Environmental licensing is the procedure by which the competent body licenses the location, installation, expansion or operation of activities that may, in any way, cause environmental damage.
The purpose of environmental licensing is to issue an administrative act called environmental license, through which the competent body establishes the conditions, restrictions and control measures that must be obeyed by the performer of the activity.
Environmental licensing is one of the main instruments of the National Environmental Policy (Law No. 6.938/81) and is a direct consequence of article 225, paragraph 1, V of the Federal Constitution:
Art. 225. Everyone has the right to an ecologically balanced environment, a good for common use by the people and essential to the healthy quality of life, imposing on the Public Power and on the community the duty to defend and preserve it for present and future generations.
§ 1 To ensure the effectiveness of this right, it is incumbent upon the Public Authorities:
V - control the production, sale and use of techniques, methods and substances that pose a risk to life, quality of life and the environment;
Environmental licensing is one of the manifestations of the so-called environmental police power, which consists of the activity of the State that limits and regulates individual rights in favor of the public interest related to environmental issues.
Which cases require environmental licensing?
According to article 1 of Resolution No. 187 of the National Council for the Environment - CONAMA, any activity considered potentially polluting or causing environmental degradation in any way, requires licensing environmental.
Types of environmental license
Environmental licenses are granted based on the intended activity and the stage in which the enterprise is. The different types of environmental license provided for in CONAMA Resolution No. 187 are:
Previous License (LP): granted in the preliminary planning phase of the enterprise or activity approving its location and design, attesting environmental feasibility and establishing the basic requirements and conditions to be met in the next phases of the Implementation.
Installation License (LI): authorizes the installation of the enterprise or activity in accordance with the specifications contained in the approved plans, programs and projects, including environmental control measures and other conditions.
Operating License (LO): authorizes the operation of the activity or enterprise, after verifying the effective compliance with contained in the previous licenses, with the environmental control measures and conditions determined for the operation.
CONAMA Resolution No. 350 provides for yet another type of license:
Seismic Survey License (LPS): Authorizes seismic surveys at sea and in transition zones, establishing all the conditions to be observed by the performer of the activity.
Environmental licenses can be granted separately or successively. Thus, it is common for the same enterprise to accumulate more than one type of license during its activity.
Depending on the characteristics and peculiarities of the activity, CONAMA may define specific environmental licenses, in addition to adapting the stages of the environmental licensing process.
Who processes the environmental licensing?
The competence to process the environmental licensing is determined by the discretion of the extent of environmental impact.
| Federal Competence (IBAMA) | When the environmental impact is of a regional or national nature, that is, it exceeds the limits of a state or even covers the entire Brazilian territory. |
|---|---|
| State competence | When the environmental impact affects more than one municipality within the same state. |
| Municipal competence | When the environmental impact is limited to the area of a municipality. |
Each federative entity has its own body responsible for the environmental licensing process, generally called environmental institutes, superintendencies or secretariats.
Depending on the specific needs of the cases, other bodies may intervene in the licensing to establish conditions or issue opinions. Some examples of these bodies are:
- FUNAI – National Indian Foundation
- INCRA – National Institute of Colonization and Agrarian Reform
- ICMBio - Chico Mendes Institute for Biodiversity Preservation
- DNPM – National Department of Mineral Production
- IPHAN – National Historical and Artistic Heritage Institute
- MS – Ministry of Health
Stages of environmental licensing
The environmental licensing process follows the following steps:
- Definition by the competent environmental agency of documents, projects and environmental studies necessary to start the process;
- Application for the environmental license by the entrepreneur, accompanied by relevant documents, projects and environmental studies;
- Analysis by the competent environmental agency of the documents, projects and environmental studies presented;
- Request for clarifications and complements by the competent environmental agency;
- Public hearing, when applicable;
- Request for clarifications and complements by the competent environmental agency, arising from public hearings;
- Issuance of conclusive technical opinion and, when applicable, legal opinion;
- Approval or rejection of the license application, with due publicity.
The procedure can be simplified in cases of activities with a small potential for environmental impact.
Legislation related to environmental licensing
The Brazilian legislation related to the environment is distributed in several laws and resolutions, among the main legal diplomas of national scope are:
- Federal Constitution of 1988.
- Law No. 6.938/81 – National Environmental Policy.
- Complementary Law No. 140/11 – Rules of competence to process environmental licensing.
- Law No. 12,651/12 – Forest Code.
- Resolution No. 237/97 – establishes which activities require environmental licensing, among other general rules.
- Resolution No. 001/86 – establishes which activities must present an Environmental Impact Study and an Environmental Impact Report (EIA/RIMA) in the licensing.
- Resolution No. 009/87 – establishes the cases in which a public hearing on the environmental licensing must be held.
- Resolution No. 006/86 – establishes the ways to publicize the environmental licensing.
See too:
- IBAMA
- Environmental impact
- environment pollution