CAR: Better late than neverFriday May 16th, 2014
André Lima and Raul Valle
After two years of collecting by civil society, Federal Decree and Instruction of the Ministry of the Environment regulating the forest code have been published. Finally we have rules that allow society to demand that federal and state governments the effective beginning of the implementation of the new Forest Code, adopted almost two years ago. The Federal Decree 8235 of May 5, 2014 establishes general rules for the implementation of the Environmental Adjustment Programs by the states and the Federal District and recreates the Program More Environment as action from the federal government to support them in the implementation of the law. These programs should be implemented via Rural Environmental Register (CAR), which was regulated by IN 2/2014 MMA. Without prejudice to a more detailed analysis should be done then, first of all, we can state that:
1 – CAR by enrolls X CAR by rural property – We won the arm wrestling with the MAP and CNA regarding the ruralista demand for implementation of the CAR for property registration and not by rural property. Both the Decree, as to define IN CAR by property or rural possession. This aspect is important because the MAP demand service would mean amnesty over hundreds of thousands of hectares of forest liabilities. So this is an important point to celebrate. However, the regulation, as well as more flexible on other important aspectsthe environmental liabilities also falls short in relation to transparency.
2 – Expanded the concept of consolidated area , which will allow new legal deforestation in protected areas (Permanent Protection Areas and Legal Reserves). By joining, unduly the degraded area concepts (severely altered native area, which for recovery needs human intervention) and altered area (native area with some interference, but can regenerate alone), that by Decree 7830 / 12are distinct things, the decree equaled all forests with some kind of disturbance and pastures or crops. In practice, this rule is not reviewed, an owner can deforest a forest that has suffered fire at some point in your life ( as amended forest) and is less than 30 meters from the edge of a river, claiming that it is about “consolidated rural area,” supposedly in production, and that he therefore is entitled to keep only 20 meters APP (art.61-a of the Federal law 12651/12). The same can occur with forests located in buildings up to four fiscal modules, which are not obliged to recover the deforested legal reserve before 2008. If the producer has a previously disturbed forest area to 2008, he need not count it as your reservation legal and therefore do not need to keep it, because for the purposes of this decree forest and pasture are the same. It is a serious error that has to be changed.
3 – Ongoing recovery Commitments Review contrary STJ – The art.12 says that the terms of engagement for APP and RL recovery should be revised to incorporate the amnesties brought by the new law. This decree of the device contrary Supreme Court decision that has already signed understanding that these agreements are perfect legal acts and that the new law can not be retroactive to modify its terms. ( AgRg in AREsp 327 687 )
4 – relative transparency weakens CAR potential – Data on the ownership or possession of registered properties in the SICAR are not information considered publicnature (Article 12 of IN.) Which significantly limits the scope of the CAR as management and effective accountability tool of land holders for regular and sustainable use of rural properties. The CAR is a tool that makes the subject of management and rural environmental regulation and control of deforestation exit of the generality and virtuality (deforestation in the Amazon, in Para, or municipality A or B) and proceed to the effective accountability of holders and land owners in Brazil.
In addition, full transparency is effective condition for society to exercise permanent control over the effective implementation of environmental compliance programs. This is the big step that the CAR has to make towards the effective accountability for misuse of the land. In addition, the CAR is also a key tool for the implementation of public and private actions of economic incentives for the proper use of rural land. Therefore, information on the ownership of the areas is crucial.
Treatment as confidential information regarding the ownership of real estate as well as online access unviable by the company to data on those responsible for the use, conservation and / or recovery of Permanent Preservation Areas and Legal Reserves or restricted areas is a lock transparency, which significantly limits the scope and CAR’s potential as an effective management tool of government and society.
The appropriation of this tool (CAR) by society is a challenge to be conquered for social control to be effective and get results. What is the reason for omitting the data on land ownership and its relation to compliance with environmental function? There is no legal basis to justify failure to provide this information, it is important for effective accountability and mobilization of society for social control over the proper use of land and the protection of our forests. Unfortunately, IN is very limited in this aspect of transparency and social control. For example, society (through consumer and production chains) can promote campaigns and actions intended to compensate and reward good producers. However, if this information is not available in SICAR how to do it? This data should be accessible to every society since there is no legal justification for its omission in the System.
5 – Lack of governance mechanism and monitoringon the implementation of the Environmental Adjustment Programs (PRAs) in the states. Article 75 of the Forest Code provides that PRAs (including that provided by the Union) should include mechanisms for the monitoring of its implementation considering national goals and targets for forests, economic instruments, cadastral membership of the owners and possessors, the evolution of environmental regulation the degree of regularity of use of raw forest material and the control and prevention of forest fires. With the repeal of Decree 7029 which created in 2009 the Federal Program to Support the Environmental Regularization of rural properties (Program More Environment) was also revoked the figure of the Steering Committee of the Program, which was formed in addition to the ministries by organizations representing the sectors concerned.
6 – Lack of a national strategy for implementation of the Law– A program with the scope of the implementation of the Brazilian Forest Code, which came to be announced by the federal government as the largest environmental compliance program in the world, need to have a clear and robust strategy that not only involves the Rural Environmental Registration and an integration system of state registers (SICAR), but has a set of coordinated actions by the federal government on a strategy including: a) national targets for: i) CAR (ex .: 2015, 2017 and 2020), ii) restoration of APP and iii ) protection, compensation and restoration of RL; b) Infrastructure based on the goals necessary: i) human ii) physical and material, and iii) technology; c) Coordination Arrangement: i) Internal MMA, ii) Inter, iii) states, iv) with civil society v) private sector; d) official transparency mechanisms: i) periodic reports (semi-annual), ii) periodic seminars (annual), iii) independent audits (by state), iv) open module with geo-referenced information in SICAR, with publicity about the data??? on ownership of real estate; e) forecast of necessary and available financial support: i) the Union budget, ii) states, iii) partners, iv) Amazon Fund, v) Climate Fund, vi) compensation of large infrastructure works (Belo Monte, BR 163) vii) other; f) Economic incentives (Article 41): i) public and private loans, ii) tax incentives policy, iii) certification incentive mechanisms, iv) public procurement, v) PSA, vi) CRA, vii) Redd,. g) Strategy (PRA and CAR) in Federal i) settlements ii) Quilombos
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