STF rejects assessing the merits of Bolsonaro's action against Ibama's understanding

The plenary of the Federal Supreme Court (STF) rejected the processing of Direct Action of Unconstitutionality (ADI) 6446, in which former president Jair Bolsonaro questioned provisions of the Forest Code (Law 12.651/2012) and the Atlantic Forest Law (Law 11.428 /2006).

In the action presented by the Attorney General's Office (AGU), Bolsonaro sought to reinterpret the two laws to allow the application of the environmental regime for consolidated areas, as defined in the Forest Code, to permanent preservation areas (APPs) of the Atlantic Forest. The former president argued that this regime would allow the economic activities of several families to continue, as long as the adequate restoration of these areas was carried out.

The rapporteur of the action, minister Luiz Fux, voted not to admit the action. Fux highlighted that it is not up to the STF to "dissect" the applicability of the law. He stated that the ADI is not the appropriate means to discuss the practical application of the law, especially when this involves the interpretation of other infra-constitutional norms.

Fux also argued that, if the STF accepted the analysis of the request, it would be opening space for the re-discussion of any new interpretation of a provision already declared constitutional, which contradicts the role of the Supreme Court and could generate legal instability.

The action had been filed in June 2020. The former president maintained that the Ministry of the Environment made binding the interpretation that the constitutionality judgment of 61-A and 61-B of the Forest Code apply to areas that are not subject to the protective measures of Law 11.428/2006, even if inserted in the geographic space of the Atlantic Forest.

He claimed that the exclusion of any and all areas of the Atlantic Forest from the consolidated areas regime provided for in the Forest Code could cause a “profound productive setback” in sectors such as coffee growing, wine growing, pomiculture and banana farming. He cited a note from Embrapa which points out that "the hypothetical restriction of agricultural production in consolidated high-altitude areas of the Atlantic Forest biome would directly affect more than 200 thousand farmers, of which more than 180 thousand are small (less than four fiscal modules)".

Embrapa's note also says: "from an economic point of view, there would be a decline in diversified and sustainable agricultural activity, affecting several production chains such as coffee, dairy and beef cattle farming, fruit growing (apple, grapes...) and horticulture . [...] In the case of coffee, this would represent the elimination of more than 30% of coffee in Minas Gerais alone. [...] In the case of apples, 85% of Brazilian production is grown in the municipalities involved, which together moved a value of around 1,4 billion reais. This economic loss would immediately be reflected in dozens of small and medium-sized cities in the region and its surroundings, causing unemployment, reduction in the service sector and rural urban impoverishment".

Therefore, he asked the STF to exclude from the legal system an interpretation of laws that prevent the application of the environmental regime for consolidated areas provided for in the Forest Code to permanent preservation areas within the Atlantic Forest biome.

From a legal point of view, an appeal called Embargoes de Clarification could be appropriate. But its interposition depends on the determination of the current president (Lula).

The technical note can be read at the link below...