Brazilian Supreme Court Suspends Parts of Decree No. 10,935/2022, Which Regulates Protection of Natural Caves

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.