Coordinator and Author

Chapter Author: The Impacts of the Declaration of Economic Freedom Rights on the Environmental Licensing of Projects in the Electric Sector

Book Description:

"This work, coordinated by professors Alexandre Oheb Sion and Lucyléa Gonçalves França, offers an excellent opportunity to learn more about Environmental Law in the electric sector from various perspectives.

Indeed, not only are the texts diverse and comprehensive, but their authors come from different backgrounds, including academia, legal practice (both private and public), engineering, geography, and the Public Ministry. Some authors are prominent in the electric sector, while others work in public environmental agencies, providing insights from within the state apparatus and its legal advisory.

The texts are current and thought-provoking.

The opening topic is the Declaration of Economic Freedom Rights. Law No. 13.874/19 has raised environmental questions with evident impacts on the electric sector, which must be addressed in any updated work on Environmental Law. Issues such as equal treatment by public administration in authorizing economic activities, tacit approval in the absence of response from the competent authority, and the non-requirement of certifications not explicitly mandated by law are crucial for those dealing with Environmental Law, especially given the prohibition of environmental licenses or acts depending on them due to elapsed deadlines (Complementary Law 140/11, art. 14, § 3) and the requirement of municipal certification of compliance with applicable land use and zoning laws in sub-legal regulations (Conama Resolution 237/97, art. 10, § 1).

The validity of consent for the suppression of Atlantic Forest vegetation, particularly by Ibama for suppression conducted in state-level environmental licensing, has been questioned by the provision in Complementary Law 140/11 of the uniqueness of environmental licensing, previously only in Conama Resolution 237/97, and its role in distributing administrative competencies in respect to explicit constitutional commands. The authors' challenges on the scope of articles 11 and 19 of Complementary Law 140, which are usually used to support Ibama's consent as stipulated in the Atlantic Forest Law (Law No. 11.428/06), are intriguing.

The core of the third text in this work is the analysis of legal and practical issues related to the delegation of environmental licensing. As a topic rarely addressed by doctrine and generally by environmental agency regulations, recently regulated by Ibama's Normative Instruction No. 08/19, addressing various aspects of this type of delegation brings significant legal security to public entities and, ultimately, to those governed.

The right to the city and the sharing of infrastructure between the electric energy and telecommunications sectors bring important considerations related to Aneel and Anatel Joint Resolution No. 04/2014.

The alternative method of dispute resolution commonly found in infrastructure, construction, and long-term contracts, the dispute board, is presented as a solution to bring security and effectiveness to licensing in the electric sector in the fifth text of this book.

The self-composition of environmental energy conflicts within the Public Ministry demonstrates the role of the Parquet in achieving swift, secure, and effective solutions through negotiation.

The seventh article aims to address the correct interpretation of Conama Resolution No. 462/2014 regarding the necessity or not of concurrent environmental licensing for wind farms and their associated systems. This important topic requires a reasonable and systematic interpretation with regulatory legislation, considering the complex dynamics involving the electric sector.

In the chapter on the conversion of Ibama fines, key aspects are highlighted, such as the occurrence or not of recidivism and the non-exclusion of civil and criminal liability.

In the chapter on the applicability of environmental law in the electric sector, the right to sustainable development receives special attention in the context of electricity production.

In new considerations on the regulation of the Brazilian electric sector, the author analyzes the evolution of regulation, offering specific critiques.

In observations on the legal regime of transmission lines in conservation units, the authors make central provocations about the topic, considering alternatives (locational and technical) to avoid apparent protections. For instance, a transmission line surrounding a conservation unit and thereby affecting the buffer zone may result in a much larger impact area than if the transmission system crossed the conservation unit. The impact should be viewed holistically rather than merely focusing on the inviolability of territorial limits. The technical alternative must consider both installation and operational control for maintenance purposes. Environmental viability should be analyzed on a case-by-case basis, as our Constitution only prohibits uses that compromise the integrity of the attributes justifying their protection (art. 225, § 1, III), not uses that do not compromise those attributes. The interpretation of article 46 of the Snuc Law and its application by ICMBio also deserve attention.

In the chapter on the applicability of the rural environmental registry (CAR) to properties intended for electric sector projects, a fundamental question under review by the legal consultancy of the Ministry of Agriculture is explored: is it possible and consequently required for CAR to be applied to energy concessionaires who only hold an easement on part of the property?

In the chapter on strategic environmental assessment (SEA) in renewable energies, it is argued that although not mandatory or foreseen in our legal framework, its requirement would bring benefits to environmental impact analyses.

The topic of the economic-financial imbalance of electric transmission concession contracts due to delays in environmental licensing is currently in vogue, not only because of the sums involved in litigation but because it presupposes determining who caused the delay in environmental licensing and for how long a delay is acceptable without economic-financial rebalancing, a right guaranteed by the Federal Constitution.

The final but equally important chapter addresses the legal requirements of simplified environmental licensing for transmission lines at the federal level and the concept of impact as outlined in articles 5 and 19 of MMA Ordinance 421/2011.

Addressing various environmental issues related to the electric sector, this work is essential for those who wish to delve deeper into the environmental issues related to this sector."