Pervasive legal threats to protected areas in Brazil | Ana Alice Biedzicki De Marques


Brazil safeguards a vast network of parks and reserves, termed conservation units.

The creation of conservation units follows a rigorous legal protocol that grants themlong-term stability under varying degrees of formal protection against land usechange. Degazettement, downsizing, or downgrading any conservation unit requiresa law to be passed. Recent shifts in Brazilian conservation policy have, however,favoured infrastructure projects and agricultural land conversion, even when theseinitiatives are in direct conflict with established conservation units. Several bills havebeen proposed by the National Congress threatening 27 conservation units, bringingthe long-term political stability and legal immunity of hitherto sacrosanct existing25 reserves into serious question.

Brazil contains the largest tracts of native tropical vegetation, including over half ofthe world’s remaining tropical forests (FAO, 2013). Over the last three decades,however, those remnants have been rapidly converted into farmland and pasture(Gibbs et al., 2010). A large and complex system of protected areas has beengradually established to counteract the constant and ever increasing land conversioninto farmland, forestry, and mining enterprises. The complete protected areanetwork in Brazil includes indigenous lands, quilombola territories (Afro-Braziliancommunal lands) and various categories of parks and reserves managed by thestate or federal government, that are called ‘conservation units’. Law 9,985/2000established the National System of Conservation Units (SNUC) and consolidated theregulations for creating and managing protected areas in Brazil. The total area ofconservation units in Brazil increased three-fold from 785,536 km2 in 1990 to2,284,235 km2 in 2010 (IUCN & UNEP-WCMC, 2011), a remarkable 40 achievementalthough there is a strong bias towards sustainable-use reserves, rather than strictlyprotectedareas (Peres, 2011). These figures, however, mask the often insufficientde facto implementation status of these units and the growing political backlash bylobbyists and policy makers promoting (1) the erosion of formal managementrestrictions against anthropogenic activities within protected areas, (2) reductions insize, and in extreme cases (3) the complete legal annulment of existing reserves.The Brazilian Constitution demands that any change in a conservation unitthat reduces its degree of protection or redefines boundaries must be formallysanctioned by law, following the appropriate legislative process, i.e., it must pass thetwo-tiered system of the Brazilian National Congress (Chamber of Deputies andSenate). This paper examines the bills that passed or that are still underconsideration by the Congress to revoke currently existing protected areas, or toreduce their area and/or relax formal restrictions against extractive activities andpatterns of land use. We further identify the main political drivers of such proposalsand recent trends in public policy related to mounting contradictions between natureconservation and economic development throughout the country.We retrieved all federal bills that have been proposed up to July 2014regarding the creation, extirpation, resizing and reclassification of conservation units.

All affected areas are listed in Table 1 with site-specific information about attempts todowngrade or downsize established protected areas and the legislator's rationale tojustify such changes. Definitions largely follow those proposed by Mascia & Pailler(2011): downgrading is a reduction in the legal constraints to human activities;downsizing involves redrawing boundaries resulting in a net decrease in protectedarea size; and degazettement is the formal revocation of the original legal act thatcreated any given 65 protected area.

A total of 132 bills proposing the creation, degazettement or redesign ofprotected areas have been formally presented since 1949. Most of these, however,failed to pass through the National Congress, mainly because bills expire at the endof the legislature’s four-year term. We found 31 cases of federal PAs affected by 21bills in the current legislative proceedings, 27 of which argued for downgrading,downsizing, or degazettement and just four for either upgrading the status orexpanding the size of PAs (Figure 1). Most of these cases involve downsizing (17),whereas downgrading and degazzettement were proposed in only six and fourcases, respectively. Our assessment uncovered three main reasons for theproposed alterations: (1) planned development of infrastructure projects, such ashydroelectric dams and roads; (2) local demands to relax restrictions on land-useand/or natural resource use (including agriculture) or (3) conflicting interests from thewider private sector. In some cases, these sources of attrition result from de factocircumstances, such as environmental degradation and the resulting loss of thebasic management objectives governing the protected area. Such proposals areusually sponsored by congressmen on behalf of regional developers and localcommunities. The Executive branch is the author of any bills paving the way to anyproposed infrastructure development. Ten events have passed both legislativehouses and were formally sanctioned by the Brazil President, thereby rendering anychanges undermining the integrity of a given protected area irreversible.

The rapid increase in numbers of protected areas worldwide is frequentlyextolled in the conservation literature as a success story to be proud of, yet thecounter-current impact of legal attempts to downgrade, downsize or delist any givenprotected area is rarely discussed. Few comprehensive assessments exists (Mascia& Pailler, 2011, 2014), but an open database is now available 90 at Wildlife Fund, 2014). Another assessment comprising Brazilian Amazoniaidentified cases of downgrading, downsizing, or degazettement in seven indigenousterritories, plus 25 state and 16 federal conservation units that are threatened bylegislative proposals or pending a judicial process (Araújo & Barreto, 2010), and arecent paper listed 93 events of that nature across the whole country (Bernard et al.,2014).

Our assessment does not consider cases outside the federal governmentarena, because to do so would involve retrieving obscure data from the legislativechambers of 27 Brazilian states and 5,570 municipal counties. Nevertheless, federalreserves comprise 48.52% of all Brazilian conservation units, and 49.5% of their totalarea (Ministério do Meio Ambiente, 2014). The extent, patterns and causes of legalthreats to the network of protected areas in Brazil are still poorly understood. Billscan affect protected areas throughout the country and are strongly motivated by bothprivate and public drivers, to satisfy growing economic demands by localcommunities of both legally and illegally occupied protected areas or to implementlarge infrastructure projects. Infrastructure as a driver of downgrading, downsizing,and degazettement in the Amazon has been recently highlighted in at least twoopen-access reports (Araújo et al., 2012, Martins et al., 2012).

Although redesigning the boundaries of protected areas is arguably one wayof achieving better conservation outcomes (Fuller et al., 2010), we have found onlytwo cases from 27 in Brazil in which a reduction in area was offset by reserveexpansion elsewhere. Downsizing and downgrading are the standard outcomes ofbills passed by the National Congress and sanctioned by the Brazilian President.

Meanwhile, there is an alarming legislative countercurrent to the conservationmovement in that three constitutional amendment proposals 115 in the last decade aimto prevent high-ranking government officials from creating new protected areas byexecutive decree. As stated in these amendments, any new conservation unit wouldhave to be established by law, thereby requiring a legal proposal to pass theappropriate legislative branch, which significantly reduces the chances of legalapproval.

The Brazilian network of conservation units has increased at an averagepace of ~2 million ha/year in the 1980s to ~7 million ha/year during the last decade,with a marked prevalence of human-occupied sustainable use reserves over strictlyprotected areas that legally exclude local communities (Peres, 2011). Sustainableuse and strictly protected conservation units now represent 65.8% and 34.2% of thetotal area of conservation units, respectively (Ministério do Meio Ambiente, 2014).Competition between conservation and economic interests is uneven in the policyarenas, as can be observed in the case of the recent changes to the Brazilian ForestLaw (Law 12651/2012), the expected boost in the mining industry via new MiningCode (Bill 5807/2013), the opening-up of conservation units for mining activities (Bill3582/2012), and several new legal instruments from the Ministry of Environment toensure that infrastructure projects can be fast-tracked through a more simplifiedenvironmental licensing process. Mounting political pressure over protected areas,the well-intentioned but feeble responses from conservation organisations andacademia, and severe budget constraints of the National Parks administration, areserious drawbacks in conservation efforts. Added to this is the tendency todowngrade existing reserves to accommodate intensive land-use options ordownsizing to juxtapose otherwise overlapping energy, mining and infrastructuredevelopment. Moreover, the national and state forests, two major types ofsustainable-use reserve that encompass ~30 million hectares 140 in 104 protectedareas, are threatened by industrial “reduced impact” logging concessions, withseveral long-term leases (up to four decades). Bills cannot be sanctioned bymembers of parliament alone, as the executive branch can always ultimately usepresidential veto power to reject a proposal. Failure to veto such proposals indicatesspecial interests with governmental support, bringing the long-term political stabilityand legal immunity of hitherto sacrosanct existing reserves into serious question. Inour view, recent downgrading, downsizing, and degazettement proposals initiated bycongressmen or Brazil’s President are only the ‘tip of the iceberg’, and lobbying hassometimes changed the conservation status of state conservation units (Araújo etal., 2012, Martins et al., 2012, Bernard et al., 2014). At least the most zealoussection of Brazilian civil society including conservationists will need to be on full alertin the interest of nature conservation, the protection of ecosystem functioning andprovision of indispensable ecosystem services to take decisive steps to lobby infavour of PAs, and to counteract the ‘pro-development at any cost’ notion that Brazilhas already set aside too much protected land.


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Figure 1 – Geographic distribution of protected areas affected by bills enacted or under consideration by the Brazilian National Congress.

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