On 28 February 2018, Brazil’s Federal Supreme Court upheld the 2012 Forest Code as constitutional, including the Forest Code’s amnesty for landowners that illegally cleared forest before 22 July 2008.
Under Brazil’s Forest Code, landowners have to keep a percentage of their land forested. The percentage varies from 20% in some parts of the country to 80% in the Amazon.
The Federal Supreme Court’s ruling upholds the 2012 Forest Code’s relaxing of that part of the law. Landowners will not have to pay fines for illegal clearings, or replant areas that were illegally cleared.
The Federal Prosecutors Office had argued that the amnesty was unconstitutional because it violated the constitutional rule for protecting the environment. The Supreme Court voted to reject 18 of 23 charges of “unconstitutionality” brought against the 2012 Forest Code.
Writing in Mongabay, Sue Branford summarises some of the other decisions of the Court, in addition to the amnesty:
The ruling also makes it constitutional to reduce the size of the Legal Reserve in states or municipalities largely occupied by indigenous reserves or protected areas.
In addition, the decision permits the reduction in size of Areas of Permanent Protection (APAs), even though these are considered by many environmentalists as fundamental for maintaining water supplies and preventing climate disasters like floods and mudslides. The high court’s ruling also makes it constitutional for farmers who illegally cleared APAs to get authorization to clear more land, and allows farming activities on steep slopes (over 45 degree angles) and on hilltops.
Branford argues that the 2012 Forest Code is weaker in terms of protecting the environment than the 1965 Forest Code created under Brazil’s military dictatorship.
A 2014 study in Science calculated that the 2012 Forest Code reduces the area of land that would have had to be restored by 29 million hectares. The changes in the law created an amnesty for “small” landowners, ranging in size from 20 hectares in southern Brazil to 440 hectares in the Amazon. Under the 2012 Forest Code, 90% of Brazilian rural properties qualify for the amnesty.
Before Brazil passed the Forest Code in 2012, James Leape, then-WWF’s Director General, described the proposed changes to the Forest Code as a “true conservation crisis”. He said that,
“This is legislation that would allow land-owners to clear much more of the forest, and would give amnesty to those who had illegally cleared forest before. All told, 70 million hectares of forest could be lost.”
Márcio Santilli, one of the founders of the NGO Instituto Socioambiental, told Mongabay, that,
“The corrections made by the Supreme Court will not be sufficient to reverse the momentum given to deforestation as a result of the weakening of the law.”
And Nurit Bensusan, policy coordinator at Institut Socioambiental told Reuters that,
“This awards the guy who deforested, awards the guy who disobeyed the law.
“With this amnesty you create a climate that invites deforestation in the future. It creates the impression that if you deforest today, tomorrow you’ll be handed amnesty.”
Agribusiness in favour
Brazil’s agribusiness lobby, the bancada ruralista, lobbied hard for the 2012 Forest Code, and is predictably in favour the amnesty for landowners who illegally cleared land in the past.
Rodrigo Lima, director of the agriculture consulting firm Agoicone, argues that the Supreme Court decision brings legal certainty to rural landowners by forgiving penalties for deforestation before 2008, as long as landowners comply with the 2012 Forest Code.
Lima told Reuters that,
“If this apparatus had been struck down, for example…everyone who submits information on the rural land registry could be fined at any moment even as they are complying with the (current) law.”
At least one environmentalist is also in favour
Dan Nepstad is a tropical ecologist who has worked in the Brazilian Amazon for more than 30 years. He’s published more than 160 papers and books based on his research. In 2013, he founded the San Francisco-based Earth Innovation Institute.
In a recent post on the Earth Innovation Institute website, Nepstad argues that the Supreme Court decision “will enhance forest conservation in Brazil, not diminish it”.
The core question is this: is it better to have a “perfect” law that is virtually impossible to implement, or an “effective” law? With the revisions of 2012, the Forest Code can now be a far more effective law. It is being implemented at scale and remains, by far, the most ambitious forest conservation law for private land in the world. To undo the 2012 Forest Code would open up a Pandora’s box of conflict and polarization that would threaten the important progress that has been made in implementing the revised Code.
This is a strange argument. Nepstad seems to be arguing in favour of a much weaker law because it will be easier to implement.
Nepstad’s enthusiasm for the 2012 Forest Code is largely based a provision for developing ecosystem service markets to drive reforestation – article 41 of the Forest Code. Nepstad writes,
Brazilian farmers need recognition and help to make sure the New Forest Code works. With Article 41 put into practice, they could finally receive the positive incentives they have been waiting for to conserve more private-land forest than anyone in the world.
Nepstad’s optimism is difficult to understand. He seems to be overlooking the fact that deforestation in Brazil has increased since the 2012 Forest Code was passed. And while deforestation fell by 16% in 2017, it still amounted to 662,400 hectares of forest destroyed.
Large areas of the Brazilian Amazon are facing drought conditions. In September 2017, there were record numbers of fires in Brazil. In 2018, deforestation is expected to increase once again. The reality is that the Supreme Court’s ruling is likely to increase the rate of deforestation, by rewarding farmers who illegally cleared forest in the past.