Brazil’s National Environment Policy (Law 6.938/81)

Brazil’s National Environmental Policy — Política Nacional do Meio Ambiente, more commonly known in Portuguese as PNMA — is the policy that puts into practice Art. 225 from the Federal Constitution, aiming to regulate activities that may affect the environment.

This policy dates from 1981, before the Constitution of 1988 and within the global context of the United Nations Conference on Human Environment/ Stockholm Conference (1972). It is basically divided into four parts: objectives, principles, instruments and the SISNAMA, which is what I have focused on in this post, although the complete policy text contains a lot more information — I highly recommend the reading. You can find a link for the PNMA’s full text under References.

The PNMA contains one particularly important device: the legal definition for the concept of environment and environmental degradation within Brazilian Law:

Art. 3 (…), I – environment, the set of conditions, laws, influences and interactions within the physical, chemical and biological scopes that allows, shelters and rules life in all its forms.

Art 3 (…), II: environmental degradation, the adverse alteration of the environment’s characteristics.

These conceptual frameworks are indispensable in order to develop any environmental policy. It is the ground over which to build any and every following environmental policy.

Let’s dive into the policy itself now!

Objectives

There are seven objectives in the PNMA (Art.4):

I – to harmonize socio-economic development with the preservation of environmental quality and ecological balance; 

It’s interesting to note that even though the concept of sustainable development became widespread only in 1987 with The Brundtland Report, the PNMA, dating from 1981, already expressed the gist of such goal in this principle, albeit without the common terminology.

II – to define priority areas of government action relative to quality and ecological balance, serving the interests of the Union, the Estates, the Federal District, the Territories and Municipalities;

III – to establish criteria and standards for environmental quality and norms relative to the usage and management of environmental resources; 

This is an objective that is mostly carried out by CONAMA — see the “SISNAMA” section.

IV -to develop national research and technologies oriented towards the rational usage of environmental resources; 

V – to spread environmental management technologies, publish environmental data and information and create public awareness about the necessity of environmental quality preservation and ecological balance; 

VI – to preserve and restore environmental resources aiming for their rational usage and permanent availability, concurring to the maintenance of the ecological balance conducive to life; 

VII – to impose to the polluter and the predator the obligation to restore and/or compensate the damages caused and, to the user, the contribution for the usage of environmental resources with economic purposes.

This is the classic “polluter-pays” principle of environmental law.

Note: these are the specific objectives of the PNMA; Art.2 caput states its general objectives :

Art. 2 – The PNMA’s objectives are the preservation, improvement and recovery of the environmental quality that is necessary to enable life, aiming to ensure the conditions for the the country’s socio-economic development, the interests of national security and the protection of the dignity of human life (…)

I will spare you from my criticism of the high dosage anthropocentrism we can see above for the time being… moving on:

Principles

These are the guiding principles of the PNMA (Art.2):

I. to create government action for the maintenance of the ecological balance, considering the environment as a public property to necessarily be secured and protected with the purpose of collective usage;

The public property italicized above means that there is a collective interest in the preservation of the environment, and as such, it is impossible to own it.

II. to rationalize the usage of soil, the underground, water and air;

Ill – to plan and surveil the use of environmental resources;

IV – to protect ecosystems, preserving representative areas;

V – to zone and control potentially or effectively polluting activities;

VI – to create incentives to study and research technologies oriented to the rational use and protection of environmental resources;

VII – to monitor the status of environmental quality;

VIII – to restore degraded areas;

IX – to protect areas threatened by degradation;

X – to create environmental education in all education levels, including the education of the community, with the purpose of qualifying it for active participation in environmental protection; 

All well and good here!

Instruments

These are the instruments of the PNMA (Art.9):

I – establishing standards for environmental quality;

Again, this is CONAMA’s competence, for the most part.

II – environmental zoning; 

This is the practice by which a piece of land — either on the federal, state or municipal spheres — is divided into zones where certain activities are allowed or prohibited.

III -environmental impacts assessment; 

This is the famous EIA-RIMA, a comprehensive environmental study carried out by potentially polluting enterprises laying out all the environmental risks of such enterprise. The EIA is the full, detailed study, whereas the RIMA is a type of summary report of this study that must be understandable to the general population. This instruments relates directly to the constitutional device present in Art.225, IV of Brazil’s Constitution: ” demand, in the manner prescribed by law, for the installation of works and activities which may potentially cause significant degradation of the environment, a prior environmental impact study, which shall be made public” (see the post The Environment in Brazil’s Federal Constitution )

IV – licensing and revising effectively or potentially polluting activities;

This is the environmental licensing instrument, always a source of quarrels in the political sphere between those who want it to be easier to license their polluting activities and those who want it to be more difficult in favor of environmental preservation.

V – incentives to producing and installing equipments and creating or absorbing technologies directed to the improvement of environmental quality.

VI – creating ecological reserves and stations, areas of environmental protection and of relevant ecological interest, by the Federal, State and Municipal spheres;

This instrument relates directly to the constitutional device present in Art.225, III of Brazil’s Constitution: “define, in all units of the Federation, territorial spaces and their components which are to receive special protection, any alterations and suppressions being allowed only by means of law, and any use which may harm the integrity of the attributes which justify their protection being forbidden;” (see the post The Environment in Brazil’s Federal Constitution )

VI – creating especially protected territorial spaces via the Federal, State and Municipal spheres, such as environmental protection areas (APAs, in Portuguese), relevant ecological interest areas and extractive reserves;

The same thing noted above goes for this instrument.

 VII – the national system of environmental information;

VIII- the Federal Technical Register for Activities and Instruments of Environmental Protection

IX – disciplinary or compensatory penalities to the non-fulfilliment of necessary measures to the preservation or correction of environmental degradation

This instrument relates to the Environmental Crimes Law — Law 9.605/98 —, paving the way for its edition… 17 years later.

X – the establishment of the Environmental Quality Report, to be published annually by the Brazilian Institute for the Environmental and Renewable Natural Resources – IBAMA;

XI – guaranteeing access to information relative to the environment, obligating the Public Power to produce them when they are nonexistent;

XII – the Federal Technical Register for activities that are potentially polluting and/or utilize environmental resources;

XIII – economic instruments, such as forest concessions, environmental servitude, environmental insurance and others.

Disclaimer: I have no idea if “servitude” is a real word used in Law vocabulary in English, this was a direct translation. If anyone knows whether this correct or not, tell me!

The National System for the Environment — SISNAMA

Okay, so, let’s take a look at how the PNMA is supposed to find its way into reality. The SISNAMA is the institutional system that is in charge of realizing this policy, and it’s divided into 6 main bodies:

The Superior Body — the Government Council

This body advises the presidency on environmental policy matters, aiding in the policy-making process within the Executive sphere.

The Deliberative and Consultive Body — CONAMA

This body advises and proposes environmental policies and guidelines to the superior body (the Government Council) and deliberates over norms and standards for environmental regulations.

The Central Body — Ministry for the Environment

This body plans, coordinates, oversees and controls the PNMA.

The Executive Bodies — IBAMA and ICMBio

These bodies are in charge of executing the PNMA. IBAMA is also the entity in charge of the environmental police power, meaning it’s the one that surveils the environment, applying fines, realising apprehensions, and surveilling environmental crime in general. This is an entity that has been under continuous strain since the election of anti-environmental protection president Jair Bolsonaro — himself having been fined over fishing in an illegal area. After becoming president, the agent who applied the fine to the president was mysteriously fired.

The Sectional Bodies — state level bodies or entities

These bodies are in charge of executing, controlling and surveilling the PNMA on the state level.

The Local Bodies — municipal level bodies or entities

These bodies are in charge of controlling and surveilling the PNMA on the municipal level. It is however important to note that not every municipality has such body.

Conclusion

The PNMA is a crucial landmark for Brazilian environmental policy. It’s the trunk of the tree, so to speak: every subsequent environmental policy has roots in it. It has been tremendously important particularly in what concerns the institutional arrangement of Brazil’s structure for its environmental management — i.e., the SISNAMA.

As we can see from the header photo for this post, even though it doesn’t show the borders in South America, it must be acknowledged that Brazil is quite a large piece of land. This has proven to be a nightmare for any sort of national management, taking into account, of course, the country’s young age and the lingering effects of colonization and imperialism.

I note this because the difficulty in implementing and surveilling the PNMA through such a large territory are immense. And not only the PNMA — the country’s Forest Code (a policy regulating vegetation use and protection) is also notably ineffective in remote areas the State can’t reach through its apparatus. “Remote” may seem like a small space somewhere to the west of Brazil but be not fooled: these are very, very large areas. Suffices to say you can look up Amazon deforestation rates and acres, and you can have an idea.

In addition, the environmental budget is not nearly sufficient for the needs we are currently facing, both as a national and as a global society. On top of this, we had the election of a far right president who couldn’t care less about environmental protection. Though he has been in power for only 6 months, some real damage has already been done.

We have amazing people fighting and struggling for Brazil’s environmental protection. They are underpaid (if paid at all), have to make do with outdated equipment, lack of equipment and personnel and not rarely violence, political oppression and powerful people mining their efforts. I would like to give a shout out for these people, they are a constant source of inspiration.

In any case, the PNMA, as a legal document, is quite thorough. If we could implement it completely, the outlook for Brazil’s environmental status would be very different. Its is my hope that we can move towards a green state as soon as possible, in order to render the PNMA 100% effective, because I truly think it’s a great policy, even though I would change a thing or two. I haven’t yet taken a look at some other national environment policies, but I believe its principles and mechanisms are logical, relevant and coherent with Brazil’s long-term objectives. Let’s see how we will carry them into the future.

References

BRASIL. Law nº 6.938/81. Available at: <http://www.planalto.gov.br/ccivil_03/leis/L6938.htm>

AMADO, F. Direito Ambiental. Editora Juspodivm, 2018.

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