Ambiental. Prado, C., Jr. (1942) Formao do Brasil Contemporneo. So Paulo: Brasiliense. Prado, L. (1998) Crimes contra o Ambiente. So Paulo: RT. Reis, M. S. (1983) Recursos Florestais no Brasil, Revista do Servio Pblico 3(4): 716. Rocha, C. M. (ed.) (1986) Legislao de Conservao da Natureza. 4th rev. ed. So Paulo: Centrais Eltricas de So Paulo/Rio de Janeiro: Fundao Brasileira de Conservao da Natureza. Silva, J. A. (2000) Direito Ambiental Constitucional. 3d ed. So Paulo: Malheiros.

Strang, H. E., A. Magnanini, and W. D. Barnes (1982) Parques Estaduais do Brasil: Sua Caracterizao e Essncias Nativas mais Importantes. Tese Apresentada ao Congresso Nacional sobre Essncias Nativas, Campos do Jordo (SP), 1218 de set. Tresinari, A. B. (1983) Evoluo do Conceito de Parques Nacionais e Sua Relao com o Processo de Desenvolvimento, Brasil Florestal 13(54): 1328. Urban, T. (1998) Saudades do MatoRelembrando a Histria da Conservao da Natureza no Brasil. Curitiba: Editora da UFPr, Fundao Boticrio de Proteo Natureza, Fundao Macarthur. Van Acker, F. (1997) Breves consideraes Sobre a Resoluo 237, de 19.12.1997, do CONAMA, que estabelece critrios para o Licenciamento Ambiental. In Revista de Direito Ambiental. So Paulo: RT. Varella, M., and A. Barros-Platiau (2000) Biotecnologias e Biossegurana: Fatores Agravantes da Desigualdade Internacional?, Revista de Informao Legislativa do Senado Federal, 37(145): 119 33. Viola, E., and H. Les (1995) Meio Ambiente, Desenvolvimento e CidadaniaDesaos para as Cincias Sociais. So Paulo: Cortez; Florianpolis, Editora da UFSC. Viola, E. (1986) O Movimento Ecolgico no Brasil (19741986): Do Ambientalismo Ecopoltica. Srie Cadernos de Cincias Sociais, vol. 5, no. 4. Florianpolis: Universidade Federal de Santa Catarina. Wiedman, S. (2001a) Reserva de Desenvolvimento SustentvelRDS. In Direito Ambiental das reas Protegidas, edited by A. Benjamin. So Paulo: Forense Universitria. Wiedman, S. (2001b) Reserva Particular do Patrimnio NaturalRPPNna Lei 9.985/2000 que instituiu o Sistema Nacional de Unidades de Conservao SNUC. In Direito Ambiental das reas Protegidas, edited A. Benjamin. So Paulo: Forense Universitria. Wolff, S. (2000) Legislao Ambiental Brasileira. Grau de Adequao Conveno sobre Diversidade Biolgica. Braslia: Ministrio do Meio Ambiente.
LAWS CITED Brazil
Animal Protection Law (Lei de Proteo dos Animais / Cdigo de Caa), Law 5.197, 3 January 1967, Dirio Ocial da Unio (DOU), 5 January 1967. Biosecurity Law (regulated the use of GMOsgenetically modified organismsin Brazil), Law 11.105, 24 March 2005, DOU, 28 March 2005. CONAMA Resolution 001/1986, 23 January 1986, DOU, 4 August 1986 (introduces environmental impact statements). CONAMA Resolution 237/97, 22 December 1997, DOU, 22 December 1997 (establishes environmental licensing process for productive activities). Decree 73.030, 30 October 1973, DOU, 30 October 1973 (creates the Secretaria Especial do Meio Ambiente). Decree-law 9.760, 5 September 1946, DOU, 6 September 1946 (denes public control over inter-tidal lands). Decree-law 289 1967, 28 February 1967, DOU, 28 February 1967 (creates the Instituto Brasileiro de Desenvolvimento FlorestalIBDF). Decree-law 554, 25 April 1969, DOU, 25 April 1969 (excludes rural enterprises from land reform measures). Diffuse Interests Law/Civil Public Action Law (Lei dos Interesses Difusos / Lei da Ao Civil Pblica), Law 7.347, 24 July 1985, DOU, 25 July 1985. Environmental Crimes Act (Lei de Crimes Ambientais), Law 9.605, 12 February 1998, DOU, 17 February 1998.
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Forest Code (Cdigo Florestal), Decree 23.793, 23 January 1934, DOU, 21 March 1935. Hunting Code (Cdigo de Caa), Decree-Law 5.894, 20 October 1943. Land Statute (Estatuto da Terra), Law 4.504, 30 November 1964, DOU, 30 November 1964. Law 7.735, 22 February 1989, DOU, 23 February 1989 (creates the Instituto Brasileiro de Meio Ambiente e dos Recursos Naturais RenovveisIBAMA). Law 9.028 (updated the National Environmental Policy Law of 1981), 12 April 1995, DOU 13 April 1995; corrected DOU 17 April 1995 and 19 April 1995. Law 9.433, 8 January 1997, DOU, 9 January 1997 (creates the National Policy for Water Resources). Law 9.984, 17 July 2000, DOU, 18 July 2000 (creates the National Waters Agency ANA). National Environmental Policy Law (Lei da Poltica Nacional do Meio Ambiente), Law 6.938, 31 August 1981, DOU, 2 September 1981. National System of Conservation Units Law (Lei do SNUC), Law 9.985, 18 July 2000, DOU, 19 July 2000. New Forest Code (Novo Cdigo Florestal), Law 4.771, 15 September 1965, DOU, 16 September 1965. Provisional Act 218035 (empowers the Attorney General of the Union to solve conicts between administrative agencies), 24 August 2001, DOU, 27 August 2001. Water and Mines Code (Cdigo de guas e Minas), Decree 24.643, 10 July 1934, DOU, 10 July 1934.
United States of America
National Environmental Policy Act of 1969, 42 USC 4321 et seq.

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Brazilian Environmental Laws and Policies, 19342002: A Critical Overview

I. OBJECTIVES AND METHOD

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III. PRIOR TO 1934A BRIEF INSTITUTIONAL CONTEXT

LAW & POLICY

IV. THE FIRST PHASEFROM 1934 TO 1964

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V. THE SECOND PHASEFROM 1964 TO 1988

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VI. THE THIRD PHASEFROM 1989 TO 2002 (AND BEYOND)

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Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 103

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Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 105

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Drummond & Barros-Platiau BRAZILIAN ENVIRONMENTAL LAWS 107

LAWS CITED Brazil

108 LAW & POLICY

National Environmental Policy Act of 1969, 42 USC 4321 et seq.

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