On the last 10th, the Supreme Federal Court revived the thesis of usurpation of the Union's legislative competence in environmental matters and the obligation to obtain prior (LP), installation (LI), and operation (LO) environmental licenses by determining the suspension of the decision on provisional authorization for environmental licensing in Amapá. Minister Luiz Fux, in a non-exhaustive analysis of the request for Suspension of Security No. 5,469/AP, monocratically granted the precautionary measure requested by the Attorney General of the Republic, “against the decision of the Court of Justice of the State of Amapá — TJ-AP, issued in the records of Mandado de Segurança 000190-70.2021.8.03.0000, which granted an injunction to the State Secretariat of Environment to issue a provisional authorization for those interested in processes aimed at issuing an environmental license and dependent only on proof of possession to carry out the planting of the grain crop.”
In the decision, the minister determined the precautionary suspension of the granted security, arguing that the requirements for the precautionary protection were present. The fumus boni iuris would be represented by the Union's competence to issue general norms on the environment and, consequently, by the supposed indispensability of obtaining the LP, LI, and LO, successively, as understood by the STF in Direct Action of Unconstitutionality (ADI) No. 5,475/AP. The requirement of periculum in mora would be configured due to the possibility of “causing damage in the exercise of an activity possibly causing environmental impacts without proper licensing,” based on the principles of prevention and precaution, which, in itself, would represent a risk to the useful result of the process.
Well, initially, despite the perfunctory analysis conducted monocratically, the grounds raised in the decision express the tendency to maintain the understanding with a view to suspending the granted security, based on the judgment formed in ADI No. 5,475/AP, on which occasion the STF, contrary to the understanding previously expressed in ADI No. 4,615/CE, judged the formal unconstitutionality of item IV and paragraph 7 of article 12 of Complementary Law No. 5/1994 of Amapá, amended by Complementary State Law No. 70/2012, based on the argument that the general norms issued by the Union would be disrespected in the case of the provision of the single environmental license (LAU) by the State. As if that were not enough, the material unconstitutionality was declared on the grounds that the LAU, a case of a simplified license, would constitute a less efficient instrument for environmental protection, with an alleged violation of article 225 of the Constitution of the Federative Republic of Brazil of 1988 (CRFB/1988).
It is worth remembering that the unconstitutionality of the LAU and the consequent requirement of the three licenses in the cited ADI is based on the usurpation of competence of the state of Amapá in enacting a complementary law that supposedly contradicts the resolution of the National Environment Council (Conama) No. 237/1997 concerning the obligation of the three-phase environmental licensing system. The decision is also based on the principles of precaution and prevention, arguing that the three-phase licensing system would guarantee greater protection of the environment as a legally protected good.
Data maxima venia, the grounds of the decision issued, to the same extent as ADI No. 5,475/AP, do not seem adequate to us. In effect, the very Conama Resolution No. 237/1997, used as the basis for the supposed unconstitutionality of the Amapá law, already defines the possibility for environmental agencies to establish “(…) simplified procedures for activities and enterprises with low potential environmental impact (…)” (article 12, paragraph 1).
Two aspects very dear to our discussion must be considered here: firstly, under the terms of article 24 of the CRFB/1988, in the absence of a general law regulating environmental licensing, it is up to the states to legislate fully. From the perspective of the hierarchy of norms, the prevalence of a resolution, an infra-legal norm, over a complementary law dealing with the same subject cannot be admitted. In this same line, the declaration of unconstitutionality cannot be observed in the face of an infra-legal norm of Conama, because, despite being provided for by Federal Law No. 6,938/1981, it is not confused with the law. Thus, a state law cannot be declared unconstitutional based on a violation of a resolution. It is axiomatic that the provision of a general environmental licensing law becomes increasingly pressing; however, during the limbo existing between PL No. 3,729/2004 and its effective conversion into law, the States cannot be prevented from legislating, under penalty of affront to article 24 of the CRFB/1988.
Another noteworthy point concerns the dispensability of the three-phase environmental licensing system. Propaedeutically, the Complementary Law of Amapá No. 5/1994, whose unconstitutionality discussions stem from as an initial kick-off, established a set of environmental licenses beyond the three traditionally provided for in the mentioned Conama resolution, certainly not avoiding the requirement for environmental licensing.
Furthermore, there is a belief that the three-phase model serves greater environmental protection, as if protection were restricted to the successive evaluation of licenses and not to the content of the licenses themselves. It is fundamental, to meet constitutional and normative commands, that enterprises that cause, even potentially, environmental damage and/or use natural resources are preceded by regular environmental licensing (article 2, I, of Complementary Law No. 140/2011 in conjunction with article 10 of Federal Law No. 6,938/1981). What really matters is that licenses are issued after adequate administrative evaluation, conducted by the competent environmental agency, which necessarily involves the evaluation of the positive and negative impacts of the enterprise that is intended to be implemented and operated.
To meet such commands, it is not necessary for the environmental agency to require three successive licenses if their content is included in two or even just one. In other words, why would the simultaneous issuance of the LP and LI, or of the LP, LI, and LO, be theoretically less advantageous to the environment?
Certainly, as Bessa Antunes argues, “environmental protection is conferred by the entrepreneur's actions within the limits established by the license and not by the path used for its granting.”
The rumors that the three-phase licensing model provides greater environmental protection consist, thus, in the words of environmental agencies, in a clear fallacy, even from the point of view of the efficiency of the licensing process analysis by the environmental agency, to the extent that the simultaneity of licenses, verbi gratia LP and LI, guarantees the analyst a broader view of the planning of a given enterprise and what will actually be implemented. This joint provision, encompassing the diagnosis of the environmental and locational feasibility of the enterprise and the impacts derived from future implementation, together with control, mitigation, and compensation measures for the enterprise in the same process, is fundamental for a precise analysis of the activity to be developed.
In truth, the three-phase system, created 24 years ago by Conama Resolution No. 237/1997, proves to be anachronistic, with states adapting their legislation to regional particularities, citing Minas Gerais and Santa Catarina as examples, which certainly represents the authentic exercise of constitutional autonomy concerning their self-organization.
For each type of enterprise and magnitude of impact, the environmental agency, based on the legislation of the federative entity to which it is linked, should have the prerogative to define the most appropriate type of licensing. As jurists, we need to have the humility to recognize that it is essentially a technical (and not legal) analysis that underpins administrative merit.
Regarding this perspective, PL No. 3,729/2004, when regulating item IV of paragraph 1 of article 225 of the CRFB/1988, absorbs and brings together the models of environmental licenses already provided for in environmental norms of various federative entities, aiming to create a general standard capable of meeting the peculiarities of the different regions of the country and adapting to the reality of what is actually practiced by the federative entities.
Thus, with my utmost respect, I believe that the STF misses the opportunity to resume the understanding expressed in ADI No. 4,615/CE, decisively influencing the discussion on valid types of environmental licenses and the waiver of the three-phase system for all cases. Again, with my profound deference, I think that, in its role as the spokesperson for the law and guarantor of legal security and stability, it should prioritize decisions that do not generate instability and impose a herculean task on jurists to orient themselves amidst the profusion of conflicting decisions.