2 de March de 2018

Superior Federal Court defines the fate of the New Forest Code

Por Comunicação

STC decision brings few reasons to celebrate regarding the constitutional guarantee to the environment well preserved and ecologically balanced.

After six years of uncertainty, the Superior Federal Court (STC) decided on Wednesday (28/02) for the constitutionality of most of the points questioned in four Direct Actions of Unconstitutionality (DAU) to the New Forest Code (Law 12.651 / 2012) . In a fierce vote, Minister Celso de Mello was given a tie vote, which in terms of biodiversity conservation made very little progress and left some uncertainties.

Among the 58 questions raised, the major discussion concerned the possibility of fine amnesty and other obligations to rural landowners who illegally cleared natural areas before July 22, 2008 – the legal framework date to separate consolidated deforestation from new ones. The decision, received with dismay by environmentalists, finally grants the amnesty conditional on joining the Environmental Regularization Program (ERP). This commitment establishes the rules of restoration, within a period of 20 years, thus guaranteeing the suspension of legal measures to violators.

According to Minister Carmen Lúcia (who was accompanied by ministers Alexandre de Moraes, Gilmar Mendes, Rosa Weber and Dias Tóffoli), the adhesion to ERP “is stimulating the recovery of degraded areas”. However, it is important to emphasize that restoration, as provided by law, disregards the ecological aspects and biological characteristics of degraded areas, allowing up to 50% of exotic species to be planted in the process.

The introduction of invasive alien species into natural environments is considered the second largest cause of biodiversity loss in the world, behind deforestation alone. These species, such as pinus, for example, spread rapidly, contaminating biologically the ecosystems.

In addition, as Minister Edson Facchin, speaking with his ministers Luiz Fux, Marco Aurélio Mello, Luís Roberto Barroso and Ricardo Lewandowski, reminds them that it is incumbent upon the public power to preserve the diversity and integrity of Brazilian genetic heritage, Federal Constitution in article 225, paragraph 1, item II.

Unfortunately following the decision, Minister Dias Toffoli said that this amnesty conditioned to the ERP represents “an incentive program”, because “if he (the owner) does not recover, he will be held accountable.” However, instead of encouraging landowners to maintain natural areas on their property, the legal measure extends the frustration of those who have preserved their land and brings the sense of impunity to violations and acts harmful to the environment.

On the other hand, one point in the FTS decision that allows us to celebrate is the definition that the protection of springs (which do not spill water permanently) and intermittent water eyes must follow the interpretation according to the Constitution. Maintained as well as Areas of Permanent Preservation (APP) have ensured the duty to have vegetation in their environment.

In terms of conservation, precisely because they allow the formation of water courses, the springs and the water eyes contribute to the water security of several communities. The suppression of surrounding vegetation would facilitate erosion processes, for example, which contribute to the disappearance of these formations, and in the medium to long term may represent risks to the supply of some basins.

Another point that still divides opinions concerns the rules for compensation of Legal Reserve. The decision of the STC allows rural landowners to make the necessary compensation via Environmental Reserve Quota in another area of ​​the same ecological equivalence and no longer simply within the same biome. This regulation also depends on state norms of competence, which may or may not take into account the biotic and abiotic characteristics of the suppressed areas. Although there is still no certainty, if well supported, the measure can contribute to the conservation of the landscape more effectively.

Faced with this scenario, in which it would be incumbent upon the Government to “preserve the diversity and integrity of the country’s genetic heritage” (article 225, §1, II, CF) it is disappointing that apparently the protection of the private interest of a minority is above the constitutional guarantee of the population in which “everyone has the right to a balanced environment” (article 225, CF). It is hoped, however, that in the face of the evidence of the need for well-preserved environments for quality of life, society values ​​biodiversity conservation even without full legal defense of its rights.