Obstacles to full compliance with the provisions of the Forest Code applicable to timber industry

Through the provisions of the Forest Code, Forestry Law is based in the principle that native forests must be kept as they were created by nature, allowing for alternative use only in some specific cases well-defined in the law.88

The law requires the commercial utilization of native forests to be held through sustainable management only. As discussed in chapter 5, sustainable forest management is the most profitable and sustainable method of timber extraction in native forests. Its promotion is one of the solutions to be proposed to tackle illegal logging.89

Nevertheless, there are obstacles to the full enforcement of the provisions of the Forest Code presented herein. Such obstacles are responsible for the high levels of illegally sourced timber in the Amazon. Irregular occupation and uncontrolled deforestation are historical problems, and non-compliance with the law is a cultural tendency in the forestry sector. Moreover, deficient public monitoring of activities related to the timber industry is an encouragement to non-compliance. High levels of impunity and recidivism at the administrative and judicial systems have the same impact. Additionally, the competitive disadvantage of legally sourced timber in comparison with illegal timber is another

encouragement to illegal logging. These impediments to full enforcement of the Forest Code and other laws applicable to the Amazon timber industry will be described in chapter 3. Recommendations on how to overcome such obstacles will be presented in chapter 5.

88 _P

AULO DE BESSA ANTUNES,COMENTÁRIOS AO NOVO CÓDIGO FLORESTAL [COMMENTS ON THE NEW FOREST

CODE] 219 (Atlas, 2014). 89 _{See chapter 5, section c, iv, 2.}

ii. Prohibited suppression of endangered species and species necessary to traditional populations’ subsistence in native forests

The Forest Code determines the power of federal, state, and municipal Public

Administrations to prohibit or limit the suppression of species of flora that are rare, endemic, endangered, or necessary to traditional populations’ subsistence. They may also protect a specific tree from being cut due to its location, rareness, beauty, or condition as a provider of seeds.90

Some laws regulate the utilization of some of the most popular and endangered species within timber market. For instance, Federal Decree 5.975/2006 prohibits exploitation of the species castanheira (“Betholeria excelsa”) and species seringueira (“Hevea spp”) in natural, primitive and regenerated forests.91

Moreover, except in the case of sustainable forest management, Federal Decree 6.472/2008 permanently prohibits the suppression of trees of mahogany (“Swietenia Macrophylla King”). Suppression of mahogany is prohibited in native, primitive, and regenerated forests, including in areas where suppression of vegetation is authorized.

Ordinance 83-N/1991, issued by the Brazilian Institute of the Environment and

Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis - IBAMA), prohibits the suppression and exploitation of the following species:

90 _{Forest Code, art. 70 (Braz.).}

aroeira do sertão (“Astronium urundeuva”), aroeira das baraúnas (“Melanoxylon brauna” and “Schinopsis brasiliensis”), and aroeira do gonçalo alves (“Astronium fraxinifolium”). Their suppression is prohibited in the so-called primary forests, which present dense vegetation. Extraction is only allowed in damaged secondary forests or in the cerrado (savannah), if subject to a Sustainable Forest Management Plan duly approved by IBAMA.

In December 2014, the Ministry of the Environment provided a more comprehensive instrument of protection for certain species of flora by issuing Ordinance 443/2014, which contains the Official National List of Endangered Species of Flora. It lists more than 2,000 species, dividing them as extinct from nature, critically in danger, in danger, and vulnerable. All categories are fully protected, prohibiting the collection, cutting, transportation, storage, management, processing, and/or commercialization of timber products derived from these species.92

With regard to vulnerable species, sustainable management is allowed, as long as it is authorized by the competent environmental agency.93

The permanent prohibition against the exploitation of endangered species is a useful command and control instrument to tackle illegal logging. The listed species are endangered because of their uncontrolled extraction. This is due to their high economic value. Currently, these species are the main objects of illegal trade, such as castanheira, because their extraction form native forests is more profitable than their plantation or the trade of non-endangered species.

92 _{Ministry of the Environment Ordinance 443/2014, art. 2 (Braz.).}

93 _{Id. art. 3. To complement Ordinance 443/2014, the Ministry of the Environment issued the Normative}

Instruction 1 of February 12, 2015. It sets the requirements for the exploitation of vulnerable species listed in the Official National List of Endangered Species of Flora under a Sustainable Forest Management Plan, specifically within the Amazonian region. Such requirements are not applicable to species that are subject to other specific or international norms.

Therefore, the full enforcement of laws that prohibit the suppression of endangered species depends on efficient public monitoring and discouraging the sector to trade such species. Sustainable forest management should be encouraged to allow the utilization of vulnerable species, as well as the plantation of endangered ones. Public Administration could do it through the elimination of illegally sourced timber from the market, making legally sourced products more competitive. Chapter 5 provides recommendations on how the Government could achieve this goal.94

iii. The National System of Conservation Units as an instrument for environmental preservation and sustainable use of natural resources

The Federal Constitution, Article 225, Paragraph 1, III, determines the Public

Administration’s duty to create Specially Protected Areas, among which are the Conservation Units. In order to fulfill its constitutional duty, the Federal Government created the National System of Conservation Units (Sistema Nacional de Unidades de Conservação - SNUC), regulated by Federal Law 9.985/2000 and Federal Decree 4.340/2002.

SNUC is classified as a system that comprises an organized pool of several categories of Conservation Units.95

A Conservation Unit consists of territorial space, its environmental resources, and relevant natural features. It is created by the Public Administration and subject to a special management plan, with predetermined limits and conservational purposes to which adequate protection guarantees are applied.96

94 _{See chapter 5, sections b and c.} 95 _O

LIVEIRA, supra note 2, at 112.

Conservation Units may be created in public or private lands, or even in both at the same time. They are classified into two groups, according to the required level of

environmental protection: Units of Full Protection and Units of Sustainable Use. Conservation Units of Full Protection are mainly aimed to preserve nature, only admitted the indirect use97 of their natural resources except in some specific cases established by law.98 _Conservation Units of Sustainable Use are intended to harmonize the conservation of nature and the sustainable use99

of part of their natural resources.100

Within these groups, Federal Law 9.985/2000 stipulates the categories of federal Conservation Units on which the state and municipal classifications can be based. Federal Conservation Units of Full Protection are classified as (i) Ecological Stations; (ii) Biological Reserves; (iii) National Parks; (iv) Natural Monuments; and (v) Wilderness Refugees.101

As for Federal Conservation Units of

Sustainable Use, they are divided into (i) Areas of Environmental Protection; (ii) Areas of Relevant Ecological Interest; (iii) National Forests; (iv) Extractive Reserves; (v) Reserves of Sustainable Development; (vi) Reserves of Fauna; (vii) and Private Reserves of National Heritage.102

97 _{Federal Law 9.985/2000, art. 2 § IX (defines “indirect use” as the one that does not involve consumption,} collection, damage or destruction of natural resources.).

98 _{Federal Law 9.985/2000, art. 7 ¶ 1.}

99 _{Id. art. 2 § XI (defines “sustainable use” as the exploitation of the environment in a way to guarantee the} perennial renewable environmental resources and ecological process, maintaining the biodiversity and other ecological attributes, in a socially fair and economically viable form.).

100 _{Id. art. 7 ¶ 2.} 101 _{Id. art. 8.}

102 _{Federal Law 9.985/2000, art. 14 (Braz.). The federal agencies Institute Chico Mendes of Biodiversity}

Conservation (Instituto Chico Mendes de Conservação da Biodiversidade - ICMBio) and IBAMA are required to execute all actions referring to the federal Conservation Units, while states and municipalities are competent to manage their own respective ones. Federal Law 9.985/2000, art. 6 § III (Braz.).

1. Strict prohibition of timber exploitation within Conservation Units of