by Luciana Gonçalves Bassani
December 01, 2003
Publicity of administrative decisions is one of the most important principles of a democratic state: the fundamental guarantee of receiving information of individual or collective interest from public agencies falls to the duty of the Public Administration to give public notice of its acts (art. 5 (XXXIII) and art. 37 of the Federal Constitution, respectively).
As far as environmental law is concerned, publicity is a constitutional requirement of the Environmental Impact Assessment, upon commencing any work or activity that may cause significant environmental harm. Resolution no. 01/86 of CONAMA (Conselho Nacional do Meio Ambiente = National Environmental Council), in dealing with the publicity of the "RIMA" (Relatório de Impacto Ambiental = Environmental Impact Report), which reflects the conclusions of the "EIA" (Estudo de Impacto Ambiental = Environmental Impact Assessment), establishes the possibility of holding a public hearing for information about the project, and discussion of its environmental impact by public agencies and other interested parties.
The public hearing ensures knowledge of the contents of the EIA – RIMA, inviting the community to make suggestions and give opinions regarding the proposed project, supporting the decisions made by the environmental agencies and safeguarding the effective control of such administrative decisions, as one of the best practical examples of applying the publicity principle. From the point of view of the undertaker of the operation, the public hearing enables him/her to make clarifications regarding the impact caused by the activity, and the respective mitigating and compensatory measures to be taken to minimize them, heeding the principle of the social function of property, which demands the environmentally adequate use of the means of production.
CONAMA Resolution no. 9, dated December 3rd, 1987, establishes the basic guidelines for holding a public hearing, which has the purpose of "…exposing to the interested parties the contents of the product under analysis and of its RIMA, answering questions and collecting opinions and suggestions from those present" (art. 1). Regarding the call to hold the public hearing, such may be requested by force of law, or by petition (i) of a civil entity; (ii) of the Public Prosecution Service; or (iii) of 50 or more citizens (art. 2). The environmental agency, by means of a public notice or announcement in the local press, will commence a 45-day time limit from the date of receipt of the RIMA for interested parties to request that a public hearing be held. If the environmental agency does not hold a public hearing once it has been requested, any license granted shall be invalid.
In order to guarantee its advisory function and the effective participation of interested parties, the public hearing shall be held at an accessible place. Due to the complexity of the activity, there could be more than one public hearing on the same project and the respective RIMA. At any rate, minutes shall be drawn up at the end of each public hearing, to which the documents produced or delivered during the procedure shall be attached. These will serve as a basis, together with the RIMA, for analysis and final decision by the licensing agency regarding approval or rejection of the project.
The public hearing established by CONAMA Resolution no. 9/87 is a procedure foreseen by environmental licensing which requires the EIA – RIMA, i.e, within the context of licensing activities that may cause significant environmental harm. However, nothing prevents a public hearing from being called and held by the Public Prosecution Service for activities that are located in areas of environmental sensitivity, even if they do not represent a significant harm to the environment and are thus not required to present the EIA – RIMA. Interested parties are to be present to make all necessary clarifications about the licensed activities. This procedure, outside the context of CONAMA Resolution no. 9/87, clarifies any questions from the communities located in the areas embraced by the activities, and supports the environmental agency, when the information thereby generated is incorporated into the environmental licensing procedure as one more element of analysis for the granting or not of the environmental licenses. This broadly meets the constitutional principles of publicity and preservation of the environment in a participatory and democratic way.