PRAs: lack legal support?Tuesday May 6th, 2014
May 6, 2014
João de Deus Medeiros *
After the intensive process of legislative revision of the Forest Code on May 28, 2012 the Union Official Gazette published Law No. 12,651, providing for the protection of native vegetation. This rule repealed the law No. 4771 of 1965, the now former “New Forest Code.” Its approval in Congress took place in a tense atmosphere, often translated by reductionist environmentalists x ruralistas polarization.
Without going into the merits of the arguments used, the fact is that the adoption of the law 12 651 represented the possible pact that scenario, and predictably not fully pleased either party. Nevertheless, if we adopt the understanding of the philosopher Charles Frankel that defines responsibility as the product of definite social arrangements, it is clear that this possible arrangement, translated by passage of the law 12,651, imposes responsibilities to stakeholders, and as a rule, such arrangements create, somehow coercion. Understanding coercion as the act to induce or compel someone to do something.
At the origin of the conflicts that emerged during the legislative process to revise the Forest Code, the complacent and widespread non-compliance with the legal standard as a key element. The previous law (Law 4771) created administrative restrictions on the right of ownership, establishing the permanent preservation area figures (APP) and legal reserve (RL). Driven by the strong patrimonial connotations that permeates our society, coercion created by the Law 4771 was solemnly neglected, not generating the desired accountability. In a scenario where much of the owners of rural and urban land was in an irregular situation, the collection of adjustment to legal terms was shown feasible, legitimizing and thus boosting the said review process.
The solution found by the National Congress was to maintain the essence of the APP and RL institutes, albeit with some changes, and create a chapter of transitional provisions, aiming to shelter him an alternative route for the induction of regulation of environmental liabilities created by the failure to comply with old standard. Even the target of considerable criticism, conveyed symbolically as amnesty to loggers, the fact is that these transitional provisions still contained, in some degree, coercion: the law requires, especially in the case of APP, some investment in rebuilding areas converted irregularly. These requirements are listed in Article 61-A of Law 12,651.
As a product of this new social arrangement, so the law imposes responsibilities to citizens and the state. Particularly the federal government, the states and the Federal District were compelled to, within one year, counted from the date of publication of the law (in the case May 28, 2012), which may be extended only once for an equal period, act of the Chief Executive, deploy Environmental Adjustment Programs – PRAs possessions and farms, in order to adapt them to the terms of this Chapter. This is the provision expressly contained in Article 59 of the law. The chapter referred to that article is exactly Chapter XIII, which deals with the “Transitional Provisions”. And here we begin to re-edit the conflicts that led to the review process of the old law, ie its failure.
The most serious, in this case, is that the irresponsibility for the implementation of the new produced pact gives the government itself, to whom the Federal Constitution, our greatest pact imposes obedience to legality and efficiency, among others (Art. 37 of the Constitution ).
The PRAs referred to in Article 59 were not deployed. The statutory period granted to Federal, State and Federal District, expired on 28 May 2013. There was, by the President (Chief Executive) act of editing that it extend, for another year, that period. The legal text has not granted the prerogative, he determined, compelled the Federal, State and Federal District to do so. Not deploy PRAs sets therefore illegal. What result? Strictly speaking, however absurd it may seem, the penalty for breach of the rule in this case lies with the administered. And this edition again the ancient Roman dilemma wanted custodes ipsos custodes? (Who supervises the tax?).
Approaching the second anniversary of the law 12,651 the Executive Branch Federal edit Decree No. 8235, establishing additional general rules to the Environmental Regularization programs of states and the Federal District – PRA, referred to in Decree 7830 of 17 October 2012, and establishing the Program More Environment Brazil. A quick analysis of this Decree necessarily refer to two basic questions: 1. Did the same the necessary legal basis, considering that the legal term for the implementation of these programs has expired on May 28, 2013?
2. Effectively that program meets the requirements of Art. 59 of Law 12,651?
I understand that the extrapolation of time undermines the legality of Decree 8235. The art of the text. 13 of the Decree, by instituting the Program More Environment Brazil, aiming to support, coordinate and integrate the Environmental Regularization programs of states and the Federal District, even saying that is in compliance with the provisions of art. 59 of Law 12,651, 2012, in essence contradicts it.
Art. 59 of Law 12,651 is pretty straightforward and self applicable, and it determines the Union, the states and the Federal District shall, within one (1) year from the date of publication of this law may be extended only once , for the same period, by an act of the Chief Executive, deploy Environmental Adjustment Programs – PRAs possessions and farms, in order to adapt them to the terms of this Chapter. As soon as the remit of the Union PRA goal support, coordination and integration of PRAs states and the Federal District, the Decree 8235 amends the express purpose of Article 59, thus leaving to serve you.
In saying that down additional general rules to the Environmental Regularization programs of states and the Federal District – PRA, once again we face the objective breach of the law. The law established that the regulation of PRAs, the Union would establish, within 180 (one hundred eighty) days from the date of publication of the Law, of general rules, if charged it to the states and the Federal District detailing through editing of specific character standards, due to its territorial peculiarities, climatic, historical, cultural, economic and social, as provided in art. 24 of the Federal Constitution. In addition to these general rules were issued through Decree No. 7,830, of October 17, 2012, so within the prescribed statutory period of 180 days.
If the legal deadline for implementation of PRAs by federal, state and DF overstepped, how effective this supplement general rules on programs which, in theory, no longer find the legal support necessary?
By failing to observe the legal standard, federal, state and Federal District, eliminated the possibility of regularization based on the transitional provisions of the law, and thus the requirements of Article 61-A can no longer be applied to mark the requirements for restoring APP . That’s because they had an expiration date set, which, as shown, expired in May 2013. There is also talk about because avoidance of the law, for this, in Chapter II, which deals with the areas of permanent preservation, clearly defines the limits of the different APPs, as well as its use regime, determining that have occurred suppression of vegetation located in Permanent Preservation area, the owner of the area, owner or occupant under any title is bound to promote the recovery of vegetation, except the authorized uses provided for in the Act. Such an obligation, says the law has real nature and is passed to the successor in the field of transfer case or possession of rural property (Art. 7). Thus, if we assume that the principle of legality effectively imposes any liability, the government charged the recovery of vegetation in APP suppressed irregularly. Nevertheless, she, public administration, has no support to make such a requirement does not comply with the minimum limits of APP established in Article 4 of Law 12,651. In other words, the social arrangement that could generate a healthy process of regularization of liabilities, and therefore strengthen the legal basis for charging for maintaining the integrity of APPs, was broken by government inaction, particularly the irresponsibility of the Union which did not provide the Environmental Registry Rural (CAR), not implemented PRA, and not issued extending the term act for it (EU) states and the Federal District had the proper legal support to deploy them. Therefore, Decree 8235 of 2014 only be justified if it were to pass this general approach, which is to promote the settlement of liabilities based on the permanent provisions of the law 12,651, and no longer within the limits defined in Chapter XIII of the Transitory Provisions. The way Decree 8235 has shown efficacy zero or at least highly questionable. which is to promote the settlement of liabilities based on the permanent provisions of the law 12,651, and no longer within the limits defined in Chapter XIII of the Transitory Provisions. The way Decree 8235 has shown efficacy zero or at least highly questionable. which is to promote the settlement of liabilities based on the permanent provisions of the law 12,651, and no longer within the limits defined in Chapter XIII of the Transitory Provisions. The way Decree 8235 has shown efficacy zero or at least highly questionable.
* Associate Professor , Department of Botany, Federal University of Santa Catarina