Bill proposes exemption from environmental licensing for dredging and may impact ports; experts weigh in

Approved law provides exemption from new licensing for dredging services, which are routine in ports such as Santos (Alexsander Ferraz/AT)

Maintenance dredging in ports may be exempt from environmental licensing. This is what is proposed by the bill that establishes the General Environmental Licensing Law (2.159/2021), approved with amendments by the Senate at the end of last month and sent back to the Chamber of Deputies. The service, also carried out at the Port of Santos, aims to prevent silting and maintain the navigability of the navigation channel.

"I see the licensing exemption provided in the bill as a step forward in reducing bureaucracy and as necessary for the sector, but, at the same time, without clearly defining the rules of the game, the approved bill may generate controversy given the existence of other regulations already addressing the topic", says Maria Cristina Gontijo, an attorney specializing in Environmental, Maritime, and Port Law.

The current model follows the provisions of the National Environmental Council (Conama) Resolution 454/2012, among other regulations. “They aim not only to ensure oversight of activities for the protection of the environment and public health, but also navigation safety, such as the Norms of the Maritime Authority (Normans). An important aspect of the current model is the requirement for an environmental monitoring program for the dredged sediments”, the attorney explains.

Comparing it to other activities exempt from licensing — such as emergency works or interventions in cases of public calamity, and urgent ones aimed at preventing environmental damage — the exemption would be conditional upon submitting a report to the competent environmental authority, according to the bill's text.

“This point is interesting, as maintenance dredging, in fact, does not require the same instruments applicable to new deepening dredging operations, but it also cannot go unmonitored”, she notes.

Therefore, initially, Maria Cristina highlights the concern over the legal uncertainty that may arise from a provision that merely states that “maintenance dredging is exempt from licensing”, considering the many existing regulations on the subject that will remain in force.

“How will the control of the dredged material be carried out? Reducing bureaucracy does not mean eliminating oversight, which is an obligation of both individuals and the State under Article 225 of the Federal Constitution (Everyone has the right to an ecologically balanced environment, a public good for the people and essential to a healthy quality of life, and both the government and society have the duty to defend and preserve it for present and future generations)”, she asks.

Other works Attorney Maria Cristina Gontijo points out that lawmakers need to consider that each sector has its specificities, taking into account other projects involving various port facilities, from IP4 (small-scale), through Private Use Terminals (TUPs), to the organized port as a whole, such as the Santos complex.

“To provide legal certainty, it is necessary to delve into the existing legal provisions so that we do not fall into a new tangle of regulations that, while intending to reduce bureaucracy, continue to propagate the legal uncertainty that has been so combated and discussed in sector forums”, she says.

Another point highlighted by the attorney is the need to increase the staffing of licensing agencies, as well as training to operate in sectors like the port industry. “It’s not enough to have legislation advocating efficiency if, in practice, the licensing process is carried out the same way, without modernization tools and without a minimum number of trained staff”, she observes.

What it is Debated since 2004, the General Environmental Licensing Law aims primarily to standardize and establish clear rules for the issuance of environmental licenses across the national territory, and to simplify the licensing process for low-impact projects. In practice, the objective of Bill (PL) 2.159/2021 was to codify a number of Conama norms, ordinances, and other acts from federal and some state-level licensing practices.

Environmentalists fear harm to ecosystems Environmentalists are concerned about the new General Environmental Licensing Law. Leandra Gonçalves, a teacher at the Instituto do Mar of the Universidade Federal do Estado de São Paulo (Unifesp), believes the Senate version made the text worse. “They introduced changes that, in fact, deregulate the licensing process, which was already quite weakened”, she says.

Regarding the port sector, Leandra considers it a matter of perspective whether the law is beneficial or not. “It’s good for the economic sector because it may accelerate licensing processes and reduce costs and deadlines for new port developments. That interests investors and logistics operators”, she notes.

From a socio-environmental perspective, the teacher says it is detrimental. “Ports are high-impact developments, and with more flexible rules, there's a risk of approval without adequate studies on cumulative impacts, marine pollution, loss of coastal habitats, and conflicts with traditional communities, such as fishermen”, she argues.

An additional concern, according to Leandra, is that the law does not specifically address impacts on the ocean. “This is problematic for activities such as dredging, port expansion, and the handling of hazardous cargo”, she warns.

Harm and division Fernando Rei, teacher in the International Environmental Law Doctoral Program at Universidade Católica de Santos (UniSantos), argues that it would be highly detrimental to the marine biome if dredging were no longer overseen by an environmental authority.

“Considering the impacts it causes not only in the estuary but also in the basin, it naturally requires monitoring and constant technical and scientific studies and updates”, he explains.

The professor notes that the law reinforces the existing division and polarity in the debate between economic development and environmental protection. “In the legislative process now in the Chamber, it’s essential to eliminate some excesses so that the law truly serves the country’s international commitments and not merely certain specific interests that are strongly represented in Congress, such as mining, agribusiness, and oil exploration”, he says.

APS says reducing impacts is a goal In a statement, the Santos Port Authority (APS) states that maintenance dredging at the Port of Santos holds a valid environmental license, issued by the Brazilian Institute of Environment and Renewable Natural Resources (Ibama), effective until 2032.

“With regard to environmental licenses for other works, it is important to emphasize the ESG commitment of the Santos Port Authority, which is even included in its strategic planning”, the statement reads.

The agency adds that, regardless of requirements imposed by oversight bodies, it is APS’s goal to monitor and minimize the impact of port activities on climate change, promote energy efficiency policies and the adoption of new energy sources, and implement climate adaptation measures.

In addition, goals include preventing and mitigating water and ocean pollution, protecting ecosystems and biodiversity, promoting the sustainable use of natural resources, and establishing practices and processes that allow an organization to systematically control, manage, and improve its environmental performance — minimizing the environmental impact of its activities, products, or services, in line with its environmental policy and applicable legal and regulatory requirements.

“These objectives are fundamental for the continued viability of life on this planet, for both humans and other species, so APS will not forgo establishing the highest sustainability standards in the implementation of public infrastructure at the Port of Santos”, the statement concludes.

Awaiting Regarding the potential changes to environmental legislation, the Port Authority states that any evaluation is still preliminary, as the legislative debate is ongoing. “What can be stated is that, whatever the form of the law, APS will comply with what is established”, the note concludes.