Six environmental organizations asked the STF (Supreme Federal Court) to reject a Direct Action on Unconstitutionality (ADI, in Portuguese) n° 6.446, which was filed by the President of the Republic in an attempt to weaken the rules for protecting the Atlantic Forest

By WWF-Brazil

The request, which was based on ecological, legal and economic arguments, was made in a statement by Amicus Curiae (instrument that allows civil society participation in the STF), signed by the SOS Mata Atlântica Foundation, WWF-Brazil, ISA (Instituto Socioambiental), Atlantic Forest NGO Network, AMDA (Minas Gerais Association for the Defense of the Environment) and Apremavi (Association for the Preservation of the Environment and Life).
 

Through the ADI, the Federal Government seeks to restrict the scope of provisions of the Atlantic Forest Law that require the environmental recovery of illegally deforested areas since 1990, when the first special biome protection standard was approved. The objective would be to regularize a small portion of areas explored by the agricultural sector, whose activities started illegally. If it succeeds, the measure will amnesty fines, end embargoes and prevent the reforestation of degraded regions. In addition to stimulating new deforestation, the Government's claim can cause irreversible damage to the biome, considered one of the richest in biodiversity on the planet and the most degraded in the country.
 

By resorting to the STF, the Government tries to reestablish Order n° 4410/2020, which was revoked by the Ministry of the Environment a little less than two months after its publication, due to strong pressure from civil society and the Public Ministry. Like the ADI, the Order, which was prepared at the request of the Ministry of Agriculture, aimed to legalize illegal deforestation in the Atlantic Forest.
 

A series of public civil actions and popular actions were filed to annul the order, one proposed by SOS Mata Atlântica. After the release of a video in which the Minister of the Environment proposes to the government to take advantage of the pandemic caused by the new coronavirus to “go by with the catlle drive" and relax the legislation, the President of the Federal Senate's Environment Commission and the 4th Chamber of the Federal Public Ministry requested that the Attorney General's Office investigate the Minister for a possible crime of responsibility involving the drafting of Order 4410/2020, among other facts.
 

“They want to transform the STF into a government legal advisor, reduce it to a Ministry of Agriculture validator. The Government, which did not have the strength to weaken environmental protection rules, is asking the Supreme Court to complete the task”, criticizes Mario Mantovani, public policy director at SOS Mata Atlântica.

“From a legal point of view, ADI could not even have been proposed. They asked the STF to validate the Order 4410, but the next day they revoked it. Direct actions do not deal with revoked acts”, explains lawyer Rafael Giovanelli, from WWF-Brazil. “In addition, ADI proposes a discussion between two laws, and not between a law and the Federal Constitution. The STF could only act if there was a direct relationship with the Constitution. This relationship was not demonstrated at ADI”, he adds.
 

Erika Bechara, legal advisor at SOS Mata Atlântica, also recalls that the STF recently consolidated the understanding that environmental damage must be repaired, regardless of the moment in which it was caused. “For the STF, the action to demand the remedying of environmental damage does not expire, that is, no matter when the damage was caused, whether it was yesterday, last year or thirty years ago, the cause will need to recover the environment. Therefore, there is no justification for legalizing deforestation carried out in disregard for the rules of protection of the Atlantic Forest”, comments Erika.
 

The organizations argue that, due to the great accumulated experience and knowledge produced in the many years of work in the environmental area, they can offer a set of information and useful arguments for resolving the dispute in the STF.
 

The NGOs request that also included technical notes from the Water Governance Observatory (OGA, in portuguese) and Mapbiomas, which show the impact on water issues, agricultural activities and the extent of areas that would no longer be restored if the Atlantic Forest Law is not fully complied with.
 

“The Atlantic Forest is the first Brazilian biome that has a specific law, a kind of special protection law, which needs to be respected for the biome to stay alive”, says João de Deus Medeiros, biologist, professor at the Federal University of Santa Catarina and General coordinator of the Atlantic Forest NGO Network.

The organization's lawyers argue that the government's action seeks to revoke part of a legal regime of special protection for the Atlantic Forest biome that has been in place since 1990 and which does not allow the consolidation of illegal deforestation.
 

“go by with the cattle drive”
At the ministerial meeting on April 22, which was later released by court order, Environment Minister Ricardo Salles suggested that the moment when “press attention is turned exclusively... almost exclusively to COVID” to “pass the ‘infralegal reforms’ of deregulation, simplification...”. According to the minister, it was necessary “an effort from us here [that is, from the Federal Government] while we are in this moment of tranquility in terms of press coverage, because it only talks about COVID, and go by with the cattle drive and change all the rules and simplify standards". He admitted in the recorded meeting that he had the objective of “simplifying the Atlantic Forest Law”, “at the request of the Ministry of Agriculture”.
 

Environmental liability
Technical note written by Marcos Reis Rosa and Tasso Azevedo, respectively technical coordinator and general coordinator of MapBiomas, states that 329.700 hectares of deforested areas were identified in Permanent Preservation Area (APP) between 1990 and 2008 in private properties, which must be recovered in accordance with the Atlantic Forest Law, and which could no longer have this obligation according to an order from the Ministry of the Environment. The total area that could be amnestied represents 0.41% of the total area of rural properties and 2.46% of the Permanent Preservation Areas analyzed in the Atlantic Forest. This area of APP that suffered suppression of vegetation after 1990 and which is currently under agricultural occupation corresponds to 42 thousand hectares, which is equivalent to 0.1% of the cultivated area in the biome.
 

“It is unacceptable that the government wants to mischaracterize the Atlantic Forest Law to benefit a few criminals, instead of worrying about valuing those who comply with the legislation, which is the vast majority of rural producers,” says Mario Mantovani, director of Public Policies at SOS Mata Atlântica.
 

The OGA technical note, on the other hand, presents case studies and data on the importance of the Atlantic Forest and native vegetation to promote water security and environmental services to society. The document recalls the landslide in the mountainous region of Rio de Janeiro years ago and cites a study that analyzed the region and concluded that, of the total landslides that occurred, 92% occurred in areas altered by man - only 8% occurred in areas with well-preserved native vegetation.
 

The note also states that Sabesp (Basic Sanitation Company of the State of São Paulo), responsible for water supply in the Metropolitan Region of São Paulo, estimates that the restoration of 4 thousand hectares of forests in the Cantareira System basin will be able to reduce by up to 36% the sediment input in the rivers that form the reservoirs. This will reduce dredging operations and the use of chemicals to treat water.

In 30 years, this investment in green infrastructure represents savings of US$ 69 million, with a return on investment of 28%, compatible with traditional infrastructure works in the supply sector.
 

The OGA further reinforces that Brazil has committed itself to the Paris Agreement with a goal of forest restoration - to recover 12 million hectares by 2030 - and that the protection of the Atlantic Forest is vital for water security and climate resilience.