1. 7 th. COLLOQUIUM WUHAN

2. Prof. Dr. Vladimir G. Magalhães vlad@unisantos.br Thiago Felipe S. Avanci dr.avanci@adv.oabsp.org.br

4. To Participate- to have or take a part or share with others (in some activity, etc). Public = Publicus : of the people, open to all. Public Participation: it is the intervention of the population in a particular activity, taking part in it. Public Participation on decision of the environmental licensing means the public participation in the constrution of the decision.

5.  Declaration on Environment and Development (1992). Principle 10:  “environmental issues are best handled with participation of all concerned citizens, at the relevant level” and “each individual shall have appropriate access to information concerning the environment that is held by public authorities […] and the opportunity to participate in decision- making processes”.

6.  Agenda 21 (1992) article 36.10, “a” :  “Countries should […] encourage public participation in discussions of environmental policies and assessments.”

7. The population shall have the opportunity to participate in discussions and decision making process concerning the environment. By consequence, the public hearing on the environmental licensing shall be one of these opportunities.

8.  Brazilian Constitution (1988): Title I- Fundamental Principles:  Article 1 st. The Federative Republic of Brazil […] is a legal democratic state and is founded on: […]  Sole paragraph - All power emanates from the people, who exercise it by means of elected representatives or directly, as provided by this Constitution.

9. Brazilian Constitution (1988): Article 225 - “All have the right to an ecologically balanced environment […] and both the Government and the community shall have the duty to defend and preserve it for present and future generations”.

10.  Brazilian Constitution (1988):  art.225, Paragraph 1 st. – “In order to ensure the effectiveness of this right, it is incumbent upon the Government to: IV - require […] for the installation of works and activities which may potentially cause significant degradation of the environment, a prior environmental impact study, which shall be made public;”

11.  The public participation in the public hearing is one opportunity offer to population to perform this duty.  If the Brazilian Constitution imposes this duty to the Government and population, the Government (as manager of the Brazilian environment) should also ensure opportunities for the population to perform this duty.

12.  The generic rules about the public hearing on the environmental licensing are created by the Conselho Nacional do Meio Ambiente (National Council on the Environment) CONAMA.  The federal law #6.938/1981, that establish the Brazilian National Policy on Environment, is the legal basis for rulemaking capability of CONAMA and also establish the necessity for environmental licensing and Environmental Impact Study in some cases as well.

13.  Federal Decree #9.9274/1990 (art.17) establishes that the environmental impact study (EIA) will be conducted by qualified technicians and will integrate the Environmental Impact Report (RIMA), and all the expenses for it shall be in the account of the project proponent. ▪ Nowadays actually the entrepreneur hires and pays the technicians to do the Environmental Impact Study (EIA) and Report (RIMA).

14. Federal Decree #9.9274/1990  Article 17: about the environmental licensing. ▪ Paragraph 3 rd. – The RIMA shall be accessible to the public (…).

15. CONAMA Resolution # 01/1986, art.11: ▪ “In determining the realization of the EIA and presentation of the RIMA, when judges necessary, the public organ shall promote the public hearing to inform about the project, its environmental impacts and discussion of RIMA”.

16.  CONAMA Resolution # 09/1987:  Article 1 st.: The Public Hearing described in CONAMA Resolution #01/1986 aims to expose the contents of the concerned product in question and its respective RIMA, answering doubts and collecting criticisms and suggestions about it.

17. CONAMA Resolution # 09/1987:  Article 2 nd.: The Environmental public organ shall promote the public hearing if it judges necessary, or if it requested by any civil society or the Public Prosecutor or by 50 (fifty) or more citizens. ▪ Citizen: ▪ Strict sense: people legally capable of voting ▪ Large sense: everyone that can actuate in the governments subjective, even the ones without the legal capability of voting.

18.  CONAMA Resolution # 09/1987:  Article 2 nd. Paragraph 2 nd.: If public hearing was requested and in the event the state agency did not realize it, the license granted shall be invalid.

19.  CONAMA Resolution # 09/1987:  Article 4 th.: In the end of each public hearing shall be drawn summary minutes. Solo paragraph. All written and signed documents that are delivered to the chairman of the section shall be attached to the minutes.

20.  CONAMA Resolution # 09/1987:  Article 5 th.: The summary minutes and its annexes of public hearing(s) shall server as basis, together with the EIA, for the analysis and final report of the licensor concerning approval or rejection of the project. ▪ This means the licensor shall fundament the decision in the RIMA, also in the minutes and either in the annexes. ▪ What happens in case of the RIMA and the position of the people differs? ▪ This law is silent in this situation so the licensor (probably) decides as its convenience, for the reason that there is no legal indication to give priority to the popular opinion, even that this opinion is well grounded.

21.  A combined analysis of the Rio Declaration and Agenda 21 (international documents signed by Brazil) revels that the people (=citizens) shall have the possibly to participate in discussions and decisions on the environment subjects, which, by logical consequence, includes discussions and decisions on the granting of environmental licenses.

22.  The Brazilian Constitution provides direct popular participation in public issues in general and, therefore, also in its environment.  However, despite this, the infra- constitutional on environmental licensing and public hearing has failed to explicitly ensure that.

23.  In consequence, the normative acts of the CONAMA about public hearing on environmental process are out of step with the Brazilian Constitution.

24.  To grant the environmental license, the licensor have the exclusive power to take into account or not the opinion and the wishes of the population and the expertise, brought into the EIA/RIMA.  Thus, in Brazil, the public hearings in the licensing process does NOT have any deliberative power. It may only fundament some aspect on the final report of the licensor.

25.  The Brazilian law arbitrary establish an minimum of 50 citizens to be requested the public hearing, limiting popular participation on environmental licensing process.  it goes against the Principle 10 of Rio Declaration that enunciates “each individual shall have […] the opportunity to participate in decision-making processes”. In this line, if a single individual request the public hearing, it should be granted.  Also limits when uses the word “citizens”, which allows an interpretation in a strict sense what would exclude people without voter registration.

26.  Brazil is fulfilling fully the Agenda 21 but partially the Principle 10 of Rio Declaration because establish rules that provides, at least, the possibility of public hearing, witch possibilities to the people discuss the RIMA but not guarantee the fact that each individual and the population as one (without any barriers) can participate in the Government's decision to grant the environmental license.

27.  In this sense, there is no fully environmental governance (EG) in Brazil, because the normative regulation does not allows a fully public participation. With this impediment, the population are kept out of the decision-making process of environmental preservation and sustainable development and environmental licensing.  With the objective of increase EG, CONAMA should change its rules on the public hearing in the licensing process to determine that the scientifically reasoned decisions of citizens should prevail in case of conflict with the Environmental Impact Study (witch is promoted by the company concerned).

28.  The Environmental International Law and the Brazilian Constitution defines the need of Environmental Governance, as well predicted in the Principle of Public Participation (Principle 10 of Rio Declaration).  From this principle, it must be applied the principle “In Dubio Pro Cives”:  in doubt, the people shall be regarded when/if their opinion is scientifically reasoned.

29. Thank you! vlad@unisantos.br