On January 24, 2022, Justice Ricardo Lewandowski of the Brazilian Supreme Court issued a decision granting an injunction to partially suspend the enforceability of specific provisions of Decree No. 10,935, published two weeks earlier.
The recent decree revoked its predecessor (Decree No. 99,556/90) to introduce new rules and guidelines for the protection of natural caves. The most significant of the new guidelines was provided by the now-suspended Article 4, which revoked the protection of underground caves considered to be of "maximum relevance." Pursuant to the new decree, irreversible impacts to such a cave would now be permitted, provided that the activity causing the impacts: (i) is of public utility; (ii) is licensed by the relevant environmental agency; (iii) cannot be implemented in alternative locations; and (iv) does not cause the extinction of species living in the cave; In addition, the interested party must be able to compensate for the impacts to that cave by protecting another, similar cave in the area.
Another suspended provision of the decree was Article 6, which provided for the possibility of installation and operation of activities impacting underground natural caves, regardless of the level of significance of the cave, provided that the ecological balance and physical integrity of the cave are maintained. Decree No. 99,556/90 had prohibited activities impacting caves considered to be of "maximum relevance."
According to Justice Lewandowski, due to being less stringent than provisions in the previous regulation, the suspended provisions violated fundamental principles such as human dignity, health and protection of the environment and cultural heritage. The Supreme Court is expected to vote on whether to maintain or revoke the decision of Justice Lewandowski in a future session, which is yet to be scheduled by the President of the Court, Luiz Fux.
Visit us at Tauil & Chequer
Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."
© Copyright 2020. Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
