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 August 06, 2020
Brazil dismantles environmental laws via huge surge in executive acts

 The Bolsonaro government, and especially its Environment Ministry (MMA), has made intense use of infralegal acts --- end runs around Brazil's rule of law, bypassing Congress --- as a strategy to dismantle the nation's environmental protections during the period when the COVID-19 pandemic escalated, according to a survey carried out by Instituto Talanoa, a civil society think tank, in partnership with the newspaper Folha de S.Paulo.

Between March and May of this year, the Presidency of the Republic and several ministries published 195 acts (ordinances, normative instructions, decrees and other measures) in the nation's Official Gazette that have a direct or indirect connection with the country's environmental policy, repeatedly undermining it, according to Talanoa's analysts. In the same months of 2019, before the COVID-19 pandemic provided any cover --- the government issued only 16 such measures. That represents more than a twelvefold increase.

It was also during the same period in 2020, as the pandemic killed record numbers of Brazilians, that on April 22, Environment Minister Ricardo Salles, in a meeting with President Bolsonaro and other ministers, made his purpose clear:

We need to make an effort while we are at this moment of tranquility in the aspect of press coverage because [they] only talk about COVID, and run the cattle herd and change all the rules and simplify norms. Now is the time to join efforts to make deregulatory simplification in large numbers... This week we signed a measure, at the request of the Minister of Agriculture, which simplifies the Atlantic Forest law [by using] the Forest Code.

While there is some ambiguity around the phrase "run the cattle," analysts interpreting his statement say it is clear that Salles was advocating the use of infralegal acts to reinterpret environmental legislation in order to undermine its original meaning. Although the administration's many acts do not have the same force of law because they have not been approved by Congress, their rapid issuance by the Executive puts them into effect until the legislature or the courts can examine and overturn them, which, being that there are so many could take considerable time.

"Minister Salles' statements revealed the intention to act more and more through infralegal acts," Natalie Unterstell, founder of the Talanoa Institute --- which does technical and economic analysis and public policy planning --- told Mongabay. "Salles uses his legal background to address his priorities and to avoid longer paths. Infralegal acts are supplements to laws and cannot change their understanding, just clarify or support their implementation. His strategy, so far, has had an impact on the level of our democracy. The minister has been working to change public environmental policies, causing legal instability to the country."

Unterstell and her team are currently evaluating how many of the 195 acts are aimed at dismantling environmental legislation. "What we already know is that most of the noteworthy acts change the institutional structure. They point, mainly, to a greater concentration of power in the figure of the Minister of the Environment. We detected acts of flexibility --- alteration, temporary or not, of deadlines or conditions for compliance with environmental rules, norms and laws --- and of deregulation," said the researcher.

Of the total, only 16 came from the Ministry of the Environment --- there were just two in the same period during 2019 --- while the ministries of Economy and Agriculture signed 50 and 46 acts, respectively. Despite the low number of MMA acts, those measures concentrate the greatest environmental impact, according to the investigation.

Weakening environmental legislation

Among the MMA acts that undermine environmental regulation are measures that increase flexibility in complying with environmental obligations by enterprises licensed by IBAMA (the nation's environmental agency), and an administrative reform of ICMBio (Brazil's national park agency), which led to the firing of specialized agency heads and the transfer of conservation units (UCs) management from civil authority to military personnel with no experience in environmental management.

"The number and content of government anti-environmental acts reveal the goal of dismantling the country's environmental protection apparatus. Destroying the environment has become a priority policy in the Bolsonaro government, stamped every day on the pages of the Official Gazette, and it occurs with method and persistence," Marcio Astrini, executive secretary of the Climate Observatory, a consortium of NGOs, told Mongabay.

In an official note, WWF-Brasil, another NGO, stated: "The results of this anti-environmental policy can be seen in the increasing numbers of deforestations and fires in Brazil. We are on our way to the second consecutive record of destruction of the Amazon, on whose integrity the country depends for much of its rain regimen. As a result, we are also heading towards a dramatic scenario of burnings in the Amazon and Pantanal this year."

Atlantic Forest under attack

The Amazon biome isn't the administration's only deregulatory focus. The Atlantic Forest --- a deeply threatened biome of which only 12% remains intact --- is also a target. As Salles himself explained, he issued measure 4.410/2020 at the request of the Ministry of Agriculture. The act sidesteps the Atlantic Forest Law and instead applies Brazil's Forest Code (which regulates the Amazon and Cerrado) to the Atlantic Forest. As a result, rural landowners who deforested and occupied permanently protected areas in the region up to July of 2008 will receive full amnesty for their criminal acts.

The Federal Public Ministry (MPF) filed a civil action to annul this infralegal act and Salles revoked the order, but the government didn't give up. In June, the Presidency of the Republic filed a Direct Action of Unconstitutionality (ADI 6.466) in the Supreme Federal Court to restrict the scope of Atlantic Forest Law provisions, which require the environmental recovery of illegally deforested areas since 1990.

"The government's action against the Atlantic Forest is still ongoing. Now they want to turn the Supreme Federal Court into a government legal advisor and reduce it to a Ministry of Agriculture stamper. The government, which was not able to weaken the environmental protection rules of the biome, is asking the Supreme Court to complete the task," Mario Mantovani, director of public policies at the SOS Mata Atlântica Foundation, an NGO, told Mongabay.

Another administrative measure, MMA Normative Instruction (IN) 4/2020 gained little attention when published. It establishes the payment of indemnities in the case of expropriation of properties located within federal conservation units (UC). "The IN 4/2020 replaced and altered some technical procedures of the IN 2/2009, with emphasis in article 4, which establishes an annual compensation plan in which the first criterion is the concession of UCs for public use. That choice shows what the government's priority is and it guides its implementation," Silvia de Melo Futada, adviser to the Protected Areas Monitoring Program at Instituto Socioambiental (ISA), an NGO, told Mongabay. Those most likely to benefit from IN 4/2020 are companies that receive forestry concessions to operate commercially within those conservation units.

The speed with which logging and tourism concessions to private companies are being made within conservation units (including national parks and forests) is high, said Futada. "This year alone, a forest plot and six UCs, some of which have part of their territory claimed by traditional communities, have already had their concession projects included in the Investment Partnership Program of the Presidency of the Republic."

In May, in still another measure, the Environment Ministry transferred to the Agriculture Ministry (MAPA) all power over the process of granting national forests. Forest management had already been transferred to MAPA in January 2019, but MMA still needed to be consulted so that logging concessions could be authorized. The Federal Court, however, suspended this decree in July.

That judicial ruling explained: "The transfer of the granting power of forest concession to the Ministry of Agriculture, Livestock and Supply is incompatible with the nature and competences of that body, which lacks institutional capacity to perform the function it was assigned to by decree."

The fox guarding the henhouse

The Secretariat of Aquaculture and Fisheries (SAP), part of the Agriculture Ministry since Bolsonaro became president, recently published infralegal acts including Normative Instruction 10/2020, "establishing norms for the sustainable use of native fish in continental waters, marine and estuarine, for ornamental and aquarium purposes."

Suely Araújo, senior public policy specialist at the Climate Observatory, a group of NGOs, told Mongabay that IN 10/2020 was designed to satisfy fish farmers' demands: "That act is harmful because it makes environmental control much more difficult and interferes with control rules. Among other things, the transport certificate of fish for ornamental and aquarium purposes (GTPON) was eliminated. Until then, it was the main instrument of environmental inspection in that area of activity." She added that, "I have no doubt that IN 10/2020 will increase the chances of illegal trafficking, since it eliminates the main control document of the environmental agencies of SISNAMA [the National Environment System]."

Responding to the administration's onslaught of deregulatory infralegal actions, Antônio Eduardo Cerqueira, executive secretary of the Indigenous Missionary Council (CIMI), told Mongabay: "It should be noted that the thousands of illegal miners in the Yanomami indigenous land, in the Kaiapó indigenous land; that the invasion of loggers in the Karipuna indigenous land, in Rondônia state; in the Arariboia indigenous land, in Maranhão, and in the Xavante people's indigenous land, in Mato Grosso, are a result of the weakening of [Brazilian] legislation by Minister Ricardo Salles and the other ministers of the federal public administration."

Ana Paula Vargas, Brazil Program Manager at Amazon Watch, an NGO, told Mongabay that "Salles, despite being able to carry out the environmental dismantling ordered by President Jair Bolsonaro, has encountered resistance and clear signals" from international investors, Brazilian businessmen, the nation's past finance ministers and bank officials, and European parliamentarians that "Brazil could suffer economic and commercial retaliations for its anti-environmental agenda."

The Environment Minister, who was accused a month ago by the Federal Public Ministry of being directly responsible for the dismantling of the country's environmental protection system, has since then advocated strongly in favor of industrial mining in the Amazon. Salles --- sounding more like the Minister of Mines and Energy --- declared last week: "Aren't we going to discuss mining in the Amazon? You have gigantic reserves of gold, diamond, niobium, manganese, cassiterite, and we will continue to pretend that there is no such discussion?"

When asked about the possibility of the Amazon becoming a next Serra Pelada --- a famous hill in southeastern Pará state that attracted an estimated 70,000 miners who reduced its height to a 150-meter (492 feet) deep hole --- Salles replied that Amazonian mining would be regulated by strict standards. "Take the example of the Carajás forest, where [the mining company] Vale has its [iron] ore reserve. The forest area is one of the best preserved in the Amazon because Vale takes care of it."

A few days after the Instituto Talanoa study publication, Environment Minister Salles declared that the large number of environmental acts published during the novel coronavirus pandemic were aimed at "modernizing" regulatory standards, and that the changes will not weaken the situation of the environment.

In an official note, the Ministry of Agriculture said that MAPA did not identify an increase in the publication of infralegal acts compared to last year and the ministry asserted that "With the restructuring, MAPA now plays an important role in the process of developing sustainable, efficient and inclusive agriculture."