DF Brazil
The legal action challenges a provisional measure from 2021 that provides for the automatic granting of environmental licenses for medium-risk companies, preventing licensing bodies from requesting additional information beyond that transmitted by the applicant in the National Network for the Simplification of Registration and Legalization of Companies and Businesses (Redesim) system.
The Supreme Federal Court (STF) understood that the automatic granting of environmental licenses for medium-risk companies is unconstitutional.
This is because environmental licensing has a constitutional basis and cannot be eliminated, even indirectly, by law. Nor can it be simplified to the point of being meaningless, unless the regulation that exempts licensing provides another instrument that ensures environmental protection of equal or greater quality.
Simplifying the procedure based on the argument of debureaucratization and economic development, with subsequent oversight, represents an unconstitutional step backward, as it departs from the principles of environmental prevention and precaution. Furthermore, the automatic granting of the license contradicts the specific regulation on environmental licensing, according to which economic activities with environmental impacts (whether potential or actual) are subject to state control.
With this ruling, the Court established the principle that the automatic granting of environmental licenses for the operation of companies that carry out medium-risk activities, in terms of the classification established in acts of the Public Power, is unconstitutional.
Based on this case, the Plenary, by majority vote, ruled the action partially admissible, seeking to interpret Article 6-A and paragraph III of Article 11-A of Law 14.195/2021, but not to apply them to environmental licenses. This case belongs to a group of strategic litigation cases known in Brazil as the “green package.” (“Green Guideline”).
According to what the Supreme Federal Court expressed in this case, the protection of an ecologically balanced environment (which includes climate commitments for the benefit of present and future generations) cannot be compromised by business interests or be dependent on exclusively economic motivations, insofar as economic development must occur in a sustainable manner.
In this context, the Court held that simplifying the procedure under the guise of debureaucratization and economic development, with only subsequent oversight, constitutes an unconstitutional setback in environmental and climate matters, as it departs from the principles of environmental prevention and precaution, as well as the prohibition against regression (principle of progressivity). Bypassing these processes is contrary to the specific constitutional provision on environmental licensing, according to which economic activities that cause environmental impact are subject to state control (Article 225, §1, IV, of the 1988 Constitution).
- Brazilian Socialist Party (PSB)
- Federative Republic of Brazil (Federal Union)
The action has national scope, as it is a federal regulatory act (provisional measure) of the Executive Branch of the Union. General regulations on environmental licensing fall under the jurisdiction of the Union in Brazil and must be applied not only by the federal public administration but also by state and municipal administrations. The simplification (and automation) of granting environmental licenses for activities considered low-risk would therefore affect all ecosystems within Brazilian territory, such as the Amazon, the Pantanal, the Cerrado, the Caatinga, the Atlantic Forest, the Pampas, and coastal systems.
- Brazilian Constitution
- National Environmental Policy Law
Principles invoked
- Principles of environmental prevention and precaution
- Principle of the prohibition of regression in environmental and climate matters (progressivity)
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