Brazilian Supreme Court Allows Landfills to Continue Operating in Permanent Preservation Areas and Compensation of Legal Reserves in the Same Biome

The Brazilian Supreme Court (Supremo Tribunal Federal - STF) has decided by majority vote that landfills being installed or already operating or expanding in Permanent Preservation Areas (Áreas de Preservação Permanente - APPs) can operate until the end of their useful lives as specified in their environmental licenses or concession contracts.

Background

The STF ruled in response to a motion of clarification filed by the Attorney General's Office (AGU) in Declaratory Action of Constitutionality (Ação Declaratória de Constitucionalidade - ADC) No. 42 and Direct Actions of Unconstitutionality (Ações Diretas de Inconstitucionalidade - ADIs) No. 4901, No. 4902, No. 4903 and No. 4937, all related to the validity of provisions in Federal Law 12.651/2012 (Forest Code).

Responding to a 2018 STF ruling that the presence of landfills in APPs was unconstitutional, the AGU argued that approximately 80% of Brazilian landfills are partially located in APPs; therefore, a sudden shutdown of these landfills could result in a return to illegal and environmentally harmful practices, such as the creation of garbage dumps. Justice Luiz Fux, the rapporteur of the cases, emphasized that the landfills in these areas must be gradually deactivated as solid waste treatment systems compatible with environmental preservation are implemented.

Requirements

The STF decision establishes that landfills must comply with the deadlines and terms of operation set forth in the environmental license, concession contract, or legislation that authorizes their operation. The decision also specifies that after a landfill’s closure it will not be necessary to remove the deposited material/solid waste before the landfill will be reforested, which will mitigate environmental degradation. Justices Edson Fachin, Cármen Lúcia, and Rosa Weber (who presented her vote in a virtual session prior to her retirement) were only in disagreement regarding the timeline, as they argued that landfill activities in APPs should cease within 36 months.

Clarification

Regarding environmental compensation for Legal Reserves (areas that are specially protected and mandatory in rural properties) located in the same biome, the STF unanimously accepted the AGU's motion of clarification to replace the term "ecological identity" with "biome," concluding that the term "ecological identity" lacks support in scientific literature and legislation and that there are no available geographical data for mapping areas of the same “ecological identity.”

The use of the term "biome" ensures the restoration of landfill areas that should have been preserved, and the environmental compensation measures outlined in the Forest Code can produce significant environmental benefits, such as the creation of ecological corridors that span federative units and even cross national borders.

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The Environmental, Climate Change, and ESG practice of Tauil & Chequer Advogados, associated with Mayer Brown, is available for further clarifications regarding this topic.