After all, what are the possible effects of the repeal of these Resolutions, which occurred yesterday after a meeting of the National Environmental Council?
CONAMA is the Brazilian collegiate organ responsible for the adoption of consultative and deliberative measures about the National Environmental System, created by the National Environmental Policy (in 1981), which issues regulatory norms and environmental standards for the activities that use environmental resources, nationwide.
Since its creation, CONAMA’s actions have generated doubts and much controversy, especially about the binding force and constitutionality of its resolutions. The fact is that the judiciary ruled out the application of these norms in very few situations and CONAMA, throughout its existence, has revisited its resolutions, which seems absolutely normal to us.
In any case, by the hierarchy of laws, CONAMA’s resolutions have regulatory force only, and not the force of law. The fact is that CONAMA cannot usurp the legislative competence for the creation or extinction of environmental obligations, but only advise, detail, adapt to the legislation in force by creating regulations, procedures and parameter.
Analyzing the repealed Resolutions we have that:
Conama Resolution 303/2002 dealt with the generic definition of what would be mangroves and restinga strips on the Brazilian coast, determining protection rules, including as to their extension. Yes, mangroves and restinga strips are biomes protected by Law. However, the extent and form of its preservation depend on technical evaluation for its definition (after all, it is not possible to generalize in a resolution its occurrence), in the exact terms of the law.
Conama Resolution 302/2002 dealt with the preservation of the marginal strip of artificial reservoirs. There are provisions in the Forestry Code about the preservation strip of the reservoirs, besides many other specific rules. Although it is debatable that this resolution went beyond its competence (creating or expanding environmental obligations), the regulation brought relevant parameters for preservation. The environmental authorities that are able to license a certain activity in these areas should pay attention to the legislation for the preservation of the surrounding areas.
CONAMA Resolution 284/2001 dealt with irrigation procedures, prioritizing energy-efficient equipment and water use. The environmental authorities capable of licensing or granting the use of water resources must adopt such measures.
CONAMA Resolution 264/1999 dealt with waste incineration. New regulations were approved that, according to the Council’s argument, are in accordance with the recommendation of the World Health Organization (WHO), which prescribes the burning of toxic waste in controlled environments, since they can cause damage to the population’s health. Since 1999, the solid waste regulations have undergone major changes, including the National Solid Waste Policy and the Sanitation Framework, as well as other regulations specific to the sector. It seems reasonable that an update has occurred.
Therefore, in practical terms, the repeal of these norms does not authorize the unbridled exploitation of sandbanks, reservoir banks, open air burning of waste, or even any irrigation project without parameters (which would even be uneconomical). In addition, it must be said that the norms are dynamic and need to go through readjustment and updating procedures.
Despite the fact that CONAMA resolutions do not have the force of law and that it is natural to review the regulations from time to time, it cannot be said that there are no impacts that result from acts like these, unfortunately to extreme sides. There is an arm wrestling match underway: on one side the Public Prosecutor’s Office defending utopian theses detached from reality, and on the other, the Government, albeit legitimately, seeking to impose its agenda.
In addition, there are numerous issues of very high environmental relevance that require urgent attention from the Government.
What remains, in the end, are antagonistic political interests far removed from what should in fact be analyzed, debated, and put on the agenda: how to encourage sustainable development, promoting the protection of these environmental aspects so relevant to all sectors, and consequently to all of us, in an adequate and fair way.