BRAZILIAN LAWS AND CLIMATE CHANGES

By – Alexandre Leite Ribeiro do Valle and Carolina Pett G. Gonçalves – Article – ABA International Law News – Summer 2010 – Vol.39 n. 3

Our planet is suffering from the adverse effects of climate change.  These changes have affected all countries in the world in different forms and will continue unabated until the world’s population recognizes the seriousness of this environmental issue.  The readily apparent damage is, according to experts and environmental researchers, expected to worsen and cause further problems for the citizens, governments and non-governments organizations of the world.  Slowly, as recognition builds, a number of studies, strategies and political changes are being implemented to minimize the damage but every country must assume responsibility to alleviate this global crisis.

Brazil is a unique stakeholder in this environmental challenge.  It is South America’s largest country and borders all the continent’s other countries except Equator and Chile. Brazil is the world’s fifth largest country by geographical area and by population.  Its eastern coastline is over 7,491 kilometers and Brazil’s complex system of eight rivers, including the Amazon which is the world’s second longest and the largest in terms of volume of water, is arguably our planet’s most impressive.  The varied wildlife, natural environments, resources and protected habitats of Brazil and its complex ecosystems, including the Amazon rainforest, are also recognized as containing the greatest biological diversity in the world.  Approximately 60% of the Amazon basin which encompasses seven million square kilometers (five and a half million square kilometers of rainforest) is contained within Brazil.

Unfortunately, Brazil’s huge numbers are not limited to its environmental resources and diversity.  As recent research has demonstrated, Brazil is also the world’s fourth most prolific emitter of greenhouse gases.  Brazil’s position in this rank of shame is mainly attributable to illegal deforestation which represents 70% of its emissions.  Fortunately, this provides Brazil a great potential for reducing its greenhouse gas emissions by increasing surveillance of the forests areas and punishing those responsible for the illegal plundering of Brazil’s treasured resources.

According to official data, as of 2008 the Brazilian Amazônia forest had lost 713,226 kilometers of its original forest cover, the equivalent of 18% of the forested area within the region. In an effort to deter illegal deforestation, which is one of the Brazilian government’s main environmental concerns, the government has taken special unprecedented measures to deter predatory deforestation of its resources.  These measures include enhanced surveillance in the Amazonian area, increased physical inspections and policy surveillance, and electronic monitoring of the land through four remote sensing systems covering different time and space scales over a five million kilometer area.

In addition to these measures aimed at protecting the Amazônia forest and in an effort to enhance its global reputation in the struggle to reduce climatically induced environmental degradation, Brazil also recently approved new legislations on climate change and environmental issues incorporating most modern principles established by the relevant world organizations addressing these issues.

These concerns are not new for Brazilian governments.  Brazil’s apprehension about environmental issues are well reflected in its Federal Constitution which insures that “Brazilian citizens have the right to an ecologically balanced environment,  and both the Government and the community have the duty to defend and preserve it for present and future generations.”  Conduct and activities considered prejudicial to the environment are defined as criminal and subject to administrative and judicial punishment. (Brazilian Federal Constitution, Art. 225) In addition to the Constitution, several other specific legislation in the Federal, State, and Municipal levels, have been enacted since 1981which were intended to protect the environment.

Until recently Brazil’s main Federal legislation concerning environmental issues was the establishment of general policies on National Environmental Protection. (Law no. 6.938 dated 31 August 1981, amended by Law no. 7.804 dated 18 July 1989).  The most significant aspect of these provisions provided for the “preservation, improvement and recuperation of the environmental quality, adequate for life, assuring the country conditions for socio-economic development, for the interests of national security, and for the protection of the dignity of human life.” (Law no. 6.938, Art. 2)  Other main principles established by these laws was that special measures should be taken to achieve medium and long terms results, by promoting environmental education in all schools and levels in order to create a public consciousness of environmental issues.  Moreover, the law also provided for the establishment of new public policies regarding environmental issues that imposed the obligation to pay for and indemnify for the damages caused by those causing damage to the environment

Legal entities in Brazil may be subject to both criminal prosecution and the imposition of civil penalties for environmental damage.   An important aspect of Brazil’s legislative efforts is its Civil Code adoption of direct responsibility and strict liability for environmental damages.  Brazil also recognizes the protection of the environment as a collective right and therefore legal claims or investigations can be initialized by associations, groups or individuals when a risk of damages is perceived.  Environmental crimes now include deforestation and pollution of water and air.  Criminal penalties for environmental crimes range from six months to five years imprisonment and may also include monetary fines.  Aiders and abettors of environmental damage may also be held responsible.

Examples of environmental damage that may result in criminal prosecution include  destroying or damaging permanent preservation forests; unauthorized cutting of trees in such areas; causing fires in forests; unauthorized receipt or acquisition of timber, fuel wood, charcoal or other plant based products for commercial purposes; destruction or damage of native or planted forest; or, in general terms, causing pollution to such an extent that it results in damages to human health, animal deaths or significant damages to the flora.

To further protect the environment Brazil has also created a National Fund for Climate Change to finance efforts aimed at increasing deforestation control and prevention in the Amazônia area. The Fund is maintained by donations by those interested in supporting national efforts to reduce greenhouse gas emissions and is managed by the Brazilian Development Bank.  Funds may be used for the development of a variety of projects and activities including, education, capacity-building, training, scientific analysis, projects to reduce greenhouse gas  emissions and reduce carbon emissions from deforestation and forest degradation, development and dissemination of technologies to mitigate greenhouse gas emissions, research and development, and the development of products and services that contribute to the dynamics of environmental conservation and of stabilizing greenhouse gas concentrations.

Following recent discussions at the Copenhagen forum for climate change in 2009, Brazil also enacted laws establishing the National Policy on Climate Change setting forth principles, objectives, directives and instruments based on prevention, citizen participation, and sustainable development.  These recent developments include recognition of the duty to act now for the sake of present and future generations to reduce the impacts of anthropogenic interference with the climate system.  It requires measures be taken to prevent, avoid or minimize identified causes of climate change with anthropogenic origin within the national territory on which there is reasonable consensus among reputable scientists and technicians.   It also requires that any adopted measures take into consideration the different socio-economic contexts of their application and that the resulting financial burden be equitably distributed across economic sectors, populations and communities in a balanced way.  The National Policy recognizes that sustainable development is the key to addressing climate change but must be reconciled with serving the common and particular needs of the populations and communities that live in the national territory.

The National Policy on Climate Change aims to make social-economic development compatible with the protection of the climate system and encourages the development of the Brazilian Emissions Reduction Market.  Among the other goals of the National Policy are reduction of anthropogenic greenhouse gas emissions and promotion and  adaptation to climate change with the participation and collaboration of concerned economic and social agents and beneficiaries, particularly those more vulnerable to the adverse effects of climate change.  The National Policy also seeks the preservation, conservation, recovery and rehabilitation of environmental resources, particularly the large, natural biomes regarded as Brazil’s national heritage and the consolidation and expansion of legally protected areas with incentives for reforestation and re-composition of vegetation cover in degraded areas.

The directives of the National Policy on Climate Change also require continued adherence to the commitments Brazil has undertaken at the United Nations Framework Convention on Climate  Change, the Kyoto Protocol and other future climate change commitments aimed to promote international cooperation bilaterally, regionally and multilaterally for financing, capacity-building, development, transfer and diffusion of technologies and processes for mitigation and adaptation actions, including scientific research, systematic observation and exchange of information.  Brazil also plans to establish through specific legislation, fiscal and tax measures destined to stimulate emissions reduction and removals of greenhouse  gases, including differentiated tax rates, breaks, exemptions, compensations and incentives, as well as specific lines of credit and financing from public and private financial agents;

The law foresees future legislation to better define the practical actions to be undertaken by the executive power.  These future goals include consolidation of a low-carbon consuming economy for the sectors of energy generation and distribution; urban public transport and modal interstate cargo and passenger transportation systems; manufacturing industry and durable consumer goods industry; fine chemicals industry and basic chemicals industry; paper and cellulose industry; mining; civil construction industry; health care services; and agriculture and ranching, with a view to meet gradual quantifiable and verifiable anthropogenic emissions reduction targets, considering the specificities of each sector, including via the Clean Development Mechanism – CDM and via Nationally Appropriate Mitigation Actions- NAMAs.

Brazil is committed to reducing its emission of greenhouse gases (GGE) within the range of 36.1% to 38.9% by 2020. (Law No. 12.187 dated 29 December 2009)  According to official data this would represent a reduction ranging from 975 million to 1.052 billion tCO2e. To achieve such an auspicious goal the main efforts will be concentrated in (i) reducing the deforestation rates in Amazônia by 80% and in the Cerrado by 40% in the next five years.  Brazil will also be establishing a national plan on air quality, focused primarily on the reduction of emissions of pollutant gases by the transport sector as on-road vehicles accounts for 90% of emissions of pollutants and CO2.  Finally, Brazil will be reassessing its national policies regarding electricity in favor of renewable and sustainable resources.

While Brazil has been taking an active role in the protection of the environment since early 1980, its earlier legislative and regulatory enactments aimed at protecting the environment failed to produce effective results. More recent legislation, however, has greatly strengthened Brazil’s environmental protections and should establish Brazil’s commitment to assuming a leading role in our planet’s environmental crisis.  Clearly, Brazil is committed to fulfilling its responsibilities in the battle against environmental degradation.  While much is still yet to be done, Brazil has taken significant steps to establish sustainable development and preserve its national heritage consistent with the needs of private industries and those more vulnerable to the adverse effects of climate change.

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