Rio de Janeiro - São Paulo Environmental Lawyer & Lawyer Brazil

Alves Jacob Law Firm provides comprehensive assistance with environmental demands in the protective and consultative sphere assisting with licensing and interaction with the environmental regulatory agencies. We act in all levels of the Judiciary System and with all varieties of cases that relate to this issue. We work with the agencies that control the Environment as well as Non-Governmental Organizations.

The main principles and tools that guide environmental rules in Brazil were incorporated in the 1988 Federal Constitution.

The Constitution dedicates a whole chapter (chapter 6 - article 225) to address the environment, which establishes the public's right to a balanced environment and a general responsibility for the government and citizens to protect the quality of the environment for the present and future generations.

The Constitution also sets forth the government's detailed authorities and duties to guarantee efficacy of the right to a balanced environment, and the basis for the treble level of environmental responsibility, namely, administrative, civil and criminal.

Apart from the precise chapter on the environment, there are also other significant provisions that establish the constitutional background for environmental guidelines in Brazil, such as the article 170, which considers environmental protection as a fundamental code of the Brazilian economic order

It is important to mention that as per the procedures under the Brazilian environmental law, especially Law No. 6938/1981 and CONAMA Resolution No. 237/997, the licensing process that consist of three sequential phases, each corresponding to the issuance of three different licences:

• preliminary licence (LP): This licence is approved during the initial planning stage, through which it approves the enterprise or activity location and project, attests the environmental possibility and sets the basic and provisional requisites that need to be met during the next implementation stages according to the environmental impact assessment
• installation licence (LI): This licence enables the enterprise or activity pursuant to the specifications in the granted plans, programmes and projects, which includes the environmental control measures along with all other conditional requirements, which regulates the approval of the licence and
• Operating licence (LO): the licence authorises the operation of the activity or enterprise, after authentication of compliance with the conditions set forth in the preceding licences with the environmental control steps and conditions that are essential for the operation.

According to law, the absence of the environmental effect evaluation for the activities is considered as potential or actual agents of substantial environmental degradation. Whenever it is enforced, it prevents the environmental licensing of the activity because the assessment to be submitted by the enterprise will be the grounds for the environmental body's analysis of the licence request.

In the event that an enterprise start the activities without the environmental impact survey required (and, consequently, lacks the environmental licence) they may become accountable for environmental liability within administrative spheres (fine of up to million reais, under article 66 of Decree Law No. 6.514), civil liability (remediation and indemnification for any environmental damage) and criminal liability (penalties provided for in Law No. 9.605/98, namely fines to the limit of 50 million reais, discontinuation of activities, bar to contracting with public administration and detention of the managers, among others).

Brazil possesses a set of national rules and also has adopted the key international rules on the Kyoto Protocol, but some matters related to certified emission abatement still leaves the absence of a clearer and more detailed guideline. Hence, it is expected that future legal regulations will define the following:

• the holder of the certified emanation reductions obtained in CDM projects are funded by public resources
• the legal ordering of the certified emission reductions, that gives more clarity in contracts involve its trade and
• the tax aspects of the certified emission reductions.