Introduction to the Environmental Licensing (Brazil)

By Pedro Agão Seabra Filter, Pontifical Catholic University of Rio Grande do Sul (PUCRS)

Overview

As a country, with much of its territory covered by forests, and as a result of environmental concerns with sustainable development, Brazil has strict policies on the exploitation of its natural resources. Thus, in order for mercantile activities to implement some business, it is necessary for them to submit to a complex administrative process, the environmental licensing. In this context, this paper, in an introductory and brief manner, will explain in an objective and clear way what types of licensing and its procedures must be obtained as well as the competence of each of the federative entities to license.

The Environmental Licensing in Brazil

The Brazilian National Environmental Policy - PNMA has established the environmental licensing as an administrative instrument by which the competent environmental body of administration authorizes and establishes the conditions, restrictions and the measures for the environmental control that must be obeyed by the entrepreneur, physical or legal person, to locate, install, expand and operate undertaking or activities that may cause environmental degradation.

That is, any construction, installation, expansion, operation of establishments and activities that use environmental resources that are effective or potentially polluting, or capable of causing environmental degradation, must have previous licensing by the competent public agency.

The purpose of the Licensing is to ensure the preservation, improvement and recovery of environmental quality conducive to life, aiming to ensure the socioeconomic development, national security and the protection of the dignity of the human life.

The Competence of Federative Entities to License

Firstly, in order to be licensed, one must identify which federal entity is competent to do so. The process, the supervision and granting of licenses will be carried out by municipal, state or federal government agencies, depending on several aspects, such as the type of the activity developed or the size. The competence to license, the, is decentralized: each federative entity has its own environmental agency responsible for the licensing. In the case of the Union, for example, the licensing authority is the federal environmental agency, the Brazilian Institute for the Environment and Renewable Natural Resources - IBAMA.

According to CONAMA Resolution No. 237/97, the legal competence to license, when defined in function of environmental impacts, occurs in a territorial way, as follows:

a) Municipal Competence: if the direct impacts are local

b) State Competence: if the directs impacts reach two or more municipalities

c) Federal Government (Union) Competence: if the direct impacts reach two or more states;

Also, the Supplementary Law No. 140/11 has defined the competences for environmental licensing as a result for the activity practiced in the following terms:

FEDERATIVE BODY

Note: There is the possibility that, in the licensing, might have a supplementary or subsidiary action by the federative entities. In other words, in supplementary action, when a federative entity, such as a Municipality, has the competence to license, but does not have an environmental agency, the State of which it is a part will replace it. Yet in the subsidiary activity, a federative entity asks for other aid to license, in economic, administrative or technical aspect.

Types of Licensing

The licensing, at first, is made by three types of license: the prior, the installation and the operation, each type of license being related to different phases of the project of the intended venture: design/planning, installation/construction and operation. That is, it is a systematic process established according to a logical set of chaining.

However, in anomalous cases, such phases will be established according to the peculiarity of the enterprise, and may be issued independently or successively, due to the type of enterprise to be carried out.

Environmental licenses are established by Decree No. 99.274/90, in its article 19, and detailed in CONAMA Resolution No. 237/97, which are:

Preliminary License (Licença Preliminar - PL):

• This license will only be granted in cases in which the enterprise has environmental viability, as verified by the Environmental Impact Study (EIA). Approving the location and design of the enterprise, establishing the basic requirements and conditions to be met in the next phases of its implementation;

• Its validity period may be extended up to a maximum of 5 (five) years, if it has suffered delays, at the request of the license holder.

• The Preliminary License does not authorize the beginning of any works destined to the implantation of the enterprise;

Installation License (Licença de Instalação - LI)

• It authorizes the installation/construction of the enterprise according to the specifications contained in the programs and projects approved by the previous license. It approves the pre-operation, aiming at obtaining data and performance elements necessary to support the granting of the Operation License;

• Its validity period may be extended up to a maximum of six (6) years, if the maintenance of the original project and the environmental conditions existing at the time of its concession are proven.

• This License does not authorize the start of activities.

Operating License (Licença de Operação - LO)

• It authorizes the operation of the enterprise, after verification of the effective fulfillment of previous licenses, based on inspection findings, pre-operation reports, environmental audit reports, monitoring data or any technical means of verification of size and efficiency of environmental control and mitigation measures implemented;

• The term of validity of this license is at least 4 (four) years, and at most 10 (ten) years. If it is granted with a period of validity below the maximum, it may have its period of validity extended to the limit of 10 (ten) years, when:

a) Maintenance of existing environmental conditions upon granting them;

b) Voluntary implementation of an efficient environmental management program;

c) Absence of complaints and finding records and violation;

d) Correction of non-conformities from the latest environmental audit carried out.

Furthermore, due to the peculiarities of some projects, or due to the environmental resources involved, there will be specific environmental licenses. As, for example, in the activities of small agro industries and of low environmental impact, the following environmental licenses were established:

• Preliminary License and Installation License (LPI): authorizing the location and installation of slaughterhouses and establishments that process fish;

• Single Installation and Operation License (IOL): for other small-scale agribusiness activities with low environmental impact.

Note: an entrepreneur who builds, renovates, installs, or operates in any part of the national territory, potentially polluting establishments, works or services without a license or authorization from the competent environmental agencies, incurs the penalty of arrest and/or fine in the Brazilian Environmental Crimes Law.

Procedures for Obtaining

Licensing is a process that begins with the submission of the bidding process, that is, the application for licensing is sent to the competent environmental agency, where the following data will be informed:

• Company name and acronym (if any);

• Acronym of the agency where he / she applied for the license;

• Modality of the required license;

• Purpose of the license;

• Period of validity of license (in the case of publication of license grant);

• Type of activity to be developed

• Activity development site

Subsequently, the competent agency or body will issue to the entrepreneur the Term of Reference, which document will inform the guidelines for the elaboration of the Environmental Impact Study and the Environmental Impact Report - EIA/RIMA, required during the Prior License, guiding the technical team, defining the content, scope and methods to be used in the enterprise to be evaluated.

The Environmental Impact Study (EIA) is a scientific technical document that should cover the physical, biological and socioeconomic means of the area in which the enterprise will be given. It identifies the direct and indirect environmental impacts, positive and negative, immediate and medium and long term, temporary and permanent. Because the Environmental Impact Study (EIA) is a technical document, of an industrial nature, it holds public secrecy, and it is up to the Environmental Impact Report (RIMA) to give transparency to the enterprise, since it is a summary of clear, objective information, so that any interested party has access to the information.

Note: The Law No. 10.650/03 and the CONAMA Resolution No. 006/86 provides that data and information in the agencies and entities must be publicly accessible and available to the general public, and environmental permits must be published in any of its modalities, including applications for licensing. However, with respect to industrial secrecy, the Environmental Impact Study (EIA) has its access restricted.

To obtain the Installation License, it is necessary to prepare an Environmental Control Plan (PCA), containing projects to minimize negative environmental impacts and maximize the positive ones, both identified by the EIA / RIMA.

Please note that there are also other studies that address the environmental aspects which may also be configured as an input to the analysis of the required license, such as the Environmental Control Report (RCA) and the Emergency Action Plan (EAP), among others.

Finally, in order for the Operation License to be issued and the activities of the intended enterprise may start, the equipment and the conditions of the Licenses, Previous and Installation, will be supervised by the competent entities.

Note: Currently, IBAMA systematizes all the information produced on projects whose bidding processes are in progress, such as Technical Opinions, Licenses, Technical Notes and Terms of Reference, in its digital tool SISLIC (Environmental Licensing System).

Additional Resources

NATIONAL ENVIRONMENTAL LICENSING

ENVIRONMENTAL LICENSING HANDBOOK

FEDERAL ENVIRONMENTAL LICENSING PROCEDURES GUIDE

NATIONAL COUNCIL FOR THE ENVIRONMENT