Environmental Newsletter – No. 1

The Environmental Law Newsletter aims to bring information about the main news, trends, innovations and legal and governmental guidelines in Brazil and abroad related to the topics of forest protection, environmental licensing, air quality, water resources, specially protected areas and all other issues related to environmental issues.

Enjoy Reading!

Demarest’s Environmental Team.

New 2023/2024 Safra Plan is announced

Announced in June, the 2023/2024 Crop Plan (in Portuguese, “Plano Safra”), forecasts a 26.8% increase in financing compared to 2022, through lines of credit, incentives and policies to support national agricultural production.

At launch, BRL 364.22 billion in rural credit was made available to business agriculture for funding and investment. Of the equalizable total, BRL 14.8 billion have been earmarked for medium and large corporate agriculture producers.

The increase in the available amounts is due to investment by the Brazilian Bank for Economic and Social Development (“BNDES”) through its own resources.

Compared to the previous edition, the 2023/2024 plan has reinforced the incentive and strengthening of environmentally sustainable production systems, with a reduction in interest rates for recovering pastures and rewards for rural producers who adopt more sustainable agricultural practices.

As such, one of the new programs that constitute the Safra Plan is Renovagro (formerly ABC+), the Program for Financing Sustainable Agricultural Production Systems, which has three modalities: (i) Environmental Renovagro; (ii) Renovagro Pasture Recovery and (iii) RenovAgro Demais.

Among the possible benefits of the Safra Plan are:

1. Cheaper access to credit for rural producers;
2. Stimulating enrollment in the Rural Environmental Registry (CAR) and compliance with good agricultural practices, which will benefit from lower interest rates. A producer whose property CAR has been validated, who has no environmental liabilities, and who does not need to recover any area, will have a reduction of 0.5– percentage points in the interest rate;
3. Incentive to practice sustainable production: 0.5-percentage point discount on interest for practices such as organic agriculture and pasture recovery;
4. Prohibition of access to Plan credit for environmentally embargoed properties, in any region of Brazil.

The effectiveness of the incentive instruments provided for by the Safra Plan is directly linked to the validation of the CAR by the competent environmental agencies.

In addition, another crucial point for the success of the measures provided for in the Plan is the level of involvement of financial institutions, which are in charge of approving credit for the Plan.

In this regard, the main financier is the BNDES. However, other private banks are involved and share their credit for operations involving (i) funding, (ii) investment, (iii) trade and industrialization and (iv) Rural Producer Certificates (CPR).

Changes to the Internal Regime of the National Environment Council (“CONAMA”)

On August 16, 2023, the 139th Ordinary Meeting of the National Council for the Environment (“CONAMA”) was held, which resulted in the decision to amend the internal regulations of the Council, as well as establishing changes in the registration process of environmental entities.

CONAMA had already been subject to changes in recent years. In May 2019, Federal Decree No. 9,806/2019 reduced the number of members on the Board from 96 to 23, with four seats being allocated to civil entities.

Subsequently, in 2021, the normative act was declared unconstitutional in the judgment of ADPF 623, based on the injury or threat of injury to a fundamental right, referring to civil society’s participation in the decision-making process of Brazilian environmental policies.

In February 2023, through Federal Decree No. 11,417/2023, the normative act of 2019 was replaced, and the Council now consists of 114 members.

In addition, new Technical Chambers were created, now consisting of five, dedicated to the following topics: (i) Biodiversity, Protected Areas, Forests, Environmental Education and Animal Welfare Chamber; (ii) Environmental Control and Territorial Management Chamber; (iii) Environmental Quality Chamber; (iv) Climate Justice Chamber; and (v) and Legal Affairs Chamber.

Two other important changes concern (i) the provision for elections to be held to choose representatives of civil society to assume the position of Conama members and (ii) determination that annual re-registration by organizations is not necessary.

Bill aimed at changing demarcation system of indigenous land is approved

Bill No. 490/2007 proposes that the demarcation of indigenous lands be restricted to those already occupied by these peoples on October 05, 1988, when the Federal Constitution was enacted.

The Bill was approved by the Brazilian House of Representatives on May 30, 2023, by 283 votes in favor and 155 against, with one abstention. In June, the Bill advanced to the Senate, where it began to be processed as Bill No. 2,903/2023 and was approved on September 27, 2023, with 43 votes in favor and 21 against. The text now goes to the President of the Republic for sanction or veto.

The Bill provides for:

1. October 05, 1988, as the “time limit” (marco temporal) for ascertaining whether the land under review is indigenous or not;
2. Possibility of the Government repossessing the indigenous land, or allocating it to the National Agrarian Reform Program, if there is “an alteration of the cultural traits of the community or by other factors resulting from the course of time”;
3. Prohibition to expand indigenous land that has already been demarcated;
4. Permission for economic activities on indigenous lands, only by the community itself, with the possibility of cooperation and contracting of non-indigenous third parties;
5. The usufruct right of indigenous peoples not overriding the interests of the national defense and sovereignty policy. In other words, military intervention, energy exploration and the safeguarding of strategically important resources would be implemented regardless of prior consultation with the indigenous communities;
6. Permission for government authorities to implement, on indigenous lands, equipment, communication networks, roads and transport routes, in addition to necessary constructions to provide public services;
7. Vetoing the charging of fees for facilities implemented for public services on indigenous lands.

Before the approval of the Bill by the Senate, it should be noted that the Federal Supreme Court (“STF”) had assessed the matter and decided that the adoption of the date of promulgation of the Federal Constitution as a time limit for defining the Traditional occupation of land by indigenous people is unconstitutional.

Among the reasons for the rejection of the time frame by the STF is the understanding that when the Federal Constitution mentions lands traditionally occupied by indigenous people, it refers to the occupied areas and those that still have links with the ancestry and tradition of these peoples, so that even if they are not demarcated, they must be subject to constitutional protection.

As such, the argument was rejected, as long the indemnification is assured to non-indigenous occupants in good faith, including regarding bare land.

Some members of the Senate expressed concern regarding the approval of the time limit Bill in opposition to the STF’s understanding, while others argue that the Court’s understanding would not alter the Senate’s possibility and competence to legislate.

House of Representatives approves Bill to increase environmental fines to up to BRL 10 billion

In August 2023, the Finance and Taxation Committee of the Brazilian House of Representatives approved Bill No. 5067/16, which proposes an amendment to the Environmental Crimes Law, which:

• increases the maximum amount of the fine imposed in cases of environmental disaster (“emergency situation or state of public calamity decreed by the competent entity”) from BRL 50 million to BRL 10 billion;
• amends Article 73 of Law No. 9605; and
• establishes that the amount collected from fines due to environmental crimes must be allocated to the affected regions.

The original version of the proposal was prompted by the collapse of the Fundão dam in the city of Mariana (Minas Gerais state), in 2015.

The current maximum limit of BRL 50 million can be increased to up to BRL 10 billion, at the discretion of the competent environmental agency, proportionate to the degree of damage.

The opinion issued by the Finance and Taxation Committee of the House of Representatives states that the fine amounts must be allocated for a maximum period of five years, to:

1. the National Environmental Fund, when collected by federal environmental agencies;
2. the Naval Fund, when collected by the Navy;
3. state environmental funds, when collected by the state; and
4. municipal environmental funds, when collected by municipalities.

The goal was to align the proposal with with budgetary legislation.

The proposal will still be analyzed by the Constitution and Justice and Citizenship Committee and subsequently move forward to the Plenary for deliberation.

Office of the Attorney General (“AGU”) issues favorable opinion on oil exploration at the mouth of the amazon river

In May 2023, the Brazilian Institute for the Environment and Renewable Natural Resources (“IBAMA”) denied Petrobras’ request for a license to explore oil at the mouth of the Amazon River.

The area subject to the request corresponds to a block offered in a bidding round involving areas for oil and natural gas exploration and production in 2013, whose environmental licensing process began in 2014 with IBAMA.

In 2020, Petrobras acquired all the concession rights for the block, including the continuation of the environmental licensing process, which was rejected by IBAMA.

In view of the rejection, the Ministry of Mines and Energy (“MME”) submitted a letter to the AGU, questioning the possibility of IBAMA rejecting a request to issue an environmental license, on the grounds of (i) the absence of an Environmental Assessment of the Sedimentary Area (“AAAS”) and; (ii) the transience, precariousness or alleged expiration of the joint statement by the Ministries of Mines and Energy and the Environment, the document that defined the areas in which oil and natural gas exploration and production activities would be allowed, while they have not yet been submitted for AAAS.

At the request of the MME, the AGU analyzed the case of Interministerial Ordinance MME/MMA No. 198/2012 – which established the AAAS – and consolidated its position through Opinion No. 14/2023. In the document, the AGU points out that IBAMA requested that the AAAS be carried out within the context of the environmental licensing by establishing that, without the elements that would be obtained via AAAS, it would not be possible to assess the environmental viability of the project.

In the understanding of the AGU, it is not possible to infer from Interministerial Ordinance MME/MMA No. 198/2012 that the AAAS would be a condition for the authorization grant, nor for the environmental licensing. This is because, among other reasons, (i) the ordinance defines the AAAS as an instrument that subsidizes strategic planning and classifies areas with a view to granting exploratory blocks, justifying itself only prior to the bidding of the areas, and (ii) the Brazilian Supreme Court , in the judgment of ADPF 825 and 887, decided that the environmental viability of a project must be attested via licensing and not at the AAAS.

As for IBAMA’s questioning about the transience, precariousness or alleged expiration of the joint statement, the AGU states that this argument is unsubstantiated, as is evident in the Ordinance:

• although the AAAS is the rule and the joint statement is the exception, both have the same legal nature, and the latter can replace the AAAS;
• the joint statement will be valid for a maximum of five years, and must be reviewed and ratified for equal periods, only for areas that have not yet been granted, nor submitted for AAAS. After all, IBAMA has always considered it unnecessary to renew the joint statement for blocks that have been awarded.

Finally, the AGU, in addition to highlighting IBAMA’s actions as contradictory, due to requiring the AAAS ten years after the grant, concluded that (i) within the scope of environmental licensing, the AAAS is not required; (ii) the joint statement was correctly issued under the terms of MME/MMA Interministerial Ordinance No. 198/2012, and does not need to be reissued for blocks that were awarded during its term.

To avoid a legal dispute, the AGU referred the case to the Mediation and Conciliation Chamber in order to “seek a consensual resolution” between the MME and IBAMA in relation to other disagreements between the two bodies in this case.

IBAMA suspends wild boar hunting in Brazil

IBAMA has determined the temporary suspension of authorizations granted for wild boar population control in natural environments, involving active hunting, targeted feeding or waiting methods.

According to IBAMA, the decision was based on provisions of Decree 11,615/2023, which defines that authorizations must be granted by the Brazilian Army, thus preventively suspending wildlife management authorizations in the form of active hunting, feeding or waiting issued through the Integrated Wildlife Management System (“SIMAF”).

The Brazilian Rural Society (“SRB”) issued a statement against IBAMA’s decision, arguing that the presence of  wild boar, an exotic species, in Brazilian wildlife, not only causes environmental damage, but also generates economic impacts on the country’s agriculture. The SRB also emphasized the health risks that the wild boar represents to livestock farming.

In the document, the organization required the Ministry of Agriculture and Livestock (“MAPA”) and competent authorities to intervene and resolve the problem.

Federal Decree amends Regulation of the Green Grant Program

On August 16, 2023, Decree No. 11,635 was published, amending Decree No. 7,572/2011, which regulates the provisions of Law No. 12,512/2011 on the Environmental Conservation Support Program – Green Grant Program (Programa Bolsa Verde).

Among the innovations of the new normative act is the amendment to article 3, II, of Decree 7,572/2011. The new wording establishes that not only families living in extreme poverty can benefit from the program, but also families who carry out environmental conservation activities in the following areas:  (i) National Forests, Federal Extraction Reserves and Federal Sustainable Development Reserves; (ii) Forest Settlement Projects, Sustainable Development Projects or Agro-Extractive Settlement Projects established by the National Institute for Colonization and Agrarian Reform (INCRA); and (iii) other rural areas appointed by the Green Grant Program Management Committee, and established in an act by the Minister of the State for the Environment and Climate Change.

Similarly, article 6 has been amended so that, in order to join  the Green Grant Program, families do not need to be in extreme poverty, but rather in a low-income situation.

Finally, article 7 has been amended to increase the amount to be transferred quarterly to each family from BRL 300.00 to BRL 600.00.

Senate Environment Committee approves allocation of environmental fines for disaster prevention

On August 23, 2013, the Environment Committee of the Senate (“CMA”) approved Bill (“PL”) 920/2023, which determined the allocation to the National Fund for Public Disasters, Protection and Civil Defense (“FUNCAP”), of 5% of the amounts collected from: (i) payment of environmental compensation, resulting from environmental licensing lawsuits for significantly impactful projects; (ii) fines or infractions for environmental crimes; and (iii) judicial and extrajudicial agreements to repair socio-environmental damage.

In addition, the Bill establishes that the amounts collected in payment of fines for environmental infractions must be allocated to the National Environmental Fund, the Naval Fund, and state or municipal environmental funds.

As justification for the proposal, the rapporteur claimed that the aim is to provide states and municipalities with the necessary conditions to manage natural disasters.

New carbon credit proposal: compensation for traditional communities

On August 28, 2023, Bill No. 412/2022 – which seeks to regulate the Brazilian Emissions Reduction Market (MBRE), provided for by Law No. 12,187/2009, and to amend Laws No. 11,284/2006 and 13,493/2017 – underwent changes resulting from the opinion of the Senate’s Environment Committee. the Bill now provides for the right of indigenous peoples, quilombolas and extractive communities to participate in the generation and trade of carbon credits, through projects developed in their territories.

The project requires contractual clauses that guarantee compensation to these communities in the event of damage during the implementation and operation of the projects.

It should be noted that one of the conditions for implementing projects in traditional communities is the definition of a rule for “fair and equitable sharing” of the resources generated by the sale of carbon credits. Deposits must be made into a specific account, following rules to be established by a second regulation. There must also be support for sustainable activities and territorial management.

In addition to such provisions, the Bill proposes a program that incorporates one or more methodologies for monitoring, reporting and ensuring compliance of projects to reduce or eliminate greenhouse gas (GHG) emissions.

The Bill will now advance for a vote in the Plenary.

HFCs: enactment of the Kigali Amendment to the Montreal Protocol and potential impacts on companies

On August 25, 2023, Decree No. 11,666/23 was published in the Federal Official Gazette of Brazil, promulgating the text of the Kigali Amendment to the Montreal Protocol on ozone-depleting substances (ODS).

The Montreal Protocol is an international treaty that aims to protect the ozone layer by eliminating the production and consumption of substances responsible for its destruction (ODS). The agreement results from the Vienna Convention for the Protection of the Ozone Layer, to which Brazil is a signatory.

At the same time, the Kigali Amendment is an agreement to reduce the consumption of hydrofluorocarbons (HFCs), artificial fluorinated gases that actively contribute to the greenhouse effect and rapidly accumulate in the atmosphere. They have been used as substitutes for chlorofluorocarbons (CFCs) mainly in refrigeration appliances, flame retardants, aerosols and solvents.

The reduction in the use of these gases, through the referred Decree, will take place in stages until 2045. Thus, companies that use these gases in their production must comply with this decree, including with regard to registration in the Federal Technical Register of Potentially Polluting Activities and Users of Environmental Resources (CTF/APP).

Decree 11,666/23 is already in force and obliges Brazil to freeze its consumption of HFCs by 2024, and progressively reduce it from 2029 until 2045:

Resolution that restructures conditions for financing with resources from the National Fund on Climate Change Approved

On August 24, the National Monetary Council of Brazil approved CMN Resolution No. 5,095/2023, which restructures the conditions for financing with resources from the National Climate Change Fund (“FNMC”).

The FNMC was created by Law No. 12,114/2009 and is one of the instruments of the National Climate Change Policy. Its purpose is to ensure resources to support projects and finance undertakings aimed at mitigating and adapting to climate change.

The new Resolution came into force on September 01, 2023, and specifically addresses the remuneration of financial institutions financial charges to borrowers as remuneration to the fund, the repayment period and the risk of the operation carried out by the financial institution accredited by the BNDES, or by the BNDES itself.

Within this context, the bank spread on direct operations with the BNDES was reduced from 4.5% to 3.5%, while the spread on indirect operations with other authorized financial institutions was reduced from 3% to 2.5%.

In the case of sustainable development projects, green transport and mobility logistics, green industry, energy transition, green services and innovation, renewable energy and others, the rates of return on loans to the fund, which previously ranged between 0.1% and 3%, will now vary, depending on the purpose of the financing, between 6.15% and a maximum of 8%.

For projects in areas that involve native forests and water resources, the rates can be a minimum of 1%.

With the approval of the new Resolution, Resolution No. 4,267/2013 is repealed, and operations filed with BNDES under the FNMC resources until August 25, 2023 could, at the borrower’s discretion, be contracted under the financial conditions provided by the Resolution nº 4,267/13, up to the limit of the availability of budget resources for the 2023 financial year, excluding supplementary credits.

Encouragement of interaction of environmental agencies

Ordinance GM/MMA No. 646/23 was published within the scope of the Ministry of Environment and Climate Change, establishing a Permanent Sectoral Negotiating Board (“MSNP”), with the purpose to encourage interactions between the Ministry of Environment and Climate Change, Ibama, ICMBio and the Brazilian Forestry Service (“SFB”), as well as to properly address the agendas and demands presented by the parties, acting as a prior forum to the MSNP established under SGPRT/MGI Ordinance No. 3,634 of July 13, 2023.

The MSNP will be aimed at optimizing the working relationship between the government and civil servants, reaching an agreement on the topics discussed, improving institutional activities and the quality of services provided to the population, among others.

The MSNP will be established through two caucuses, the Government and the Trade Union Caucuses, each with its own previously defined composition.

The Chairman will be able to invite representatives from other units of the Ministry of Environment and Climate Change and its affiliates, as well as other public and private institutions and civil society, to take part in the meetings, ex officio or at the request of the caucuses, whenever the invitation is applicable.

CETESB publishes Communications regarding the burning of sugar cane

In August 2023, the Environmental Company of the State of São Paulo (“CETESB”) issued the Notices CETESB/AICP from No. 4 to 11 ordering the suspension of sugarcane burning in various municipalities.

The notices are based on Resolution No. 17/2023, issued by the State Department for the Environment, Infrastructure and Logistics (“SEMIL”), which sets out provisions for suspending the burning of sugarcane straw in order to protect and restore the population’s quality of life and health, whenever atmospheric conditions are precarious.

The Resolution determines the suspension of sugarcane straw burning from 6 a.m. to 8 p.m. from June 01 to November 30, 2023. According to the Resolution, the suspension at other times will be determined by region, according to the average relative humidity level.

The text also establishes that whenever the relative humidity level is below 20%, the burning of sugarcane straw will be suspended at any time of the day, and that any burning notices previously sent will no longer be valid until the average relative humidity level reaches 20% or more.

Finally, the Resolution points out that after November 30, whenever the relative humidity level is greater than or equal to 20% and lower than 30% for a period of 2 consecutive days, the burning of sugarcane straw will be suspended between 06:00 and 20:00. In this case, the burn notices already registered will be valid for burning between 00:00 and 06:00 and between 20:00 and 24:00, regardless of the time previously scheduled for burning.

Federal District establishes procedures for issuing Environmental Authorization for controlled burning

Normative Instruction No. 10/2023 was published by the Institute of the Environment and Water Resources of the Federal District (“IBRAM”), establishing the procedures for issuing Environmental Authorization for Controlled Burning.

According to the instruction, controlled burning is the use of fire as a production and management method in farming and forestry activities, in the creation of firebreaks, and for scientific and technological research, in areas with previously defined physical boundaries.

Controlled burning is allowed with the proper authorization in the following cases only: (i) in places whose particularities justify the use of fire in farming or forestry; (ii) in Conservation Units, in accordance with the respective management plan and with the prior approval of the Conservation Unit’s management agency, seeking the conservation management of native vegetation whose ecological characteristics are progressively associated with the occurrence of fire; and (iii) scientific research related to a research project duly approved by the competent agencies and carried out by a recognized research institution, with the prior approval of the competent environmental agency.

In order to apply for an environmental authorization, interested parties must submit an application to IBRAM, together with the documents and information required by law. Once the authorization is issued by the environmental agency, it will be valid for three years, which cannot be extended.

IBRAM may suspend or cancel the permit at any time, provided there is justification by the agency, in the following cases: (i) there is a risk to life, environmental damage or adverse weather conditions; (ii) if air quality reaches levels that are harmful to human health, as verified by appropriate equipment and methods that have been officially recognized as parameters; (iii) in the case that smoke from fires reaches minimum visibility levels, compromising and jeopardizing aeronautical, road and other transport operations; (iv) public interest; (v) non-compliance with current regulations; (vi) public and social security interests; (vii) non-compliance with the Forest Code and other environmental regulations and laws; and (viii) illegality or illegitimacy of the act.

State of Amazonas presents new guidelines for compensation of intervention in protected areas

The Amazonas Environmental Protection Institute (“IPAAM”) has published Ordinance No. 89/2023, which provides for the Compensation for Intervention or Suppression of Permanent Preservation Areas (“APP”), Restricted Use Areas (“AUR”) and Areas with Endangered or Migratory Flora and Fauna Species, for potentially polluting activities to be implemented, are in operation, or already implemented activities eligible for regularization, in cases where there is no alternative location, in cases of public utility and social interest.

For the AURs established in Federal Law 12,651/12 (Forest Code), the same criteria for determining and calculating APP Compensation will be applied.

Compensation for intervention in Areas with Endangered or Migratory Species, on the other hand, will depend on the adoption of compensatory measures that ensure the conservation of the species in the areas subject to vegetation suppression that have these characteristics.

The type of compensation to be carried out by the project representative will be defined by IPAAM during the preliminary license phase and is subject to the signing of an Environmental Compensation Commitment Agreement (“TCCA”).

Compensation for APP or AUR can be calculated by: (i) restoring an ecosystem to an undegraded condition by means of a specific Degraded Area Recovery Project (“PRAD”); or (ii) pecuniary compensation, which should correspond to the monetary value of the impact generated, according to the formula established in the legislation.

Compensation for Areas with Endangered or Migratory Species of Flora and Fauna, on the other hand, will be paid in cash and calculated on a species-by-species basis.

State of Amazonas assigns public geotechnology and remote environmental monitoring services to CMAAP

IPAAM Ordinance No. 92/2023 was published, recognizing the Center for Environmental Monitoring and Protected Areas (“CMAAP”) in the organizational structure of the Institute of Environmental Protection of Amazonas (“IPAAM”) as a strategic, managerial, and operational entity for remote environmental monitoring, linked to the Technical Board (“DT”).

CMAAP will be responsible for providing technical and operational support to IPAAM’s Technical Management to carry out remote inspections, monitoring and notices, through the use of geotechnologies and satellite images.

Among the activities under CMAAP’s responsibility are: (i) collecting, storing, systematizing and making available spatial data and information; (ii) remotely identifying Deforestation Alerts via vector data provided by the National Institute for Space Research (“INPE”) and the Brasil Mais Program, including checking the geometry of Deforestation Alert polygons; (iii) monitoring the operation and updates of indicator panels for deforestation and fire alerts, or, when necessary, creating new dashboards; (iv) managing IPAAM’s spatial database and; (v) drafting official letters, memos, invitations, summons, orders and other relevant institutional documents, advised administratively by IPAAM.

State of Goiás establishes new reverse logistics obligations

Through State Law No. 22,231/2023, which amended the State Policy on Solid Waste of Goiás (State Law No. 14,248/2022), the following reverse logistics obligations were added to manufacturers, importers and representatives of products classified as special: (i) disclosing the list of toxic components and the quantities that each product sold contains; and (ii) acting to mitigate the impacts generated by technological waste or fund and support institutions that collect, recycle or reuse this waste.

According to the State Policy, “special products” are: (i) pesticide residues and packaging; (ii) batteries, secondary batteries, automotive and industrial batteries or similar; (iii) fluorescent, mercury vapor, sodium vapor and mixed light lamps; (iv) medicine packaging and expired medicines; (v) tires; (vi) lubricating oils and similar; (vii) floppy disks, CD-ROMs and other computer equipment; (viii) radiographic films; (ix) cylinders for storing vehicular natural gas (GNV); and (x) others products listed by the State Secretariat for the Environment and Sustainable Development (“SEMAD”).

State of Maranhão exempts EIA/RIMA for environmental licensing of the ethanol production industry, extracted from starch and tuber crops

Through SEMA Ordinance No. 395/2023, the Secretariat for the Environment of the state of Maranhão determined that the environmental licensing of ethanol production industries extracted from starch and tuber crops will be carried out through a Simplified Environmental Report (“RAS”), and that the Environmental Impact Study (“EIA”) and the Environmental Impact Report (“RIMA”) will not be required.

This Ordinance applies to industries that produce ethanol from starch crops in a closed circuit (reusing water in the production process, which significantly reduces water consumption and generates minimum amounts of waste), in which no vinasse or its derivatives are discharged, resulting in the co-production of products such as Dry Distillers Grains with Solubles (“DDGS”), tradeable crude oil and energy cogeneration.

Mato Grosso do Sul suspends the granting of license or authorization for plant suppression in the restricted use area of the Pantanal Plain and the Pantanal Biome

On August 15, 2023, Decree No. 16,248/2023 was published, which suspended the granting of licenses or authorizations for the suppression of vegetation for alternative land use in the Pantanal Plain and Biome Restricted Use Area, thus suspending ongoing and potential new processes.

This suspension does not apply to activities or projects considered to be of public utility or social interest, and to the clearing of native and exotic pastures, which must be submitted to the Mato Grosso do Sul Environment Institute (“IMASUL”) through an Activity Report (CA).

This suspension will continue until a state law is enacted to regulate article 10 of Federal Law No. 12,651/2012, which establishes general regulations on the protection of vegetation, permanent preservation areas and legal reserve areas; forest exploitation; the supply of forestry raw materials; control of the origin of forest products; and the control and prevention of forest fires. In addition, the federal law provides for economic and financial instruments to achieve its goals.

State of Mato Grosso do Sul regulates procedures for clearing pastures in specific areas of the Pantanal

The Mato Grosso do Sul State Secretariat for the Environment, Development, Science, Technology, and Innovation (“SEMADESC”) has published Resolution No. 28/2023, regulating the procedures for clearing pastures in the Restricted Use Areas  of the Pantanal Floodplains in Mato Grosso do Sul.

The Resolution defines pasture clearing as the management of native and cultivated pastures to control invasive species.

To obtain authorization to clear these areas, the project representative must present SEMADESC with the Pasture Clearing Form, with self-declared data, and after approval by the agency, the environmental authorization will be issued.

SEMADESC may inspect and monitor the clearing activities at any time, and if any inconsistencies are found in the information and documents submitted, the entrepreneur may be held responsible in the different spheres of environmental liability, namely: administrative, civil, and criminal.

State of Pará publishes final rates for the transfer of green ICMS in 2024

Ordinance No. 1551/2023 was published by the State Secretariat for the Environment and Sustainability (“SEMAS”), which releases the final rates for the transfer of the Green ICMS (financial transfers resulting from the collection of tax on goods and services) to the municipalities of the State of Pará.

According to the Ordinance, the transfer of the Green ICMS to municipalities in 2024 will be established according to the weighing of important environmental aspects, as follows: (i) Rural Environmental Registry (“CAR”), with a weight of 13.17%; (ii) Legal Reserve Area (“ARL”), with a weight of 12.60%; (iii) Permanent Preservation Area (“APP”), with a weight of 13.74%; (iv) Anthropized Area (AA), with a weight of 13.27%; (v) Remnant Native Vegetation (“RVN”), with a weight of 14.24%; (vi) Restricted Use Areas (“UR”), with a weight of 12.39%; (vii) Sustainable Use Areas (“US”), with a weight of 13.69%; and (viii) CAR Analysis in the Municipality (“ACar”), with a weight of 6.91%.

The detailed methodology for calculating the rates for the transfer of Green ICMS will be made available on the official SEMAS website.

State of Paraíba establishes rules for registration in the State Technical Registry

The Superintendence of Environmental Administration of Paraíba (“SUDEMA”) published Normative Instruction No. 01, which establishes the rules for registration with the State Technical Registry of Potentially Polluting Activities and Users of Environmental Resources (“CTE”) and collection of the Paraíba State Environmental Control and Inspection Fee (“TCFA/PB”).

Individuals and legal entities that carry out potentially polluting activities or extract, produce, transport and sell products that are potentially dangerous to the environment, as well as products and by-products of fauna and flora, are eligible for registration with the CTE.

According to the regulation, individuals and legal entities obliged to register and update their data with the CTE will do so through the Federal Technical Registry of Potentially Polluting Activities and Users of Environmental Resources (“CTF/APP”).

The TCFA/PB fee will be applied per establishment and will be equivalent to 60% of the amounts defined in Federal Law No. 6.938/81 (National Environmental Policy).

The TCFA/PB and the Federal TCFA will be collected through the Single Federal Tax Collection Form.

In addition, the business owner who must pay the TCFA/PB fee will be obliged to submit a report on the activities carried out in the previous year by March 31 of each year. This report must be submitted together with the Annual Report on Activities that Potentially Pollute and Use Environmental Resources (“RAPP”) of IBAMA.

State of Paraná regulates procedures for analyzing and validating Rural Environmental Registrations (CAR)

On July 27, 2023, Normative Instruction No. 05/2023 was published by the Paraná Water and Land Institute (“IAT”), which provides for the criteria and administrative procedures regarding the individualized analysis and validation of property registrations located in the state that are inserted in Brazil’s National Rural Environmental Registry System (“SICAR”).

The rural owner or landholder who registers rural property with the Rural Environmental Registry (“CAR”), after the registration receipt has been issued, must also be registered with  SICAR’s Owner/Landholder Central.  Once the registration has been carried out at the Central, the IAT, as established in the Normative Instruction, will proceed to analyze the data declared in the CAR.

If there are any inconsistencies or pending information identified in the declaration submitted to the CAR, the IAT will notify the applicant to submit additional information or to rectify and adjust the information.

Communications and requests for additional documents and clarifications will be sent to the owner or landholder through SICAR’s Owner/Landholder Central, by electronic notification, which will, as a rule, have a deadline of 90 days for compliance.

In addition, if any environmental liabilities are identified after the analysis of the registration, in the areas of Legal Reserve, Permanent Preservation Areas, unconsolidated anthropized use and/or signs of soil degradation, the owner or landholder must regularize the situation, in accordance with the procedures defined in the Environmental Regularization Program (“PRA”).

State of Pernambuco fosters the use of biomass for energy generation

State Law No. 18,273/2023 established the State Policy for the Incentive of the Use of Biomass in Energy Generation. The Policy aims to foster the diversification of the energy matrix, , encouraging the sustainable use of natural resources and contributing to economic and social development using biomass.

One of the Policy’s specific goals is the incentive to use agro-industrial and agricultural waste for energy generation. To this end, the following are among some of the instruments to implement the Policy : (i) the creation of fostering and financing programs for renewable energy projects based on biomass; (ii) the encouragement of partnerships, agreements and other similar instruments with public or private bodies and entities; and (iii) the implementation of fiscal and tax incentives for energy generation from biomass.

State of Piauí introduces new procedures for implementing precautionary measures relating to Rural Environmental Registry and embargoed areas

On August 07, 2023, the Secretariat of Environment and Water Resources of the State of Piauí (“SEMARH”) published Normative Instruction No. 11/2023, which establishes the procedures for the immediate implementation of emergency administrative precautionary measures of embargo and suspension of the Rural Environmental Registry (“CAR”), regarding cases of illegal deforestation and forest exploitation,  identified by SEMARH’s remote sensors.

According to the Normative Instruction, whenever any unauthorized deforestation is found based on public data from deforestation monitoring and remote detection systems and the cross-referencing of this information with satellite images and spatial reference bases: (i) an infraction notice will be issued to the owner of the area; (ii) the respective CAR will be suspended; and (iii) embargoed areas will be included as a precautionary measure for later inspection by SEMARH agents.

Based on the measures taken by SEMARH, administrative proceedings will be initiated, at which point the owner will be able to contest the notice.

State of Piauí publishes amendments on the list of activities not subject to public authorization within the scope of the state

Decree No. 22,300/2023 was published, which establishes the list of low-risk A and/or risk level I economic activities that are not subject to public authorization within the scope of the State of Piauí.

The Decree establishes that the activities listed can only be considered low risk A and/or risk level I if these activities do not involve intervention in legally protected areas of significant environmental interest.

It also clarifies that the exemption from licensing does not authorize the cutting, exploitation or suppression of native vegetation, nor does it exempt the business owner from obtaining a water resource authorization grant.

Finally, the Decree contains an annex that lists the economic activities considered as low-risk A and/or risk level I, which do not require public authorization in the state of Piauí.

State of Rio Grande do Sul establishes municipal authority for environmental licensing of local impact projects

CONSEMA Resolution No. 492/2023 was published by the State Council for the Environment (“CONSEMA”), establishing the amendment of Resolution No. 372/2018, which provides for projects and activities subject to environmental licensing in the state of Rio Grande do Sul.

In summary, projects and activities with a local impact were highlighted for the exercise of municipal authority in environmental licensing.

State of São Paulo establishes procedures for renewing operating licenses for gas stations

The Environmental Company of the State of São Paulo (“CETESB”) published Board Decision No. 66/2023, which provides for the procedures required to renew the operating license (“LO”) of gas stations.

The Decision determines eligibility for renewal by the gas stations that (i) received the LO before opening for business and (ii) received the LO after undergoing complete renovation and since then no contaminated area has been found or that the management of the contaminated area is in the “Monitoring for Closing” phase or is considered a “Rehabilitated Area for Declared Use”.

Subsequently, the Decision introduces a list of documents that must be submitted to CETESB for license renewal, including: (i) a Declaration Statement, through which those responsible for the project undertake to comply with the established technical requirements, during the validity period of the LO and (ii) the results of leak tests on the project’s lines and tanks.

Once the required documentation has been received, the license must be issued within 10 days, and its validity period will begin immediately after the end of the validity of the license to which the renewal has been requested.

Finally, the Decision indicates the technical requirements that will follow the license, such as: (i) criteria for fuel discharges, storage tanks, pipes, filtration systems, floors, lubricating oil storage; (ii) the need for leak testing and; (iii) periodic maintenance of the electronic monitoring system for tanks, pump sumps and filters.