Conservation news

Brazil high court Forest Code ruling largely bad for environment, Amazon: NGOs

  • In a tight decision, the Brazilian Supreme Court (STF) upheld the constitutionality of much of Brazil’s 2012 New Forest Code, that had been created under the powerful influence of the bancada ruralista agribusiness lobby. The upheld 2012 New Forest Code is a weaker body of environmental regulations than the 1965 code created under Brazil’s military government.
  • The court ruling made constitutional a declared amnesty for those who illegally cleared their Legal Reserves (lands, by law, they must not clear) before 22 July 2008, eliminating required fines and tree replantings. It allows for the reduction of Legal Reserves in states or municipalities largely occupied by indigenous reserves or protected areas.
  • The STF decision also allows for the reduction in size of APAs (Areas of Permanent Protection), even when considered fundamental by environmentalists for maintaining water supplies and preventing climate disasters such as floods and mudslides.
  • The ruling allows farmers who have already illegally cleared protected APAs, to get authorization to clear even more land, and approves farming activities on steep slopes and hilltops. Environmentalists were critical of the high court decision, while agribusiness praised it.
The Amazon rainforest canopy. Photo by Rhett A. Butler / Mongabay

In what many consider Brazil’s most important ruling ever about the environment, the Supreme Court on Thursday rejected, by a tight vote of 6 to 5, some of the most important charges of “unconstitutionality” brought against the New Forest Code (12.651/2012).

The resulting decision revokes the more environmentally friendly Forest Code passed in 1965 under the military government then in power in Brazil, and maintains much of the New Forest Code, passed in 2012 by a Congress under the powerful influence of the bancada ruralista, Brazil’s agribusiness lobby.

The voting by the eleven ministers in the Supreme Court was staggered over several weeks. Until the eleventh minister, Celso de Mello, cast his votes yesterday, voting on some of the most important of the 23 accusations of unconstitutionality made against the New Forest Code was tied, with five votes for and five against.

In the end, 18 of the 23 charges of unconstitutionality were rejected.

Some important issues were decided by a comfortable majority before yesterday’s vote, and some decisions favorable to the environment were made. But on key issues where voting was tied as of Thursday, Celso de Mello sided with those Supreme Court justices endorsing the constitutionality of the New Forest Code.

As a result of this final ruling, the high court has now endorsed an amnesty given to landowners who had illegally cleared their so-called Legal Reserve (the part of their property that, by law, they must not clear) before July 22, 2008, and makes it unnecessary for these landowners to pay fines and to replant cleared forest.

The ruling also makes it constitutional to reduce the size of the Legal Reserve in states or municipalities largely occupied by indigenous reserves or protected areas.

In addition, the decision permits the reduction in size of Areas of Permanent Protection (APAs), even though these are considered by many environmentalists as fundamental for maintaining water supplies and preventing climate disasters like floods and mudslides. The high court’s ruling also makes it constitutional for farmers who illegally cleared APAs to get authorization to clear more land, and allows farming activities on steep slopes (over 45 degree angles) and on hilltops.

After almost ten years of declining rates of deforestation in Amazonia, forest clearing regained momentum in 2012. Though deforestation in the Brazilian Amazon was reported to have dropped some 16 percent between 2016 and 2017 — the first decrease in the deforestation rate in three years — that trend is not expected to continue into 2018 given the drought conditions affecting large tracts of the Brazilian Amazon last year. Efforts to weaken environmental laws in the country led by the Temer administration and Congress are also expected to contribute to higher deforestation rates this year.

Many environmentalists and researchers believe that the change in legislation brought about by the 2012 New Forest Code is one of the reasons for the overall uptick in Brazil’s deforestation rate over the past several years.

Environmentalists and activists are disappointed by the Supreme Court ruling, despite some advances. Márcio Santilli, one of the founders of the NGO Instituto Socioambiental (ISA), said: “The corrections made by the Supreme Court will not be sufficient to reverse the momentum given to deforestation as a result of the weakening of the law.”

Agribusiness is largely satisfied. Rodrigo Justus, an environment adviser to Brazil’s Agriculture and Livestock Confederation, said: “The ruling respected the democratic process, the position of Congress. The Forest Code has been the most controversial issue since the promulgation of the 1988 Constitution.”

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Cattle grazing on a deforested plain in Brazil. Photo by Rhett A. Butler / Mongabay.