Direito ambiental e gestão estratégica de sustentabilidade

Abstract

Since it was introduced in the homeland legal system, Legal Reservation are an increasing relevant theme, especially with respect to its environmental importance. Under the safeguard of the Forest Code, the institute has had an increasing relevance since it was established by the Decree number 23.793/34 in 1934, particularly as an Territorial Specially Protected Area, under the prediction in article 225, § 1st, of the Federal Constitution. Thereby, this study aims at analysing the Legal Reserve through its historical evolution, conveying its constitutional characteristics which guard environmental law and verifying its infra-constitutional rules that correspond to the institute of the Legal Reserve. Accordingly, the goals of establishing this environmental conservation and environmental protection mechanism will be analyse so as to avoid an ultimate containment of native vegetation on behalf of economical development. The law 12.651/2012 which blatantly revoked the Forest Code of 1965, accompanied by the alterations introduced by law 12.727/2012, caused meaningful changes to the preceding regime of the Legal Reserve. In reality, the changes commenced with the modification of the concept of the new law with respect to the Legal Reserve, so as to attribute a dual function, ensuring sustainable economical practices as well as the rehabilitation of ecological processes. Therefore, the legislator who is solely unaware of the number of land owners and possessors and of the size and location of the Legal Reserve, Permanent Areas or Protection and of Restricted Usage, established the Rural Environmental Registry (acronym translated from Portuguese as CAR), which is a mandatory public electronic registration for all land properties through in order to integrate all data and to assemble an environmental database. The goal of CAR is to map rural properties and unify the Programs of Environmental Regularisation so as to effectively restore degraded biomes and ecosystems as well as to allow land owners and possessors economic use sustainably. By means of the National System of Environmental Rural Registration (acronym translated from Portuguese as SICAR), the CAR promises to facilitate the land owner’s life, especially of small ones, with a simplified mechanism of Legal Reserve mapping in a virtual setting. Additionally, under the new law, the land owner would thereby no longer be required to state the Legal Reserve during the property’s registration. Some of the issues following this particular event need a more thorough study and debate since the law 12.651/2012 itself is contradicting with respect to this requirement and it conflicts with the planning and principles of the registries of the Brazilian law. Likewise, the economic exploitation of the Legal Reserve and of the consolidated areas within Legal Reserve requires analysis and technical strictness in the undertaken study since those are arguable and controversial topics, particularly with respect to their doctrine. Accordingly, I aim at presenting this study in a comprehensive manner under the new authority of the Legal Reserve under the law 12.651/2012. This study will initially convey the environmental theme under the perspective of the constitution, historic evolution and concept of Legal Reserve. Then, this work will convey the authority of the New Forest Code (Law 12.651/12). The new concept of Legal Reserve was particularly addressed as well as the institutional manner following the Environmental Rural Registry. Another important aspect of attention was the new regime of the Legal Reserve, the property’s registration as well as the references in the law to the registrations of the Legal Reserve within the rural property. Exceptions to the rule of establishing the Legal Reserve and its economical exploitation were specifically addressed in this analysis. Finally, I analysed the theme of establishment of areas within Legal Reserve, whereby I aimed at clarifying arguable and controversial topics of the new legislation