For Brazil, a country in which the Amazon forest covers 60 per cent of the land area, environmental issues are never far from the table. So when the Brazilian senate approved legislation on 6 December updating the nation’s forestry code, controversy was bound to ensue.
The code, which dates from 1965, has polarised opinion between farmers welcoming a simplification of deforestation rules, and environmentalists accusing it of jarring with Brazil’s UN-endorsed commitment to reduce carbon emissions by between 26 and 28 per cent by 2020. Even among Brazil’s legal community, opinion is far from unified.
According to Trench, Rossi e Watanabe Advogados partner Ana Beatriz Kesselring, who says that the environmental lawyers at her firm are “also environmentalists”, the update to the forestry code should not necessarily be welcomed with open arms. “The problem with the new text of the forest code is that in some ways it paves the way for an increase of deforestation in the Amazon area,” she says.
One of the most important rules enshrined in the forestry code is the denomination of a legal reserve area. Depending on the region of Brazil a farm or piece of real estate is located in, it must leave aside a percentage of the total land area untouched. In the Amazon region, this can constitute up to 80 per cent.
The updated version grants an amnesty to farmers who violated the legal reserve area before 2008. “In my opinion this is not a very good position, because it was something illegal,” says Kesselring. Instead of paying the usual fine, farmers will be allowed to compensate for the legal reserve area they deforested by designating another part of their land to be returned to its natural state. “I think this opens the possibility for more deforestation, and it’s something very difficult for the environmentalists to agree with,” she says.
Felsberg, Pedretti e Mannrich Advogados e Consultores Legais associate Fernanda Vianna Stefanelo also points out that the amnesty undermines the efforts that law-abiding farmers have made to ensure the requisite area of their land is protected. “There are no benefits for those that comply with the law – you are not being fair to those who protected their vegetation,” she says.
But Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados partner Lina Pimentel Garcia says that, in her opinion, “compensation of legal reserve is an interesting provision of our forestry code.” She believes that a less restrictive system which grants farmers more flexibility over which part of their land falls under the protected legal reserve will make things clearer, as well as easier for the authorities to implement.
Garcia sees some of the controversy surrounding the code as a fundamental misunderstanding of what it is setting out to achieve. “In my point of view the forestry code is a code of agricultural development with some respect of environmental issues. It’s not really environmental or conservation legislation, but more about how to exploit and develop the countryside respecting environmental issues,” she says.
Felsberg Pedretti associate Tasso Cipriano agrees: “The aim of the bill is to make the rules a bit more flexible in order to allow for more projects to be undertaken here in Brazil.”
For Demarest e Almeida Advogados Luiz Fernando Sant’Anna, the code is an improvement largely on the basis of the increased pragmatism that the simplification of legislation brings. “The benefits of the new legislation will be to try and give practical solutions to a situation that has evolved over the years because of the lack of enforcement of the old forest code,” he says.
As for the implications for businesses and foreign investors, Sant’Anna says: “It’s a good thing because one of the main issues is the fact the new legislation brings more predictability. The fact you have a clear framework will certainly serve as an incentive for new projects to be developed.”
Pinheiro Neto Advogados partner Antonio José Monteiro contests the idea that the new legislation is negative for Brazil’s environment. “The reason why I expect more protection to the forestry in Brazil is because the way the law is written today makes it impossible to comply with because everything is forbidden. The general feeling is that this law is not effective. We hope that the new code will be respected because it is designed effectively. And in the agricultural sector, the general feeling is that it will be possible to respect and obey this new law. It’s difficult to fulfil the obligations because the environmental authorities don’t give you any options,” he says.
Cipriano says that one of the previous areas of confusion surrounded the overlap between the legal reserve areas and what are known as areas of permanent protection. Farmers were unsure as to how much land needed to be left in its natural state, and so failed to comply. These are geographically important areas, usually surrounding mountains or rivers. “For example, if a river is 15 metres wide, you will have a certain number of metres surrounding it which have to be protected,” he says.
Another hole in the former law is something of an old chestnut in Brazil – the conflict between federal, state or municipal authorities. The old law failed to make clear the criteria under which projects would be licensed by the separate environmental protection agencies. “Now with this new piece of law we’ve got clearer criteria to guide when one or another environmental protection agency should license a project. If it’s local, then it falls under municipal jurisdiction, whereas the federal agency has control over projects carried out in areas which border with another country,” Cipriano says.
Kesselring believes that the new legislation could be a source of future legal work as farmers will be more willing to comply with rules that they view as being more pragmatic. “What happens now is that private landowners just don’t take any action. They know how difficult it will be to reforest the area, but if the new code opens possible alternative solutions, probably the landowners will be interested in regularising their situation,” she says.
Sant’Anna is less convinced that the new legislation will provide more work opportunities: “The new legislation stands to reduce the amount of legal work because the current situation leads to more legal problems. We have many cases where farmers are trying to correct their legal situation, but because of the strict limits in the legislation, those proceedings tend to last longer given the legal limitations. If the legislation is more clear and predictable, I think that those proceedings would be simplified,” he says.
But perhaps the nearest bout of legal wrangling on the horizon will come in the form of dealing with the reaction to the bill, which has yet to be approved by President Dilma Rousseff – who has pledged to veto any bill that pardons those guilty of illegal deforestation. “I think that some sectors of the society they will want to discuss this new law in court. They will say it’s unconstitutional,” warns Monteiro.