Environmental licensing is a preventive mechanism that aims to balance economic activities with the maintenance of environmental quality. It is essentially a form of preventive action taken by environmental authorities to prevent environmental damage and minimize risks.

According to The National Environmental Policy (Law 6.938/1981), constructors are required to obtain environmental licenses before initiating any construction, installation, expansion, or operation that may pollute or degrade the environment. These potentially polluting activities are mostly licensed by States and Municipalities, in accordance with Complementary Law 140/2011.

Defined by CONAMA Resolution 237/97, an environmental license is an administrative act that sets the conditions, restrictions, and control measures related to environmental protection that business owners must adhere to. The licensing agency must perform consistently and technically to ensure legal certainty to all parties envolved. The environmental licensing process comprises three steps: Preliminary License (LP), Installation License (LI), and Operation License (LO).

The current model is hindered by institutional weaknesses and a lack of resources, which impede efficient task completion. To address these issues, various initiatives are being implemented to establish a paradigm with less bureaucratic decision-making and greater participation from social actors. However, it is essential that these changes do not compromise environmental protection standards.

These initiatives include the Constitutional Amendment Proposal 65/2012, the Senate Bill 654/2015 (both archived) as well as the House of Representatives Bill 3.729/2004, which aims to become the new national benchmark for environmental licensing.

The Project of Law 3.729/2004 aims to establish a General Environmental Licensing Law, filling a gap that exists since the introduction of environmental licensing in 1981: the lack of a specific federal law dedicated to this subject, since there are only resolutions and scattered sections in the current legal framework. In May 2021, after various amendments and some objections to ts excessive flexibility and oversimplification of procedures, the PL was approved by the House of Representatives and forwarded to the Federal Senate (becoming Project 2.159/2021).

Currently, the project is under simultaneous review by the Senate’s Environment Commission (“CMA”) and the Agriculture and Agrarian Reform Commission (“CRA”) and has already received 79 amendments. It was scheduled for debate in November and again in December of the previous year, but was removed from the agenda on both occasions and is awaiting a new date.

The need to review national environmental licensing is urgent and requires the development of a model that can ensure both the preservation of the environment and legal certainty for the parties involved in the licensing process. Although conflicts are inevitable, the existence of a general law to regulate the matter is a significant help in finding appropriate solutions to differing views on the use and protection of natural resources in economic development projects. Therefore, monitoring legislative proposals is highly relevant to society and professionals in the field.

The Environmental Legal Team is avaible to assist and clarify any doubts.