On the last day of February of this year, the federal supreme court (STF) has concluded the joint judgment of five legal claims – one claim for declaration of constitutionality (ADC 42) and four claims for direct unconstitutionality (ADI 4901,4902,4903 and 4937) – related to the “new” forestry code (federal law nº 12.651/2012), ending a 6-year period of uncertainty.
STF has deemed two legal provisions unconstitutional and interpreted other five accordingly – making them compatible with the constitutional text. The most disputed provision of the norm, article 60, was voted legal and, because of that, the suspension of punishability of crimes predicted on the articles 38,39 and 40 of the Law of Environmental Crimes is valid – considering that those crimes were committed before July 22 of 2008 and the responsible compromises with the regularization of the illegally deforested areas.
Although the farming and livestock sectors were the most interested in the conclusion of the judgment, many other segments of the economy, such as the energy generation sector, were also expecting the final word of the supreme about the forest code - and thus also have reasons to celebrate the extremely positive results. However, despite the satisfactory conclusion, the energy sector must stay alert for some modifications promoted by the judgement.
The first one refers to one of the provisions which received a new interpretation: article 3º, VIII, which refers to the activities considered of public utility – as it is the case for energy generation. From now on, for an activity of public utility to realize an intervention or suppression of native vegetation in an Area of Permanent Preservation (APP), it must prove the inexistence of technical or locational alternative.
Therefore, while before the implementation of any business considered of public utility used to justify the deforesting of APPs in principle, now this is only possible with the definitive proof that the place is the only place where the installation of the activity is possible.
Moreover, the sector must keep in mind that the prescription for environmental crimes committed until July 22 of 2008 will be interrupted while the Program of Environmental Regularization (PER) is being followed. In practice, these crimes will not prescribe during the regulatory period, but if the responsible does not follow the PER, it can be responsible for it afterwards.
Another relevant data: some provisions which brought great expectations to the sector were kept, such as the already cited article 60 and the § 7° of article 12 – the latter, if considered unconstitutional, could implicate in exigences of legal reserves to areas in which there are business related to hydraulic energy generation.
Even so, if though there was no exigence of legal reserves to areas acquired to generate hydraulic energy, the energetic sector must keep notice that the need of compensation of legal reserve, predicted on the § 2° of article 48 of the Forestry Code, must be realized no longer under the same biome, as the text used to predict, but now only under the same ecosystem, as the Supreme Court determined. That is because the § 7° of the article 12 refers to hydraulic energy, not mentioning, for example, the generation of solar or wind energy – two booming branches in Brazil.
Thus, the areas destined to wind farms and/or solar boards which demand deforesting to their installation may deforest a preserved area – if they attest for the inexistence of alternatives, technical or localization wise – but they may not be excused from observing the legal reserve. And, in this case, if there’s a need of compensation for this legal reserve, it shall be located in an area of the same ecosystem in which the quota of the environmental reserve (CRA) is tied to.
Evidently, this interpretation also could - better yet, should – be the subject of judiciary questioning, considering that the generation of hydraulic energy is not obliged to have a legal reserve, there’s no apparent reason for this regime not to be extended to other, equally sustainable, methods of energy generation.
Regardless, with the juridical safety that this STF decision brings, it is expected that many provisions of the law shall be, at last, implemented. It is the case of the PER, which must be regimented by the states, which, in its turns, were waiting for the approval of the Supreme Court to act. With the PER, finally, many deforested areas may be recuperated – even if this recuperation means, to some, amnesty of some crimes, the major goal of the environmental norm will be attained.
Lawyer specialized in Environmental and Mineral Law at Queiroz Cavalcanti Advocacia
Federal counselor of OAB in Paraiba and President of the OAB National Committee of Environmental Law