The Bill no. 3729/04 which sets forth provisions on environmental licensing and regulates item IV of paragraph 1 of article 225 of the Federal Constitution is currently pending that the Brazilian House of Representatives.
The purpose of the Bill is to offer a legal instrument to comprehensively regulate the environmental licensing and the drafting of an Environmental Impact Study and the respective Environmental Impact Report (EIA/Rima) of undertakings that will be using environmental resources or those undertakings potentially causing significant environmental degradation (General Law on Environmental Licensing).
Nowadays, the regulation of the environmental licensing process takes place by means of federal, state, and municipal legislations, as well as by means of administrative rules, some of them prior to the Federal Constitution of 1988. According the legislative bill´s rapporteur, the lack of a federal law on this matter has been giving rise to administrative and judicial questions regarding conflicts of jurisdiction as well as in relation to the constitutionality and lawfulness or the rules currently in force.
The bill under analysis by the House of Representatives is an alternate bill which contemplates several other bills that were already pending at the House of Representatives on this matter.
The bill reinforces the environmental agencies' autonomy given that this bill lays down that the decision-making power lies with these environmental agencies while acting in the capacity of licensing authorities. There is also a broader definition with respect to the role of the authorities involved the licensing process that are not part of the SISNAMA, clarifying that participation thereof has only an advisory nature, and is not binding upon the licensing authority's decision.
The possibility to offer special licensing conditions for undertakings that adopt environmental control technologies that have proven to be more effective have also been provided for. Standing out among these special conditions (i) the shortening of the deadlines for analysis, (ii) extension of time limits for renewal of the Operation License, (iii) abolition of environmental licensing stages or other applicable measures, at the licensing authority's discretion.
The text further lays down that the licensing authority may require from the undertaker some environmental damage prevention instruments which can be more interesting under the environmental' s viewpoint than the remediation instruments which are exclusively of corrective nature, provided that supported by a well-grounded technical opinion demonstrating the actual need for such instruments.
It is worth mentioning that the proposal alters the National Environmental Policy Act (Law no. 6938/81) including the strategic environmental assessment (AAE), an instrument that measures the environmental impacts of governmental policies or programs.
Another important point worth mentioning is the publicity and transparence of the licensing process, having been highlighted the disclosure, with an indication of the reasons, of the studies that have been rejected. The society´s involvement in the licensing process is expanded on account of public hearings requirements and public consultations on the internet.
The Bill which is currently pending and given high priority, was approved by the Committee on the Environment and will follow for analysis of the Committees on Finance and Taxation and Constitution and Justice, and Citizenship to be voted by the House of Representatives Full Bench.
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