The Federal Supreme Court, the highest court in the Brazilian Judiciary System, will judge next Wednesday (11) four petitions indicating that the Federal Law known as the Forestry Code is contrary to the provisions of Brazil’s Federal Constitution.

In practice, the law approved in 2012 provides that more than 29 million hectares deforested up to July 2008 are no longer required to be recovered, in addition to allowing a further 88 million hectares to be deforested – an area equivalent to Italy and France together in terms of size. However, Brazil’s Federal Constitution stipulates that “All people have the right to an ecologically balanced environment [...] whereby the government and the community are bound by the duty to defend and preserve it for current and future generations”.

The Forestry Code also changed the rules for the obligatory minimum environmental conservation area for each property. Furthermore, the law provides that the replanting of deforested areas does not need to take place in the same state(s) where deforestation occurred. Lawyer Carlos Marés, who is a member of the Board of Terra de Direitos, explains that this is a problem.  Owing to its size, Brazil has regions with different forms of vegetation, and recovering an area different to the deforested one will not help to preserve the animals and plants living in its biome. Up to half of each conservation reserve can also have up to 50% of its space occupied by exotic plants, i.e. plants that are not native to that location. The lawyer questions this.  “The Federal Constitution states that biodiversity must be preserved. That can only be done with native species”, he says. 

The law is also criticized for the financialization of nature, given that environmental conservation has become the object of monetary worth, such as through Payment for Environmental Services (Pagamento por Serviços Ambientais). An example of this is the creation of compensation mechanisms, such as Carbon Credits and Environmental Reserve Quotas (Cotas de Reservas Ambientais), which allows the purchase of another vegetated area in the same biome in order to compensate for unlawful deforestation or degradation of the statutory reserve. Even if these areas are unproductive, under this system they are considered as being productive. As such, provided they do not fulfil their social and environmental function – as provided for by the Federal Constitution–, land purchased under the Quota system cannot be used for the purposes of agrarian reform.

Judgement of the petitions

The petitions were filed by the Attorney General’s Office (the body which represents the country legally) and by the Socialism and Freedom Political Party (Partido Socialismo e Liberdade – PSOL). Terra de Direitos is one of the organizations acting as Amicus Curiae in the case, i.e., an entity that contributes with additional arguments that may assist the decision of the Supreme Court Justices. As well as providing the Justices with studies on the impacts of the law, Terra de Direitos and other organizations which are also Amicus Curiae were represented in court by lawyer Marés. On September 15th, when voting began at the Supreme Court, Marés explained to the Justices the problems associated with the Forestry Code.

Judgement was adjourned on that day and is expected to continue on October 11.