Bill proposes exemption from environmental licensing for dredging and may impact ports; experts weigh in

Maintenance dredging at ports may be exempted from environmental licensing. This is the proposal of the bill that establishes the General Environmental Licensing Law (2,159/2021), approved with amendments by the Senate at the end of last month and now returned to the House of Representatives. The service, which is also carried out at the Port of Santos, aims to prevent siltation and maintain the navigability of the navigation channel.

“I see the exemption from licensing proposed in the bill as progress in reducing bureaucracy and necessary for the sector, but, at the same time, without clearly defining the rules of the game, the approved project may generate controversy due to the existence of other regulations that already address the issue,” says Maria Cristina Gontijo, a lawyer specializing in Environmental, Maritime and Port Law.

The current model follows the provisions of the National Environmental Council (Conama) Resolution 454/2012, in addition to other regulations. “They aim, besides promoting the monitoring of activities to protect the environment and public health, to ensure navigation safety, such as the Maritime Authority Standards (Normans). An important point of the current model is the requirement of an environmental monitoring program for the dredged sediments,” explains the lawyer.

Comparing it with other activities exempt from licensing, such as emergency works or interventions in cases of public calamity, in addition to urgent actions aimed at preventing environmental damage, the exemption would be conditional upon the submission of a report to the competent environmental agency, according to the bill’s text.

“This is an interesting point since maintenance dredging does not, in fact, require the same instruments applicable to a new deepening dredging, but it also cannot be left unmonitored,” she adds.

For this reason, initially, Maria Cristina points out concerns about the legal uncertainty that may be caused by the provision that merely states that “maintenance dredging is exempt from licensing,” considering all the regulations surrounding the matter that will remain in force.

“How will the control of this dredged material be carried out? Reducing bureaucracy is not the same as ceasing oversight, which is a duty of both individuals and the state, as established in Article 225 of the Federal Constitution (Everyone has the right to an ecologically balanced environment, a common good of the people and essential to a healthy quality of life, imposing on the Government and the community the duty to defend and preserve it for present and future generations),” she questions.

Lawyer Maria Cristina Gontijo also reminds us that lawmakers must consider that each sector has its specificities, including other works that encompass different port facilities, from small-scale (IP4) through Private Use Terminals (TUPs) to the organized port as a whole, such as the Santos complex.

“To provide legal certainty, it is necessary to thoroughly examine existing legal provisions so as not to create a new tangle of rules that aim to reduce bureaucracy but continue to propagate the legal uncertainty so often discussed in sector forums,” she states.

Another point raised by the lawyer is the need to increase the number of personnel in the licensing bodies, as well as provide training for them to act in sectors such as port operations. “It is not enough to have legislation that preaches efficiency when, in practice, the licensing process is carried out in the same way, without modernization tools and without a minimum and properly trained workforce,” she observes.

Discussed since 2004, the General Environmental Licensing Law has the primary objective of standardizing and establishing clear rules for the issuance of environmental licenses nationwide while also simplifying the licensing process for low-impact projects. In practice, the aim of Bill 2,159/2021 was to legalize a series of rules from the National Environmental Council (CONAMA), ordinances, and other acts, as well as federal and some state licensing practices.

Environmentalists are concerned about the new General Environmental Licensing Law. Professor at the Institute of the Sea of the Federal University of São Paulo (Unifesp), Leandra Gonçalves, believes the text was worsened in the Senate. “They made modifications that deregulate the licensing process, which is already quite weakened,” she says.

Regarding the port sector, Leandra considers it a matter of perspective whether the change is good or bad. “It is good for the economic sector because it can speed up licensing procedures and reduce costs and timelines for new port projects. This appeals to investors and logistics operators,” she notes.

From a socio-environmental perspective, the professor considers it harmful. “Ports are high-impact projects and, with more flexible rules, there is a risk of approval without proper studies on cumulative impacts, marine pollution, loss of coastal habitats, and conflicts with traditional communities, such as fishermen,” she argues.

An additional concern, according to Leandra, is that the law does not specifically address the impacts on the sea, “which is problematic for activities such as dredging, port expansion, and handling of hazardous cargo.”

Professor of the Doctoral Program in International Environmental Law at the Catholic University of Santos (UniSantos), Fernando Rei believes that removing environmental oversight from dredging would be highly damaging to the marine biome. “Given the impacts it causes, not only in the estuary but in the entire basin, this naturally needs to be monitored and requires constant and updated technical and scientific studies,” he explains.

The professor notes that the law enhances the divide and polarization between economic development and environmental protection. “It is essential that, in the progress of the bill in the House, some of the excesses are removed so that it truly serves the country’s international commitments and not just specific interests that are strongly represented in Congress, such as mining, agribusiness, and oil exploration.”

In a statement, the Santos Port Authority (APS) reports that the maintenance dredging of the Port of Santos has an environmental license issued by the Brazilian Institute of Environment and Renewable Natural Resources (Ibama), valid until 2032. “Regarding environmental licenses for other works, it is important to highlight the ESG commitment of the Santos Port Authority, which is even included in its strategic planning,” it says.

The agency notes that, regardless of the requirements and demands of control and inspection bodies, its goal is to monitor and minimize the impact of port activities on climate change, promote energy efficiency policies, stimulate new sources of energy generation, and implement measures for climate adaptation.

In addition, the goals include avoiding and mitigating water and ocean pollution, protecting ecosystems and promoting biodiversity preservation, encouraging the sustainable use of natural resources, and establishing practices and processes that allow an organization to systematically manage, control, and improve its environmental performance and minimize the environmental impacts of its activities, products or services, in line with its environmental policy and applicable legal and regulatory requirements.

“These goals are fundamental for maintaining viable life for humans and other species on this planet, and thus APS will not refrain from setting the highest sustainability standards in implementing public infrastructure equipment at the Port of Santos,” it emphasizes.

Regarding the possible changes in environmental legislation, the Port Authority states that any evaluation is still in its early stages, as parliamentary discussions are ongoing. “What can be said is that, regardless of the form the law takes, APS will comply with what is determined,” the note concludes.

Source: A Tribuna

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