Environmental Compensation: A Supreme Court Decision, an article by Bruno Campos Silva published on the Conjur Portal, references the article “Risk Factors of the Environmental Reserve Quota” authored by Senior Partner João Emmanuel Cordeiro Lima.
In a recent plenary session, the Brazilian Supreme Federal Court (STF) addressed motions for clarification in cases related to the constitutionality of provisions in the new Forest Code (Law No. 12,651/2012), specifically ADC 42 and ADIs 4901, 4902, 4903, and 4937. On October 24, 2024, the Court unanimously, under the rapporteurship of Justice Luiz Fux, reinstated the use of the term “biome” to optimize and thus enable effective environmental compensation concerning Legal Forest Reserves (RFLs).Mondaq+4KLA Law+4Mondaq+4
This decision not only brought stability to the legal framework but also provided predictability and legal certainty to the application of environmental compensation mechanisms and their respective effects.
The ruling is expected to benefit various sectors and the environment itself, as it corrected the previously inadequate use of the term “ecological identity” in addressing numerous issues.KLA Law+3JD Supra+3Mayer Brown+3
In earlier writings, critiques were made regarding the use of “ecological identity,” a term lacking technical and scientific rigor, especially since the Forest Code does not reference it.
Had “ecological identity” been maintained as a criterion for environmental compensation, it could have jeopardized the use of Environmental Reserve Quotas (CRAs), hindering beneficial operations for the environment.
João Emmanuel Cordeiro Lima highlighted the risk of stakeholders acquiring a CRA within the same biome, only to later discover it would not be accepted due to a lack of “ecological identity” with the area intended for compensation. He noted that the Forest Code and its regulations require only information about the biome and vegetation status, not “ecological identity,” which could complicate the CRA transaction process.
The previous interpretation by the STF required that, beyond being within the same biome, the area must also meet the “ecological identity” criterion—a concept lacking clear definition and practical applicability.
The preferred interpretation preserves the “biome” as the locational parameter, ensuring the functionality of the CRA and legal security for landowners with Legal Reserve deficits.KLA Law
Therefore, to promote legal certainty and sustainable development, the recognition and use of the term “biome,” as defined and required by law (e.g., the Forest Code), is more appropriate, abandoning the “ecological identity” criterion.
Bruno Campos Silva is a lawyer, legal consultant, holds a master’s degree in Civil Procedural Law from PUC-SP, specializes in Civil Procedural Law from CEU-SP (now IICS), LL.M in Data Protection: LGPD & GDPR with dual degrees from the Fundação Escola Superior do Ministério Público do RS and the Faculty of Law of the University of Lisbon. He is a law professor at Unipac-Uberaba-MG and the Federal University of Uberlândia-UFU, president of the Environmental, Agrarian, and Urban Law Commission of the 14th Subsection of the OAB-MG, and an author and coordinator of legal works.
Published in Revista Consultor Jurídico on October 29, 2024, at 4:15 PM.
https://www.conjur.com.br/2024-out-29/compensacao-ambiental-acerto-do-supremo-tribunal-federal/
