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Is the environmental policies procedures a barrier to development of inland navigation and port management? A case of study in Brazil
Transportation Research Part A 47 (2013) 78–86
Contents lists available at SciVerse ScienceDirect
Transportation Research Part A journal homepage: www.elsevier.com/locate/tra
Is the environmental policies procedures a barrier to development of inland navigation and port management? A case of study in Brazil Ilza Machado Kaiser a, Barbara Stolte Bezerra a,⇑, Leslie Ivana Serino Castro b a b
UNESP - Univ Estadual Paulista, Faculdade de Engenharia de Bauru, Departamento de Engenharia Civil, Brazil UNESP - Univ Estadual Paulista, Faculdade de Agronomia de Botucatu, Brazil
a r t i c l e
i n f o
Article history: Received 31 July 2012 Accepted 9 October 2012
Keywords: Environment legislation Port Inland navigation Port installation Environmental permitting
a b s t r a c t The main objective of this article is to discuss the Brazilian environmental legislation and policies towards the development of navigation and port management. The research illustrated some difficulties faced by the country and make suggestions to overcome it. The construction of the environmental legal framework began in the early 1960s and resulted in a very complex system, as a consequence of policies adopted by the country. Nowadays Brazilian environmental policies are developed in democratic and participative way, although with elevated degree of bureaucracy and lack of integration among the several governmental agencies, which makes the approval of environmental certifications demand several years for new port projects or improvements, which delays the economic development of the country. Efforts have been made to simplify the licensing process. As result of this research two flowchart for environmental licenses of ports installation are shown: The first shows the process until 2009 and the second shows the process nowadays. This become an important issue due the fact that inland navigation is one of the less pollutant modes of transportation, and although, the process of environmental certification was simplified, if compare with 2009, it is still complex and time-consuming, delaying the development of the infrastructure. Ó 2012 Elsevier Ltd. All rights reserved.
1. Introduction The environmental issue today reflects a new ethic on the survival of humans and other species of organisms of the biosphere. This new ethic should cause changes in the global economy, suggesting a process that passes through knowledge, technology and infrastructure, and by various means of environmental and social development enabling the achievements of environmental sustainability. The concept of environmental sustainability introduced in the late twentieth century is still being built in a gradual way in the design of transportation engineering and management practices, since it involves cultural changes, conflicts management, political alliances, economic development stage, generation and dissemination of knowledge, technological development among others. The implementation and operation of port terminals involve many activities that interfere with the environmental aspects such as occupation of permanent preservation areas (PPAs), dredging and overthrow in water bodies, waste collection from ships, water quality, others not listed here.
⇑ Corresponding author. E-mail addresses: [email protected] (I.M. Kaiser), [email protected] (B.S. Bezerra), [email protected] (L.I.S. Castro). 0965-8564/$ - see front matter Ó 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.tra.2012.10.025
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Brazilian ports are outdated and in the limit of their capacity. The current economic policy established goals for increasing foreign trade so there is an urgent demand for ports and transport improvements such as: access roads, dredging projects, expansion of port facilities, and they are paralyzed due the slow process of getting environmental permitting. Only one port from 11 that are on the federal government agenda to receive financial resources to their improvements obtained environmental permits. The legal framework governing the port sector was built on following the international, federal, state and municipal laws, incorporated at various times, resulting in a ‘‘patchwork’’, and involves various government agencies in different areas, with conflicting views on issues of economic, social and environmental development. To exacerbate the situation, government agencies involved have a chronic shortage of quantitative qualified personnel and lack of infrastructure to meet demand. All this conspires to increase the complexity of the environmental permitting (Kitzman and Asmus, 2006). Finally, to illustrate the complexity of environmental permitting process and its evolution, two flowcharts demonstrating the Environmental Permitting (EP) of waterway port facility are presented. The first flowchart shows the procedures for obtaining the EP until 2009, the second flowchart shows the current procedures obtain the EP, although it had been simplified, it is still lengthy, complex and disarticulated. 2. Development of ports and navigation and their interface with Brazilian environmental policy A brief description of the development of maritime and waterways navigation and the Brazilian environmental legislation is done hereafter. 2.1. Maritime navigation Brazil has a coastline of approximately 8000 km, has 17 states bordering the sea and 14 states capitals located in the coast. Throughout its history, Brazil has been a major producer and exporter of raw materials and its economy depended on the port structures. For too long the development of the country remained close to the shore, and in the early colonization the connection between the small clusters was only possible by coastal shipping. By the territorial dimensions and urban areas location, coastal shipping is presented as an alternative to redistribution of goods in the country, but the transport matrix adopted, the result of policy options and planning carried out during the last century in various historical moments, has been in favor of road. The coastal shipping has gone through periods of flowering and abandonment. (Moreno, 2006). The port administration in Brazil can be divided into three phases (Goularti Filho, 2007): Up to 1934 – called the implementation period – as the regions were being organized port structures were implanted to meet the demands of cargo for export locally or regionally, creating a wide range of administrative formats. From 1934 until 1990 – consolidation period. A central state agency was created for manage, standardize and plan the port sector and waterway transportation. In this period this agency has been redesigned with changes in name and structure, and the sector has gone through periods of investment and abandonment. From 1990 – the adoption of neoliberal policies led to the extinction of this centralized state agency and the proposition of the Port Modernization Law, which was approved and implemented in subsequent years. Their conduct and their implementation had been problematic and slow due to lack of political consensus and conflict of interest in the privatization process (operation by concession). However, the need to modernize the ports in Brazil was visible. Several authors suggest efficiencies in the new model of port management, which has caused profound changes in the administration and labor organization. 2.2. Inland navigation The country also has an extensive river system, with a potential of 50,000 km waterway. But so far the country has 20.000 km of navigable stretches as shown in Fig. 1, it is necessary to make improvements to extend these sections. Brazilian south and southeast region has two important inland navigation corridors. One consisting of the Jacuí, Taquari and Pelotas rivers that allow the flow of agricultural production in the southernmost Brazilian states; linking to export via the seaport of Rio Grande. The other corridor, much broader, which drains a significant amount of grain produced in the central region is composed by Uruguay, Paraguay, Parana and Tiete rivers and allows the connection with the Southern Cone countries, Argentina and Uruguay flowing into Prata River estuary. This interconnection is compromised by the absence of locks or ships elevators at Itaipu dam, built in the decade of 1970–1980. Due to the high cost of transshipment at this place, the option is to export the cargo through Santos Port, so the cargo navigates by Paraná and Tietê river through a waterway that has several dams with locks, whose construction began in the mid-1950s, at a time when the multiple uses of water were considered and respected. Using this waterway the cargo can reach the middle of São Paulo state and then requires transfer to the road or and rail transportation modals, in order to reach Santos harbor. São Francisco waterway, in the northeast region, has a local importance once again the connection to the sea is impeded by a series of dams without locks or ship elevators. Araguaia–Tocantins waterway may link the central region to north
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Fig. 1. Brazilian waterways (Garcia et al., 2011).
seaports and requires engineering interventions to permit commercial and competitive cargo transportation. The importance of this waterway and the environmental impacts that the necessary interventions would cause were subject of a great controversy which received wide media coverage. The problems found in the environmental licensing process are presented in this work. Amazon is a naturally navigable waterway, although needs improvements to ensure a safer transportation, is currently used for passenger and cargo freight. An important part of the soybean production of central region of Brazil, is exported using this waterway leading the cargo to the north coast export ports. In some moments the federal government conducted studies to interconnect the waterways, enlarging the navigation extensions to ensure competitiveness to this transportation modal, but these ideas were not detailed, and nowadays are abandoned. Dam construction in the country was intensified in the 1970s aiming hydropower generation and at this particular time most of these enterprises did not favor the construction of locks. Some of these dams stay until now without an option for navigation (Itaipu dam at Paraná River); others that had at least a viable transposition project had its implementation postpone for decades (Jupiá dam at Paraná River and Tucuruí dam at Tocantins-river).
2.3. Environmental legislation It was from the 1970s the first environmental laws motivated by the worldwide awareness about human action damage to the environment. The milestone was the United Nations Conference on Human Environment in Stockholm in 1972, which suggested the adoption of an environmental planning associated with the ecological prudence. In 1987 the Brundtland commission’s report – ‘‘Our Common Future’’ introduces the concept of economic growth with social and environmental sustainability, reinforcing the need to include social inequalities in the debate, once poverty is a factor of environmental predation (Brundtland et al., 1987). Following the same trend, coupled with the pressure caused by tanker accidents, Brazil endorsed the MARPOL 1973/1978 and more recently due to the Oil Pollution Act of 1990 approved the Law 9.966 in 2000, known as the oil law, which
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consolidates existing measures of environmental management, determining the requirements and procedures for the basic framework and environmental management of port facilities. Brazil followed the global trend, with the introduction of gradual changes in water resources management, port organization and environmental legislation, which impacted the transportation sector, with milestones described below. In 1973 the Environment Department (SEMA) was created, its focus was the discussion of environmental issues with the society and act as an advisory body. In 1981 was established the National Environment Policy (Law 6.938/81), and creation of the following agencies: the National Environment System (SISNAMA), the National Environment Council (CONAMA) and, finally, in 1989, National Institute of Environment (IBAMA). Currently these agencies are articulated and are linked to the Ministry of the Environment created in 1992. The Brazilian Constitution of 1988 was an important step for the current environmental policy and management of water resources. In the same year was established the National Plan for Coastal Management – PNGC (Law 7661/88) which states that each state/county is responsible for developing a management plan for its coastal zone, in order to guide urban growth and port facilities, also fishing activities, leisure and tourism, ensuring the protection of areas of interest (mangroves and reserves), controlling erosion on the coast, and monitoring water quality. In 1991 began the process of discussing the draft federal law for the establishment of the National Policy of Water Resources, which was widely discussed and finally established by Federal Law No. 9433, 1997, with the emphasis on multiple use of water, decentralized management and shared with society, to be arranged by watershed committees with the participation of the public, users and communities (BRASIL, 2006). In State level, the state of São Paulo launched the Law No. 7663 of 30 December 1991 which establishes standards to guide the State Policy on Water Resources and the Integrated Water Resources Management. The State Policy on Water Resources aims to ensure that water, a natural resource essential to life, to economic development and to social welfare, can be controlled and used with satisfactory quality standards for your current users and future generations throughout the territory of the State of Sao Paulo. In 1992 the Dublin Conference established the idea of water as a finite resource with economic value and that its management should be done in a participatory way. In the same year the Agenda 21, elaborated by ECO 92 in the city of Rio de Janeiro, established global guidelines for sustainable development. From this document was produced Brazilian Agenda 21 which established guidelines for specific sectors. For the transportation freight subsector lists the followings among others, directly related to the points discussed in this article (CEDIBH, 2010; Porto and Teixeira, 2002). Modernization of the freight transport sector, leveraging the existing infrastructure, and valuing the intermodality to reduction logistics costs and the ‘‘Brazil cost’’.1 Encourage fluvial and lacustrine transport systems in suitable places – ensuring the multiple use of water. Enhance the role of coastal shipping. Accelerate the process of port reform, the implementation of the port environmental agenda and coastal management. Encourage long-distance transport by rail instead of road transport. Review of allowance to freight cargo road. The Port Modernization Law 8630/93, as previously mentioned, introduced huge changes in the sector organization and corroborates the environmental requirements as mandatorily. This law indicates the need for environmental impact studies for new construction, renovations and expansions and establishes that a formal protocol should be followed in order to obtain environmental approval. This law defines that the port management will be done in a participatory manner by the Port Authority Council (CAP), which is responsible for: establish and implement the Zoning Plan of the Port, compliance with environmental protection standards, implementation of contingency plans, among other tasks. It is observed that the Port Authority will have to tailor your management plan for the coastal management plan prepared by the state or municipality and the international conventions ratified by the Navy of Brazil, as well as its standards for safety of navigation and transshipment cargo process (Brasil, 1993; Marinha do Brasil, 2012). The environmental licensing provided for in the Brazilian constitution, was regulated by CONAMA by Resolution 237 of 1997 that describes which activities and enterprises will be subject to environmental licensing by national and state agencies. In 2000 the National Water Agency (ANA) was created, connected to the Environment Ministry, in order to implement the National Water Resources Policy and to coordinate the Water Resources National System Management (SINGREH). The SINGREH is composed by: the Water Resources National Council; Water Resources Councils of the States and Federal District; the Watershed Committees; Federal, State and local agencies related to water resources management. This national management structure is somewhat replicated in states and in the watersheds committees creating an interconnected network of entities that make the decentralized management of water resources. The Water Resources National Council (CNRH), which develops activities since June 1998, occupies the highest instance in the hierarchy of SINGREH. It consists of specific techniques chambers, which have the aim of discuss and regulate laws, artic-
1
In this context Brazil Cost is an economic concept that defines all costs that exceed an international standard for goods transportation.
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ulating the various institutions involved to reach consensus. The CNRH produced the normative framework to ensure the effectiveness of tools for managing water resources policy, supported the creation of State Water Resources Councils and the preparation of Water Resources Plan, as well as the creation of Watershed Committees for rivers under dominion Union and States.
Fig. 2. Flowchart to obtain the environmental permitting for a waterway port in the State of São Paulo in 2003.
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In January 2006, the National Water Resources Plan (PNRH) was approved by CNRH. This is the document that sets out the strategic planning of water resources management in the country by 2020, provides support and guides the implementation of the National Policy Water Resources and SINGREH (BRASIL, 2006). Ports are complex structures that bring together different sectors, each with their own specific legislation. In the Brazilian case it is necessary to harmonize environmental, water resources and transport legislation and polices in national, state and local levels as well as international agreements, without losing sight of the strategic growth policies, which is the case of the National Plan of Logistics and Transport (PNLT). The PNLT Transport and the Multi-Year Plan 2012–2015 indicates actions and priority sectors for investment, with the allocation of resources detailed in the Growth Acceleration Plan (PAC). It is observed that Brazil has bold goals for investment in port infrastructure (Ministério do Planejamento, Orçamento e Gestão, 2011). On the other hand it is observed that many times the speed of implementation of proposed actions is slower than expected, since the whole licensing process is lengthy reflecting the characteristics of bureaucratic processes that organize participative actions. Projects are complex, involving many actors, and demanding studies by experts. The potential uses of physical environments, where the works will be performed are conflicting, and mobilize public opinion with prominence in the media, further increasing the length of the process. The Araguaia–Tocantins waterway can be presented as an extreme example of this situation, the first environmental impact study was initiated in 1995. The project was forwarded to the responsible environmental agency in 1999. Because of a legal struggle, the environmental license was paralyzed until 2001, when it was demonstrated the need for more environmental impact studies, which were held in 2002. In 2003 it was revised the concept of environmental licensing of waterways. Until that time the waterway was licensed as a whole. From 2003, the license becomes individual for each improvement design and facilities that comprise it. In 2003 and 2004 this new format licensing was detailed. Currently, some interventions have been licensed and are part of the PAC, resulting in this case in a time of 15 years to obtain the environmental license (AHITAR, 2006). Another problem is the time consumed for the public bidding of the works due to the scanty number of government staff that causes delays, interruptions and slowdowns. The environmental permitting is the first step towards the implementation of any intervention in the area of port installation. It must consider all relevant environmental legislation in all spheres of influence: federal, state and municipal. Whereas the state environmental laws are in different stages of deployment and regulation, we chose to study the environmental licensing in the waterway sector of the State of Sao Paulo due to legislation in this state be the most developed and serve as reference for the other states, and also due the economical importance of Tiete–Parana waterway currently has for the country.
3. Environmental permitting The Environmental Permitting (EP) is a procedure whereby the competent environmental agency allows the location, installation, expansion and operation of projects and activities using environmental resources, and that may be considered effectively or potentially polluting or those who, in whatever form, can cause environmental degradation. This instrument seeks to ensure that the preventive and control measures, adopted in the projects are compatible with sustainable development, based on three criteria: economic efficiency, social equity and environmental quality. By the year 2009, to obtain an environmental permitting in Brazil it was necessary to move through different departments with different documentations, which made the process slow and exhausting. Fig. 2 shows how it was the process to obtain the environmental licensing in 2003, with various agencies involved in the process, contributing to its slowness. For a better understanding of the flowchart, the abbreviations are transcribed below:
DEPRN – State Department of Natural Resource Protection. DAIA – Department of Environmental Impact Assessment. DAEE – Department of Water and Electricity. Former CETESB – Company of Environmental Sanitation Technology. CONSEMA – State Council on the Environment. CBH – Watershed Committee. LP – Preliminary License, Li – Installation License and LO – Operating License. TR – Terms of Reference. RAP – Preliminary Environmental Report. EIA-RIMA – Environmental Impact Assessment Report followed by Environmental Impact. IBAMA (Brazilian Institute of Environment and Renewable Natural Resources).
As can be seen the process was complex and with input of several documents along the process. This process could take several years, sometimes more than a decade. The next flowchart that appears in Fig. 3 shows the change in the process to obtain EP. Although had been simplified, it is still complex and time-consuming. Currently the projects concerning the waterway system are seen as of significant envi-
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ronmental impact and are subject to the preparation of EIA-RIMA or RAP depending on the location of the works and damage to the environment. Before 2009 the projects could be or could be not consider of significant environment impact following different paths at the licensing process as seen in Fig. 2.
Fig. 3. Flowchart to obtain the environmental permitting for a waterway port in the State of São Paulo since 2009.
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Nowadays the process to obtaining the environmental permitting in the state of São Paulo begins with the delivery of all documentation required by law to the competent bodies, which are: DAEE and CETESB (the new). IBAMA can be triggered if the project involves areas of federal domain. By the Law 13542, enacted by the State Government on May 8, 2009 was established the ‘‘New CETESB.’’ The environmental agency in São Paulo acquired a new name and new assignments, mainly in the licensing process in the state. The acronym stood CETESB and the company changed its name officially to Environmental Company of São Paulo, previously known as Technology Company of Basic Sanitation. With this Law, CETESB is the responsible agency of state government in the field of pollution control, the executing agency of SEAQUA System (State Administration of Environmental Quality, Protection, Control and Development of Environment and Proper Use of Natural Resources) and agency of SIGRH (Integrated Water Resources Management), and unifies the receipt of documentation for obtaining the EP, being responsible for the analyzes. This unification was made between departments subordinate to the State Secretariat of Environment of São Paulo. DAIA and DPRN are now departments within the new CETESB. It is CETESB the only one that now grants the licenses: LP – Preliminary License, Li – Installation License and LO – Operating License. The LP will contain the basic requirements to be met in the phases of location, installation and operation, subject to land use plans from municipal, state or federal government. For Li, it will only be issued authorizing for the initial deployment, if the requirements are met. The LO, in turn, will be issued after verification of compliance with the requirements of LP and Li (CETESB, 2012). DAEE is subordinate to the Department of Sanitation and Water Resources from State of São Paulo and is the manager of water resources of the State, responsible for implementing the State Policy on Water Resources, as well as coordinating the Integrated Water Resources Management in terms of Law 7.663/91, adopting the watershed as a physical unit for territorial planning and management. Any project related to the waterway system has direct interference with the water resources. thus is required by DAEE carrying out the process of granting license of right of use of water resources or granting dispense of this license, which is given for some time, purpose and condition expressed in this grant. To obtain this grant license it is necessary to follow the guidelines for submission of documents required by law. The granting of right of use of water resources must be requested through the proper forms, available on the Board of Watershed. This Board is chosen by DAEE and depends where the county is located, where it will be given information about documentation and the necessary hydrological studies (DAEE, 2012). IBAMA is responsible for formulating, coordinating, implementing and enforcing the National Environmental Policy and preservation, conservation and rational use, monitoring, control and promotion of renewable natural resources. These legal requirements are related to projects or activities whose jurisdiction lies in licensing area of federal domain. IBAMA operates mainly in the licensing of large infrastructure projects involving impacts on more than one state and activities of the oil and gas on the continental shelf. It is difficult to estimate the time that each process can take nowadays, it depends on whether the project is the subject of controversy and conflict that can generate standstill of the licensing process through legal appeals. Considering a project that proceeds without drawbacks in the detailed steps in the flowchart in Fig. 3, a reasonable estimate of the total time to obtain Environmental permitting, starting from data collection until to final approval, considering the required public hearing is 18 up to 24 months.
4. Conclusions Nowadays Brazilian environmental policies are developed in democratic and participative way, although with elevated degree of bureaucracy and lack of integration among the several governmental agencies, which makes the approval of environmental certifications demand several years for new projects. Withstanding, inside the governmental agencies co-exist two currents – the ‘‘preservationist’’ that forbid the implementation of new enterprises and the ‘‘sustainabilist’’ that focus in the economic and environmental viability. Other problem is that where the environmental plans are conceived, the thresholds are situated along the lack of mechanism to promote the sustainable uses among the different social actors and in the difficulties of the own environmental control resources to deal with demands for new usages of natural resources with restriction of use. Promote and authorize instead of control and forbidden. Streamline and no longer create impediments. This conflict it is more dramatic in countries or regions less developed, which has constant increasing of population, with deficits on basic needs and infrastructures. This paper provides an overview of the environmental legislation development and the current complexity for the environmental licensing of a waterway port. In relation to a coastal installation, the licensing procedure becomes even more complex once involves other actors as coastal zoning and international agreements ratified by the Navy of Brazil. Environmental preservation is important for future generations. Thus, the environmental laws are important to establish environmental goals and ensure sustainable development. However, the complexity of the procedures makes the process slow. This delay can be attributed to several factors such as lack of coordination between the agencies involved that should maintain a permanent communication channel for exchanging information.
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Compliance with these requirements is jeopardized by a lack of well-trained technicians and coherent framework for the development of its function, which turns out to require more time for the release of important works for the economic development of Brazil. The economic development of a country is closely linked to ports and although the environmental concern is relevant and necessary, it is clear that the bureaucracy, complex processes to obtain licensing and anachronistic structures impede the blocks the country development. The conflict of interest which is related to the implementation of transport routes is large and involves significant financial and human resources (social and cultural aspects). The management made in a participatory manner allows everyone involved to express their views. The construction of a consensus solution can often be time-consuming. For this reason it is necessary that the management of this process be efficient and not to further increase the time involved. Also it is necessary to prevent that some actors try to derail the process of decision making. Improvements have been effected over the years to simplify processes. However, they are still far from being regarded as efficient and productive. The development of methodologies to evaluate the efficiency of the environmental permitting process can be an important step. It could allow comparison of the permitting processes at various national States and works; and also could identifying bottlenecks and compare with environmental permitting in other countries, providing ideas for improving the processes involved. Acknowledgments The authors are grateful for the information available by IBAMA and CETESB. References Kitzman, D., Asmus, M., 2006. Gestão ambiental portuária: desafios e possiblidades. RAP Rio de Janeiro 40 (6), 1041–1060, (accessed April 2012). Moreno, J., 2006. Evolução da navegação de cabotagem e suas condições de viabilidade na costa brasileira. Graduation Monograph – FATEC-Jahu – Logistics, 65p. Goularti Filho, 2007. Improvements, equipment and modernization of the Brazilian ports: the long and constant wait. Economia e Sociedade 16(3) Campinas. (accessed February 2012). Garcia, L.E., 2011. Inland navigation in Brazil: potential and challenge. In: Smart Rivers Conference, New Orleans, USA. (accessed April 2012). Brundtland, G.H. et al, 1987. Our Common Future: By World Commission on Environment and Development. Oxford University Press, Oxford, p. 384. BRASIL, 2006. Ministério do Meio Ambiente. Secretaria de Recursos Hídricos. Panorama e estados dos recursos hídricos do Brasil. In: Plano Nacional de Recursos Hídricos, vol. 1. MMA, Brasília, 2006. CEDIBH, 2010. Histórico dos recursos hídricos. (accessed April 2010). Porto, M.M., Teixeira, S.G., 2002. Portos e Meio ambiente. Aduaneira, 230p. Brasil, 1993. Lei 8630. Lei dos Portos. . (accessed February 2012). Marinha do Brasil, 2012. Convenções. (accessed February 2012). Ministério do Planejamento, Orçamento e Gestão, 2011. Plano PluriAnual 2012–2015. Plano mais Brasil mais desenvolvimento, mais igualdade e mais participação. (accessed March 2012). AHITAR, 2006. (accessed March 2012). CETESB, 2012. A Nova CETESB. (accessed February 2012). DAEE, 2012. Resolução Conjunta SMA/SERHS n° 1. (accessed March 2012).
Contents lists available at SciVerse ScienceDirect
Transportation Research Part A journal homepage: www.elsevier.com/locate/tra
Is the environmental policies procedures a barrier to development of inland navigation and port management? A case of study in Brazil Ilza Machado Kaiser a, Barbara Stolte Bezerra a,⇑, Leslie Ivana Serino Castro b a b
UNESP - Univ Estadual Paulista, Faculdade de Engenharia de Bauru, Departamento de Engenharia Civil, Brazil UNESP - Univ Estadual Paulista, Faculdade de Agronomia de Botucatu, Brazil
a r t i c l e
i n f o
Article history: Received 31 July 2012 Accepted 9 October 2012
Keywords: Environment legislation Port Inland navigation Port installation Environmental permitting
a b s t r a c t The main objective of this article is to discuss the Brazilian environmental legislation and policies towards the development of navigation and port management. The research illustrated some difficulties faced by the country and make suggestions to overcome it. The construction of the environmental legal framework began in the early 1960s and resulted in a very complex system, as a consequence of policies adopted by the country. Nowadays Brazilian environmental policies are developed in democratic and participative way, although with elevated degree of bureaucracy and lack of integration among the several governmental agencies, which makes the approval of environmental certifications demand several years for new port projects or improvements, which delays the economic development of the country. Efforts have been made to simplify the licensing process. As result of this research two flowchart for environmental licenses of ports installation are shown: The first shows the process until 2009 and the second shows the process nowadays. This become an important issue due the fact that inland navigation is one of the less pollutant modes of transportation, and although, the process of environmental certification was simplified, if compare with 2009, it is still complex and time-consuming, delaying the development of the infrastructure. Ó 2012 Elsevier Ltd. All rights reserved.
1. Introduction The environmental issue today reflects a new ethic on the survival of humans and other species of organisms of the biosphere. This new ethic should cause changes in the global economy, suggesting a process that passes through knowledge, technology and infrastructure, and by various means of environmental and social development enabling the achievements of environmental sustainability. The concept of environmental sustainability introduced in the late twentieth century is still being built in a gradual way in the design of transportation engineering and management practices, since it involves cultural changes, conflicts management, political alliances, economic development stage, generation and dissemination of knowledge, technological development among others. The implementation and operation of port terminals involve many activities that interfere with the environmental aspects such as occupation of permanent preservation areas (PPAs), dredging and overthrow in water bodies, waste collection from ships, water quality, others not listed here.
⇑ Corresponding author. E-mail addresses: [email protected] (I.M. Kaiser), [email protected] (B.S. Bezerra), [email protected] (L.I.S. Castro). 0965-8564/$ - see front matter Ó 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.tra.2012.10.025
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Brazilian ports are outdated and in the limit of their capacity. The current economic policy established goals for increasing foreign trade so there is an urgent demand for ports and transport improvements such as: access roads, dredging projects, expansion of port facilities, and they are paralyzed due the slow process of getting environmental permitting. Only one port from 11 that are on the federal government agenda to receive financial resources to their improvements obtained environmental permits. The legal framework governing the port sector was built on following the international, federal, state and municipal laws, incorporated at various times, resulting in a ‘‘patchwork’’, and involves various government agencies in different areas, with conflicting views on issues of economic, social and environmental development. To exacerbate the situation, government agencies involved have a chronic shortage of quantitative qualified personnel and lack of infrastructure to meet demand. All this conspires to increase the complexity of the environmental permitting (Kitzman and Asmus, 2006). Finally, to illustrate the complexity of environmental permitting process and its evolution, two flowcharts demonstrating the Environmental Permitting (EP) of waterway port facility are presented. The first flowchart shows the procedures for obtaining the EP until 2009, the second flowchart shows the current procedures obtain the EP, although it had been simplified, it is still lengthy, complex and disarticulated. 2. Development of ports and navigation and their interface with Brazilian environmental policy A brief description of the development of maritime and waterways navigation and the Brazilian environmental legislation is done hereafter. 2.1. Maritime navigation Brazil has a coastline of approximately 8000 km, has 17 states bordering the sea and 14 states capitals located in the coast. Throughout its history, Brazil has been a major producer and exporter of raw materials and its economy depended on the port structures. For too long the development of the country remained close to the shore, and in the early colonization the connection between the small clusters was only possible by coastal shipping. By the territorial dimensions and urban areas location, coastal shipping is presented as an alternative to redistribution of goods in the country, but the transport matrix adopted, the result of policy options and planning carried out during the last century in various historical moments, has been in favor of road. The coastal shipping has gone through periods of flowering and abandonment. (Moreno, 2006). The port administration in Brazil can be divided into three phases (Goularti Filho, 2007): Up to 1934 – called the implementation period – as the regions were being organized port structures were implanted to meet the demands of cargo for export locally or regionally, creating a wide range of administrative formats. From 1934 until 1990 – consolidation period. A central state agency was created for manage, standardize and plan the port sector and waterway transportation. In this period this agency has been redesigned with changes in name and structure, and the sector has gone through periods of investment and abandonment. From 1990 – the adoption of neoliberal policies led to the extinction of this centralized state agency and the proposition of the Port Modernization Law, which was approved and implemented in subsequent years. Their conduct and their implementation had been problematic and slow due to lack of political consensus and conflict of interest in the privatization process (operation by concession). However, the need to modernize the ports in Brazil was visible. Several authors suggest efficiencies in the new model of port management, which has caused profound changes in the administration and labor organization. 2.2. Inland navigation The country also has an extensive river system, with a potential of 50,000 km waterway. But so far the country has 20.000 km of navigable stretches as shown in Fig. 1, it is necessary to make improvements to extend these sections. Brazilian south and southeast region has two important inland navigation corridors. One consisting of the Jacuí, Taquari and Pelotas rivers that allow the flow of agricultural production in the southernmost Brazilian states; linking to export via the seaport of Rio Grande. The other corridor, much broader, which drains a significant amount of grain produced in the central region is composed by Uruguay, Paraguay, Parana and Tiete rivers and allows the connection with the Southern Cone countries, Argentina and Uruguay flowing into Prata River estuary. This interconnection is compromised by the absence of locks or ships elevators at Itaipu dam, built in the decade of 1970–1980. Due to the high cost of transshipment at this place, the option is to export the cargo through Santos Port, so the cargo navigates by Paraná and Tietê river through a waterway that has several dams with locks, whose construction began in the mid-1950s, at a time when the multiple uses of water were considered and respected. Using this waterway the cargo can reach the middle of São Paulo state and then requires transfer to the road or and rail transportation modals, in order to reach Santos harbor. São Francisco waterway, in the northeast region, has a local importance once again the connection to the sea is impeded by a series of dams without locks or ship elevators. Araguaia–Tocantins waterway may link the central region to north
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Fig. 1. Brazilian waterways (Garcia et al., 2011).
seaports and requires engineering interventions to permit commercial and competitive cargo transportation. The importance of this waterway and the environmental impacts that the necessary interventions would cause were subject of a great controversy which received wide media coverage. The problems found in the environmental licensing process are presented in this work. Amazon is a naturally navigable waterway, although needs improvements to ensure a safer transportation, is currently used for passenger and cargo freight. An important part of the soybean production of central region of Brazil, is exported using this waterway leading the cargo to the north coast export ports. In some moments the federal government conducted studies to interconnect the waterways, enlarging the navigation extensions to ensure competitiveness to this transportation modal, but these ideas were not detailed, and nowadays are abandoned. Dam construction in the country was intensified in the 1970s aiming hydropower generation and at this particular time most of these enterprises did not favor the construction of locks. Some of these dams stay until now without an option for navigation (Itaipu dam at Paraná River); others that had at least a viable transposition project had its implementation postpone for decades (Jupiá dam at Paraná River and Tucuruí dam at Tocantins-river).
2.3. Environmental legislation It was from the 1970s the first environmental laws motivated by the worldwide awareness about human action damage to the environment. The milestone was the United Nations Conference on Human Environment in Stockholm in 1972, which suggested the adoption of an environmental planning associated with the ecological prudence. In 1987 the Brundtland commission’s report – ‘‘Our Common Future’’ introduces the concept of economic growth with social and environmental sustainability, reinforcing the need to include social inequalities in the debate, once poverty is a factor of environmental predation (Brundtland et al., 1987). Following the same trend, coupled with the pressure caused by tanker accidents, Brazil endorsed the MARPOL 1973/1978 and more recently due to the Oil Pollution Act of 1990 approved the Law 9.966 in 2000, known as the oil law, which
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consolidates existing measures of environmental management, determining the requirements and procedures for the basic framework and environmental management of port facilities. Brazil followed the global trend, with the introduction of gradual changes in water resources management, port organization and environmental legislation, which impacted the transportation sector, with milestones described below. In 1973 the Environment Department (SEMA) was created, its focus was the discussion of environmental issues with the society and act as an advisory body. In 1981 was established the National Environment Policy (Law 6.938/81), and creation of the following agencies: the National Environment System (SISNAMA), the National Environment Council (CONAMA) and, finally, in 1989, National Institute of Environment (IBAMA). Currently these agencies are articulated and are linked to the Ministry of the Environment created in 1992. The Brazilian Constitution of 1988 was an important step for the current environmental policy and management of water resources. In the same year was established the National Plan for Coastal Management – PNGC (Law 7661/88) which states that each state/county is responsible for developing a management plan for its coastal zone, in order to guide urban growth and port facilities, also fishing activities, leisure and tourism, ensuring the protection of areas of interest (mangroves and reserves), controlling erosion on the coast, and monitoring water quality. In 1991 began the process of discussing the draft federal law for the establishment of the National Policy of Water Resources, which was widely discussed and finally established by Federal Law No. 9433, 1997, with the emphasis on multiple use of water, decentralized management and shared with society, to be arranged by watershed committees with the participation of the public, users and communities (BRASIL, 2006). In State level, the state of São Paulo launched the Law No. 7663 of 30 December 1991 which establishes standards to guide the State Policy on Water Resources and the Integrated Water Resources Management. The State Policy on Water Resources aims to ensure that water, a natural resource essential to life, to economic development and to social welfare, can be controlled and used with satisfactory quality standards for your current users and future generations throughout the territory of the State of Sao Paulo. In 1992 the Dublin Conference established the idea of water as a finite resource with economic value and that its management should be done in a participatory way. In the same year the Agenda 21, elaborated by ECO 92 in the city of Rio de Janeiro, established global guidelines for sustainable development. From this document was produced Brazilian Agenda 21 which established guidelines for specific sectors. For the transportation freight subsector lists the followings among others, directly related to the points discussed in this article (CEDIBH, 2010; Porto and Teixeira, 2002). Modernization of the freight transport sector, leveraging the existing infrastructure, and valuing the intermodality to reduction logistics costs and the ‘‘Brazil cost’’.1 Encourage fluvial and lacustrine transport systems in suitable places – ensuring the multiple use of water. Enhance the role of coastal shipping. Accelerate the process of port reform, the implementation of the port environmental agenda and coastal management. Encourage long-distance transport by rail instead of road transport. Review of allowance to freight cargo road. The Port Modernization Law 8630/93, as previously mentioned, introduced huge changes in the sector organization and corroborates the environmental requirements as mandatorily. This law indicates the need for environmental impact studies for new construction, renovations and expansions and establishes that a formal protocol should be followed in order to obtain environmental approval. This law defines that the port management will be done in a participatory manner by the Port Authority Council (CAP), which is responsible for: establish and implement the Zoning Plan of the Port, compliance with environmental protection standards, implementation of contingency plans, among other tasks. It is observed that the Port Authority will have to tailor your management plan for the coastal management plan prepared by the state or municipality and the international conventions ratified by the Navy of Brazil, as well as its standards for safety of navigation and transshipment cargo process (Brasil, 1993; Marinha do Brasil, 2012). The environmental licensing provided for in the Brazilian constitution, was regulated by CONAMA by Resolution 237 of 1997 that describes which activities and enterprises will be subject to environmental licensing by national and state agencies. In 2000 the National Water Agency (ANA) was created, connected to the Environment Ministry, in order to implement the National Water Resources Policy and to coordinate the Water Resources National System Management (SINGREH). The SINGREH is composed by: the Water Resources National Council; Water Resources Councils of the States and Federal District; the Watershed Committees; Federal, State and local agencies related to water resources management. This national management structure is somewhat replicated in states and in the watersheds committees creating an interconnected network of entities that make the decentralized management of water resources. The Water Resources National Council (CNRH), which develops activities since June 1998, occupies the highest instance in the hierarchy of SINGREH. It consists of specific techniques chambers, which have the aim of discuss and regulate laws, artic-
1
In this context Brazil Cost is an economic concept that defines all costs that exceed an international standard for goods transportation.
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ulating the various institutions involved to reach consensus. The CNRH produced the normative framework to ensure the effectiveness of tools for managing water resources policy, supported the creation of State Water Resources Councils and the preparation of Water Resources Plan, as well as the creation of Watershed Committees for rivers under dominion Union and States.
Fig. 2. Flowchart to obtain the environmental permitting for a waterway port in the State of São Paulo in 2003.
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In January 2006, the National Water Resources Plan (PNRH) was approved by CNRH. This is the document that sets out the strategic planning of water resources management in the country by 2020, provides support and guides the implementation of the National Policy Water Resources and SINGREH (BRASIL, 2006). Ports are complex structures that bring together different sectors, each with their own specific legislation. In the Brazilian case it is necessary to harmonize environmental, water resources and transport legislation and polices in national, state and local levels as well as international agreements, without losing sight of the strategic growth policies, which is the case of the National Plan of Logistics and Transport (PNLT). The PNLT Transport and the Multi-Year Plan 2012–2015 indicates actions and priority sectors for investment, with the allocation of resources detailed in the Growth Acceleration Plan (PAC). It is observed that Brazil has bold goals for investment in port infrastructure (Ministério do Planejamento, Orçamento e Gestão, 2011). On the other hand it is observed that many times the speed of implementation of proposed actions is slower than expected, since the whole licensing process is lengthy reflecting the characteristics of bureaucratic processes that organize participative actions. Projects are complex, involving many actors, and demanding studies by experts. The potential uses of physical environments, where the works will be performed are conflicting, and mobilize public opinion with prominence in the media, further increasing the length of the process. The Araguaia–Tocantins waterway can be presented as an extreme example of this situation, the first environmental impact study was initiated in 1995. The project was forwarded to the responsible environmental agency in 1999. Because of a legal struggle, the environmental license was paralyzed until 2001, when it was demonstrated the need for more environmental impact studies, which were held in 2002. In 2003 it was revised the concept of environmental licensing of waterways. Until that time the waterway was licensed as a whole. From 2003, the license becomes individual for each improvement design and facilities that comprise it. In 2003 and 2004 this new format licensing was detailed. Currently, some interventions have been licensed and are part of the PAC, resulting in this case in a time of 15 years to obtain the environmental license (AHITAR, 2006). Another problem is the time consumed for the public bidding of the works due to the scanty number of government staff that causes delays, interruptions and slowdowns. The environmental permitting is the first step towards the implementation of any intervention in the area of port installation. It must consider all relevant environmental legislation in all spheres of influence: federal, state and municipal. Whereas the state environmental laws are in different stages of deployment and regulation, we chose to study the environmental licensing in the waterway sector of the State of Sao Paulo due to legislation in this state be the most developed and serve as reference for the other states, and also due the economical importance of Tiete–Parana waterway currently has for the country.
3. Environmental permitting The Environmental Permitting (EP) is a procedure whereby the competent environmental agency allows the location, installation, expansion and operation of projects and activities using environmental resources, and that may be considered effectively or potentially polluting or those who, in whatever form, can cause environmental degradation. This instrument seeks to ensure that the preventive and control measures, adopted in the projects are compatible with sustainable development, based on three criteria: economic efficiency, social equity and environmental quality. By the year 2009, to obtain an environmental permitting in Brazil it was necessary to move through different departments with different documentations, which made the process slow and exhausting. Fig. 2 shows how it was the process to obtain the environmental licensing in 2003, with various agencies involved in the process, contributing to its slowness. For a better understanding of the flowchart, the abbreviations are transcribed below:
DEPRN – State Department of Natural Resource Protection. DAIA – Department of Environmental Impact Assessment. DAEE – Department of Water and Electricity. Former CETESB – Company of Environmental Sanitation Technology. CONSEMA – State Council on the Environment. CBH – Watershed Committee. LP – Preliminary License, Li – Installation License and LO – Operating License. TR – Terms of Reference. RAP – Preliminary Environmental Report. EIA-RIMA – Environmental Impact Assessment Report followed by Environmental Impact. IBAMA (Brazilian Institute of Environment and Renewable Natural Resources).
As can be seen the process was complex and with input of several documents along the process. This process could take several years, sometimes more than a decade. The next flowchart that appears in Fig. 3 shows the change in the process to obtain EP. Although had been simplified, it is still complex and time-consuming. Currently the projects concerning the waterway system are seen as of significant envi-
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ronmental impact and are subject to the preparation of EIA-RIMA or RAP depending on the location of the works and damage to the environment. Before 2009 the projects could be or could be not consider of significant environment impact following different paths at the licensing process as seen in Fig. 2.
Fig. 3. Flowchart to obtain the environmental permitting for a waterway port in the State of São Paulo since 2009.
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Nowadays the process to obtaining the environmental permitting in the state of São Paulo begins with the delivery of all documentation required by law to the competent bodies, which are: DAEE and CETESB (the new). IBAMA can be triggered if the project involves areas of federal domain. By the Law 13542, enacted by the State Government on May 8, 2009 was established the ‘‘New CETESB.’’ The environmental agency in São Paulo acquired a new name and new assignments, mainly in the licensing process in the state. The acronym stood CETESB and the company changed its name officially to Environmental Company of São Paulo, previously known as Technology Company of Basic Sanitation. With this Law, CETESB is the responsible agency of state government in the field of pollution control, the executing agency of SEAQUA System (State Administration of Environmental Quality, Protection, Control and Development of Environment and Proper Use of Natural Resources) and agency of SIGRH (Integrated Water Resources Management), and unifies the receipt of documentation for obtaining the EP, being responsible for the analyzes. This unification was made between departments subordinate to the State Secretariat of Environment of São Paulo. DAIA and DPRN are now departments within the new CETESB. It is CETESB the only one that now grants the licenses: LP – Preliminary License, Li – Installation License and LO – Operating License. The LP will contain the basic requirements to be met in the phases of location, installation and operation, subject to land use plans from municipal, state or federal government. For Li, it will only be issued authorizing for the initial deployment, if the requirements are met. The LO, in turn, will be issued after verification of compliance with the requirements of LP and Li (CETESB, 2012). DAEE is subordinate to the Department of Sanitation and Water Resources from State of São Paulo and is the manager of water resources of the State, responsible for implementing the State Policy on Water Resources, as well as coordinating the Integrated Water Resources Management in terms of Law 7.663/91, adopting the watershed as a physical unit for territorial planning and management. Any project related to the waterway system has direct interference with the water resources. thus is required by DAEE carrying out the process of granting license of right of use of water resources or granting dispense of this license, which is given for some time, purpose and condition expressed in this grant. To obtain this grant license it is necessary to follow the guidelines for submission of documents required by law. The granting of right of use of water resources must be requested through the proper forms, available on the Board of Watershed. This Board is chosen by DAEE and depends where the county is located, where it will be given information about documentation and the necessary hydrological studies (DAEE, 2012). IBAMA is responsible for formulating, coordinating, implementing and enforcing the National Environmental Policy and preservation, conservation and rational use, monitoring, control and promotion of renewable natural resources. These legal requirements are related to projects or activities whose jurisdiction lies in licensing area of federal domain. IBAMA operates mainly in the licensing of large infrastructure projects involving impacts on more than one state and activities of the oil and gas on the continental shelf. It is difficult to estimate the time that each process can take nowadays, it depends on whether the project is the subject of controversy and conflict that can generate standstill of the licensing process through legal appeals. Considering a project that proceeds without drawbacks in the detailed steps in the flowchart in Fig. 3, a reasonable estimate of the total time to obtain Environmental permitting, starting from data collection until to final approval, considering the required public hearing is 18 up to 24 months.
4. Conclusions Nowadays Brazilian environmental policies are developed in democratic and participative way, although with elevated degree of bureaucracy and lack of integration among the several governmental agencies, which makes the approval of environmental certifications demand several years for new projects. Withstanding, inside the governmental agencies co-exist two currents – the ‘‘preservationist’’ that forbid the implementation of new enterprises and the ‘‘sustainabilist’’ that focus in the economic and environmental viability. Other problem is that where the environmental plans are conceived, the thresholds are situated along the lack of mechanism to promote the sustainable uses among the different social actors and in the difficulties of the own environmental control resources to deal with demands for new usages of natural resources with restriction of use. Promote and authorize instead of control and forbidden. Streamline and no longer create impediments. This conflict it is more dramatic in countries or regions less developed, which has constant increasing of population, with deficits on basic needs and infrastructures. This paper provides an overview of the environmental legislation development and the current complexity for the environmental licensing of a waterway port. In relation to a coastal installation, the licensing procedure becomes even more complex once involves other actors as coastal zoning and international agreements ratified by the Navy of Brazil. Environmental preservation is important for future generations. Thus, the environmental laws are important to establish environmental goals and ensure sustainable development. However, the complexity of the procedures makes the process slow. This delay can be attributed to several factors such as lack of coordination between the agencies involved that should maintain a permanent communication channel for exchanging information.
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Compliance with these requirements is jeopardized by a lack of well-trained technicians and coherent framework for the development of its function, which turns out to require more time for the release of important works for the economic development of Brazil. The economic development of a country is closely linked to ports and although the environmental concern is relevant and necessary, it is clear that the bureaucracy, complex processes to obtain licensing and anachronistic structures impede the blocks the country development. The conflict of interest which is related to the implementation of transport routes is large and involves significant financial and human resources (social and cultural aspects). The management made in a participatory manner allows everyone involved to express their views. The construction of a consensus solution can often be time-consuming. For this reason it is necessary that the management of this process be efficient and not to further increase the time involved. Also it is necessary to prevent that some actors try to derail the process of decision making. Improvements have been effected over the years to simplify processes. However, they are still far from being regarded as efficient and productive. The development of methodologies to evaluate the efficiency of the environmental permitting process can be an important step. It could allow comparison of the permitting processes at various national States and works; and also could identifying bottlenecks and compare with environmental permitting in other countries, providing ideas for improving the processes involved. Acknowledgments The authors are grateful for the information available by IBAMA and CETESB. References Kitzman, D., Asmus, M., 2006. Gestão ambiental portuária: desafios e possiblidades. RAP Rio de Janeiro 40 (6), 1041–1060,