The framework was considered one of the most advanced in the world at the time. Based on this legislation, a three-stage licensing procedure was established—Preliminary License (LP), Installation License (LI), and Operating License (LO)—supported by technical studies and analysis by technicians from environmental agencies and decided upon by collegiate bodies that include the participation of stakeholders, including civil society. The institutional locus of licensing, municipal, state, or federal, is defined primarily by the territorial reach of the project’s potential impacts.
Evidently, although the model is democratic and grounded in technical-scientific analysis, reality does not always conform to this idealized design, as conflicting interests often collide in the decision-making arena. In a decision-making process typically involving three parties (government, entrepreneurs, and civil society), two of these, usually the first two, frequently align to favor a developmentalist logic to the detriment of environmental protection and monitoring. Biases in environmental studies, commonly conducted or outsourced by the companies themselves, and limitations on public participation are also cited as deficiencies in the process. [1]
But the most virulent critics of the model are not the academy, but rather the opposite end of the ideological spectrum, conservative forces that view environmental licensing as slow and obstacle to development. This tension recurrently arises in debates around the country’s development models, exposing contradictions even in the political left when in power. The conflict between Marina Silva and the Lula government during the licensing of the Belo Monte Hydropower Plant is perhaps the best illustration of this, eventually leading to her resignation in 2008.
When we examine the current context, however, an unprecedented advance of these conservative forces emerges, culminating in the recent victory over the remaining safeguards to contain developmentalism’s predation toward the environment. Under the pretext of “simplifying” and “speed up” licensing procedures, Congress approved Law 15,190 in July of this year, originating from the so-called “Devastation Bill”, less than a week before COP-30.
Ironically, we are now seeing a regression in environmental protection relative even to Law 6,938, enacted during the Military Regime. The new flexibilities are numerous and alarming. They range from allowing deforestation in important biomes without prior review by state or federal environmental agencies to “self-licensing”, a conceptual aberration. They also include automatic exemption of certain activities from licensing requirements. Interventions in Indigenous lands not yet officially recognized and in quilombola territories lacking finalized titling are also exempted from licensing. One of the most troubling “innovations” of the law is the creation of the Special Environmental License (LAE), which authorizes the federal government, by mere administrative act, to designate priority projects, thereby granting differentiated treatment to interventions such as offshore oil exploration at the mouth of the Amazon River. [2]
President Lula vetoed some of the provisions with the greatest threats to environmental protection, but amid minor political disputes between the Executive and Legislative branches, these vetoes were overturned by both the Chamber of Deputies and the Senate at the end of November.
A particularly emblematic case among the overturned vetoes concerns the exemption from licensing for water and sanitation interventions, such as the construction of wastewater treatment plants, until universalization targets are reached. This liberalization aligns closely with the country’s current policy for this sector, which strongly promotes the privatization of services, a process that is accelerating vertiginously.
In this sector, the deepening of the neoliberal turn is unmistakably clear. On the one hand, the state is withdrawing from the provision of an essential service that the Brazilian government itself recognizes as a fundamental human right. On the other hand, it is removing potential barriers that might hinder the advancement of this policy, through regulatory capture. Neoliberalism is entrenched in Congress, which passed both the legislation privatizing the water and sanitation services and the legislation weakening environmental protections, and in the Executive. The Federal government, despite vetoing some deregulatory provisions, has played a leading role in the privatization of water and sanitation, particularly through BNDES.
Recalling Harvey, neoliberalism is a political-economic theory that holds that human well-being is best advanced through individual entrepreneurial freedoms. Within this politics, the state’s role is to ensure the institutional framework necessary for such practices and, where markets do not exist, as in the case of water, to create them. The key issue lies in the outcomes of this approach, which invariably include greater poverty, inequality, unemployment, and environmental degradation. Future generations will bear the consequences of the moment now developing in the country. [3]
[1] See Zhouri, A. As Tensões do Lugar: Hidrelétricas, Sujeitos e Licenciamento Ambiental (2004) e Acselrad, H (org). Conflitos Ambientais e a Questão da Justiça (2004).
[2] It is no coincidence that the innovation was produced by Senator Alcolumbre, president of the Senate, from Amapá, state where the mouth of the Amazon River is located.
[3] Harvey, D. A Brief History of Neoliberalism. Oxford (2005)