The Direct Action of Unconstitutionality 2,142 was filed before the Federal Supreme Court by the MDB with the objective of questioning the provision of the Constitution of the state of Ceará that provides for the approval by the State Council for the Environment of the technical opinion regarding the Environmental Impact Study (EIA) :
Art. 264. Any public or private work or activity, for which the State Environmental Superintendence – SEMACE, requires an Environmental Impact Study, must have the technical opinion appreciated by the State Environment Council – COEMA, with the publication of the resolution, approved or not, published in the Official State Gazette.
This wording was given by Constitutional Amendment 22, which was approved on December 14, 1991 and published in the Official Gazette of the state on December 21, 1991. Notwithstanding the matter can and even should be disciplined by law or even by infralegal normative act , like a decree, resolution or ordinance, in principle the wording does not seem to harbor any degree of unconstitutionality. After all, only the requirement of submission of the technical opinion of the environmental licensing subject to the EIA by the State Environment Council was established, a caution that would be justified by the fact that these are significantly polluting activities, which are those considered as the most degrading character.
This implies that in these cases the final stage of environmental licensing is no longer an act of the state environmental agency (in this case, Semace) to become an act of the State Council for the Environment, which is responsible for deliberating on the matter and publish a resolution approving or not granting the required environmental license. By instituting such a requirement, creating yet another instance of environmental control and increasing social transparency, it is evident that the state of Ceará acted within its political, legislative and administrative autonomy, in addition to having honored the principle of participation.
It so happens that the government of the state of Ceará, through the State Secretariat for the Environment and Semace, was trying to impose on the Municipalities the signing of a technical cooperation agreement for the decentralization of licensing, administrative sanctions and inspection of activities of local interest. predominant, trying to force them to comply with article 264 of the Constitution of the state of Ceará. Even Fortaleza, which is the capital of the State and one of the largest cities in the country, would have suffered such an onslaught.
The purpose of the ADI was to guarantee the compliant interpretation to restrict the application of the rule to the state level, as well as to ensure that the concurrent competence of the state in environmental matters does not have the power to exclude the municipal attribution with regard to matters of predominant local interest. Unanimously, the action was upheld and established the following thesis:
It is unconstitutional interpretation of art. 264 of the Constitution of the State of Ceará that results in the suppression of the competence of the Municipalities to regulate and execute the environmental licensing of activities and enterprises with local impact.
The core of the discussion is federalism, a form of State enshrined in the Federal Constitution of 1988. In the federation, the State is organized through entities endowed with administrative, legislative, political, budgetary and tax autonomy, which are grouped through a federative pact to form a central government. This means that there is no hierarchy between the federative entities, all are capable of exercising rights and contracting obligations, within, obviously, their constitutional limits.
From the point of view of the formation of the Brazilian State, the biggest novelty brought by the Federal Constitution of 1988 was the inclusion of municipalities as members of the federation, alongside the Union, the states and the Federal District. The municipality became part of the political organization of the country as a federative entity, starting to enjoy autonomy, as determined in the caput of article 1, the caput of article 18 and item “c” of item VII of article 34 of the Federal Constitution. .
With regard to the environment, the autonomy of the local entity is present through the recognition of its administrative and legislative competence to act in the area, according to items III, VI and VII and the sole paragraph of article 23 and items I and II of article 30 of the Basic Law. Complementary Law 140/2011, which established the rules for cooperation between federative entities in administrative actions arising from the exercise of common competence related to the protection of the environment, sought to specifically discipline the licensing competence of municipalities in item XII of article 9, which until then had no specific provision in federal law.
The STF decision in ADI 2,142, whose rapporteur was Minister Luís Roberto Barroso, reaffirms the status of municipalities as federative entities, reinforcing their administrative and legislative competence to deal with local environmental issues. When trying to cover the procedures carried out by the municipalities, not just taking care of the performance of state agencies, the unconstitutionality of the imposition of criteria and parameters for granting license/authorization and for the analysis of environmental studies is evident.
This understanding is similar to the judgment of ADI 6.602, when the STF declared the unconstitutionality of provisions of the Constitution of the state of São Paulo that imposed restrictions on local entities to modify the destination, purposes and objectives originating from allotments defined as green areas. Unanimously, the municipal leadership was recognized on the subject, which involved both Urban Law and Environmental Law.
As for the attempt to force the municipalities to sign administrative agreements, it is clear that this mechanism is very useful to resolve conflicts and to facilitate the exchange of information between environmental agencies, as well as to encourage municipalities to create the necessary structure to act in the environmental area. However, it should be noted that federative entities are free to adhere or not to such agreements, as well as to break with them at any time, since they have administrative autonomy. Furthermore, the municipalities have the original competence to take care of activities of predominant local interest, and can only receive, by agreement, the attributions that originate from the Union and the states.
This judgment is important because it demonstrates a tendency to be adopted in the interpretation of Complementary Law 140/2011, which provided for the environmental administrative competence by regulating items III, VI and VII of the caput and the sole paragraph of article 23 of the Federal Constitution of 1988. It cannot be forgotten that the judgment of ADI 4,757, whose objective is to declare the full unconstitutionality of this law (or at least of the following provisions, which were questioned with greater emphasis: article 4, V, VI, article 7, XII, XIV, “h” and sole paragraph, article 8, XIII and XIV, article 9, XIII and XIV, article 14, paragraphs 3 and 4, article 15, article 17, paragraphs 2 and 3, article 20 and article 21). This means that it is possible to foresee the Court’s understanding, at least with regard to the autonomy of local entities in terms of environmental administrative competence.
In the wake of the decision of ADI 6,288, also recent and unanimous, this decision reinforces municipal autonomy to act in the environmental field, whether in matters of inspection, administrative sanctions or environmental licensing. The difference is that ADI 2,142 also dealt with the affirmation of municipal legislative competence in environmental matters, having, therefore, an even broader scope.
There is no doubt about the original administrative competence of municipalities in environmental matters in activities of predominant local interest, and any rule that provides for the matter differently is unconstitutional. In view of this, the discussion to be held now concerns the material conditions for the exercise of these attributions, since the low degree of decentralization is one of the main gaps in the National Environmental Policy.