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Five years after its approval, the Brazilian Forest Code faces challenges to be implemented

Photo: WWF

The Brazilian Forest Code celebrated its 5-year anniversary on May 25th. Since its approval, the implementation of the new legislation has advanced as it can be seen with the successful Rural Environmental Registration (CAR), which is already one of the largest environmental geospatial databases in the world. However, the Code has faced obstacles such as the slow pace in validating CAR and implementing the Program for Environmental Regulation (PRA) at the state level, in addition to Congress initiatives to postpone the deadline to register new properties. Coalizão Brasil has once again denounced the third and last proposal to postpone CAR, as a way to support the enforcement of the law.

In addition to the abovementioned, the debate over the constitutionality of the Code has been reopened. The Brazilian Supreme Court (STF) is about to set a date to try the lawsuits that may nullify the piece of legislation.

Frederico Machado, expert in public policies for WWF and one of the leaders of Coalizão’s Forest Code Working Group explains the current scenario and the actions that have been developed on this issue.

What are the advances seen so far in the implementation of the Forest Code?

The main advance regarding the Forest Code is the number of registrations in the Rural Environmental Registration System database (Sicar). There are more than 4 million registrations and 400 million hectares in the database. It is possible to affirm that it is one of the largest environmental geospatial databases in the whole world. The successful registration is the most significant victory in the Forest Code agenda so far.

And what is the biggest obstacle?

The challenges now lie in validating CAR and implementing PRA. These agendas are under the state governments.
After the owner or land squatter includes his property’s data (perimeter, environmental features, consolidated area, etc.) in Sicar, the relevant body needs to validate this information because it is self-declared. In this case, state governments – usually state environmental secretaries – need to declare if the information is legitimate or if there are inconsistencies. This is the process known as CAR validation.

It is crucial for states to politically prioritize these agendas (CAR validation and PRA implementation) so these initiatives can grow in scale. It is also important that the states guarantee the necessary operational structure, such as equipment and staff. The Federal Government should give its full support, help develop the different modules – which has been done by the Brazilian Forest Service (the responsible body) in partnership with Lavras Federal University.

The international community should also offer its support through investments and the creation of specific funds to strengthen this agenda. In some states there are ongoing financing actions, such as the Amazon Fund and resources from the cooperation with Germany. However this needs to be intensified since these agendas require a substantial amount of resources, considering the volume of information to be analyzed and the millions of hectares under environmental obligation to be regularized.

Nowadays, some states are pushing those agendas. There are nine states in the process of validating CAR and most states have already regulated PRA. Yet, it is important to implement field actions which will only be possible through the creation of support policies to owners and squatters that have obligations to meet.

Why has validating registrations been slow at state level?

Unfortunately, the truth is the agenda has not become central to most states’ policies, validating CAR has not been set as a priority. Furthermore, there is the financial crisis and the precarious conditions of many state environmental bodies. In other words, this is both a political and a financial issue.

Does the delay in validating CAR prevent the advance of the Forest Code?

The Forest Code Working Group (FC WG) understands that delay in the validation does not prevent the beginning of PRA. The largest environmental benefits of this new legislation are in PRA, through compensation and restoration. The lack of validation does not prevent the producer from regularizing its rural property. However, the producer lives with legal uncertainty since he does not know whether the information he has declared was ok or if there will be any disputes from the environmental body.

Therefore, this question hangs over the producer’s head. This is also bad news for the consistency of Sicar’s data, as the information remains self-declaratory for too long without gaining more credibility. That is why validation is so important.

Recently, a new proposal to postpone the deadline for CAR registrations has been under discussion in Congress. If it passes, would it harm the credibility of the Forest Code?

Sure. It conveys a very negative message, it lacks seriousness. The producers that have done the registration are disrespected, since those who have not met the deadline can still enjoy the same benefits.

It is important to highlight that such extension is not regarding the registration itself, since that is continuously open. What we mean is the extension of benefits foreseen by law, which are only available to those owners who do the registration within the established deadline.

Among the benefits there is the so-called “scale” for the Area of Permanente Protection (the smaller the property, the smaller the area near water bodies that needs to be preserved), amnesty to illegal deforestation before 2008 – which has its own legal regime under the Forest Code through the definition of consolidated areas. Only those who register within the deadline can enjoy those benefits.

What are the risks to Brazil’s image when there is such a piece of legislation under debate?

The Government has been marketing agro-production and new markets abroad as if the Forest Code were in full steam. So, such a proposal is contradictory.
This movement is seriously damaging to the image of a country that wants to build the idea of credibility and seriousness abroad in regards to sustainable production issues.

Five years after the signature of the new Forest Code, the Supreme Court has finally started discussions to set a trial date of four Direct Lawsuits for Unconstitutionality filed by the Federal Prosecutors and one Declaring Action for Constitutionality filed by the Progressive Party (PP).

How can the Supreme Court’s decision on the validity of the Forest Code affect the Code implementation?

There is some legal uncertainty as the Forest Code is under scrutiny, as it is happening now, and this will persist at least until the trial.

This means some groups related to agro-businesses may feel insecure to be more assertive towards regularizing its properties, such as investing in recuperation or compensation.

If the Supreme Court’s decision does not come fast, there may be a slowdown in the implementation of crucial parts of the Code, exactly when we needed to speed them up. The Forest Code Working Group defends the trial should happen as soon as possible. We really like the fact that the issue has been set in the Supreme Court’s agenda and we hope the decision will come in the future weeks.

In regards to ADIs, the group has not reached a consensus. Some understand the ideal would be not to change the Forest Code, since any changes can bring setbacks, they may also make the Code unviable, or the debate could return to Congress and culminate in an even worse piece of legislation. This is the argument of those against changes, meaning, against accepting ADIs. On the other hand, some understand there have already been many setbacks when the Code was approved, such as the loss of consolidated environmental rights and, therefore, some things should be reverted.

What are the main actions by the WG, considering the implementation of the Forest Code?

We are focused on the CAR validation process, the implementation of PRA and the Environmental Protection Quotas (CRAs), the transparency of information and preventing issues such as postponing CAR.

We play a central role in regards to CRAs, which is one of the options to compensate environmental obligations. If compared to buying or leasing some land for the compensation, CRAs could be a cheaper and operationally simpler solution.

CRA needs to be regulated so a specific market for this certification can be structured, driving the compensation of environmental obligations in Brazilian rural properties. We are working together with the Brazilian Forestry Service, the Observatory for the Forest Code and other partners to regulate this mechanism by the end of this year.

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