Getting an environmental license is a mandatory procedure for companies whose operations can cause damages to the country's environment. In this article, you will know the steps of licensing, the responsible institutions, and the penalties for companies that start its operations in Brazil before obtaining proper authorization.
Under the Brazilian law, the installation of an enterprise or activity potentially harmful to the environment must undertake environmental licensing beforehand. The national laws regarding environmental licensing are under the responsibility of the municipal, state and federal governments.
This obligation is shared by the State Agencies for Environment and IBAMA (Brazilian Institute for the Environment and Natural Resources), as integral parts of SISNAMA (National Environment). IBAMA operates mainly in the licensing of largeinfrastructure projects involving impacts in more than one state and activities of [oil and gas]( on the continental shelf.
Normally, the evaluation process is done by the state environmental agency that will study the impacts the enterprise will cause or may cause to the environment, such as its potential or its ability to generate polluting liquids (sewage and waste-water), solid waste, air emissions, noise and the potential risk of their operation, such as explosions and fires.
The environmental license creates the legal conditions for the activity or project to operate causing the least possible impact to the environment. Therefore, any change must undergo re-licensing operating with the request for Previous Permit. To get information on how to take the operating license the entrepreneur must consult the environmental agency of the state where the project will be implemented.
During the licensing process, IBAMA consults environmental agencies, institutions and historical heritage management entities representatives of the possible affected communities. The process can include public hearings, the main channel for community participation in decisions.
The entrepreneurs must present environmental studies to IBAMA for review and approval. In the case of a work of significant environmental impact during the previous license the executives shall provide the responsible Study and Environmental Impact Report (EIS/EIR). The technical and scientific document brings an environmental diagnosis, analyzes their impacts and compensation measures.
Steps for obtaining environmental licenses
There are three types of environmental permits in Brazil. Each license corresponds to a specific step of the process to obtain full environmental clearance:
Step 1: Licença Prévia – LP - (Previous Licence)
For obtaining the LP of an enterprise, the entrepreneur should seek the competent environmental agency still in the preliminary phase of the project planning. Initially, the environmental agency will define, with the participation of the entrepreneur, the documents, projects and environmental studies needed to initiate the licensing process.
Then, the entrepreneur will hire the preparation of environmental studies, which should include all the requirements determined by the licensing authority in the first reunion. Completed the analysis, the licensing agency will issue a technical conclusive report and establish the mitigation measures that should be considered in project deployment.
The fulfillment of these measures is a sine qua non condition to obtain the second license (Installation License). After paying a fee and withdrawing the License, the entrepreneur must publish information on the grant communicating daily official sphere of government that licensed it and in a newspaper of general circulation.
Step 2: Licença de Instalação – LI - (Installation License)
The request of LI should be addressed to same environmental agency that issued the LP. Upon request the installation permit, the entrepreneur must:
Verify compliance with the conditions established the previous license
Submit the plans, programs and environmental projects, detailed schedules and their implementation
Provide a breakdown of parts of projects engineering that relate to environmental issues.
The plans, programs and environmental projects will be analyzed by the responsible environmental agency, and, if necessary, by environmental agencies from other levels of government. After this review, expert opinion is prepared with positioning for or against the granting of the installation license. Following the examination, the entrepreneur makes the payment of the value charged by the license to withdraw it.
During the period of the LI, the entrepreneur must implement certain constraints, with the objective to prevent or remedy environmental and social impacts that may arise during the construction phase of the work, by measuring to be taken before the start of operation. Compliance of constraints is essential to request and obtain Operating License.
Step 3: Licença de Operação – LO - (Operating License)
When applying for LO, the entrepreneur must prove to the same environmental agency that granted the previous license:
Implementation of all environmental programs that should have been executed during the term of the LI
Implementation of the physical and financial schedule of the compensation environmental project
Compliance with all conditions established when granting the LI.
Based on documents, projects and studies requested by entrepreneur, on advice from other environmental agencies perhaps consulted and technical inspection at the project site, the agency prepares technical opinion on the possibility of granting operating license
Granted an operating license, the entrepreneur is obliged to implement environmental control measures and other conditions set forth, under penalty of having the LO suspended or canceled by the grantor agency.
Consequences for not obtaining the environmental licensing
Performing projects before the issuance of the Previous License can cause unnecessary losses and should be avoided. The thread is to get the correct LP and then prepare engineering designs, because if the license imposes changes in the location or design of the project, the project must necessarily be redone to adapt to what was approved.
Starting the works before granted the Installation License will result in the stoppage of construction by the executive authorities. The lack of environmental permits for each phase of the project is configured as a serious crime and it can cause following consequences:
Imprisonment of one to six months, or fine to the responsible entrepreneurs and/or prohibition to build, renovate, enlarge, or make install work in any part of the country. There aggravation of penalty in case of abuse of rights obtained through licensing environmental
Imprisonment from one to three years and fine, when the responsible person the legal duty or contract fails to comply with relevant environmental interest obligation.
Imprisonment from three to six years and fines for those who prepare or submit in licensing, forest concession or any other administrative procedure study, report or environmental report fully or partially false or misleading, including by omission.
The Brazilian environmental institutions
The issues regarding the environment protection are centralized in the SISNAMA (National Environmental System), which is composed by bodies and agencies of the Union, States, Federal District, the Municipalities and the Foundations established by governmental agencies responsible for the protection and improvement of environmental quality. SISNAMA has the following structure:
- Upper Body: Governing Council, appointed by the Federal Government
- Deliberative, Legislative and Advisory Body: National Council of the Environment (CONAMA)
- Central Authority: Ministry of the Environment (MMA)
- Executing Agency: IBAMA
- Sectional Bodies: state agencies responsible for implementing programs and projects for the control and supervision of activities capable of causing environmental degradation.
- Local Bodies: municipal entities, responsible for the control and supervision of these activities in their respective jurisdictions.
The main guidelines for the implementation of environmental licensing are expressed in Law 6.938/81 and the CONAMA Resolution 001/86 and No. 237/97. Besides these, was recently published Complementary Law No. 140/2011, which discusses the state and federal jurisdiction for licensing, taking as a basis the location of the project.