Bio.ComBrasil "Panorama Político e Regulatório da Biomassa como Combustível" Novembro 2016
1 2 3 4 Brazilian Rural Properties Acquisition by Foreigners Environmental Licensing Forestry Credit Certificate Energetic Forests Summary
1 Brazilian Rural Properties Acquisition by Foreigners Summary
Brazilian r u r a l p r o p e r t i e s acquisition by foreigners 2010 Federal Government modified its prior opinion by means of the issuance of the Opinion AGU-LA-01 aiming to reinstate the restrictions set forth in Law No. 5.709/71 for the acquisition of rural properties by Brazilian Companies Majority Held by Foreigners and to extend such restrictions to Brazilian companies controlled by foreigners and to rural lease transactions.
r u r a l p r o p e r t i e s Brazilian acquisition by foreigners Aiming to increase the investments in national territory, Brazilian Forestry Parliamentary Front supported the bill nº 4,059/2012 to directly fight the siege and restrictions to/for foreign capital in Brazilian rural properties. 2012 B i l l nº 4, 059. Project ed E f f ect s Governs the acquisition, the rural lease, and the cadaster of the rural properties by foreigners individuals and legal entities settled abroad. The proposed rules of the bill expressly shall no apply to Brazilian companies, even if constituted, controlled, or which capital/resources are foreigner originated. However, the acquisitions shall not be allowed by (i) Non-governmental organizations (whose headquarters are located abroad) with operations in Brazil, or, Brazilian non-governmental organizations with an annual budget originated from the same foreign individual or foreign group; (ii) Private foundation whose founders are listed in item i above, foreign legal entities or foreign legal entities authorized to operate in Brazil, but with headquarter abroad; and (iii) foreign countries sovereign funds. Also, foreign purchasers of the rural property must fulfill its social function ruled by law. The bill expressly revoke Federal Law nº 5,709/71. There are several other legislative propositions in progress. However, please note that this particular one is considerably advanced, being currently under matter of urgency.
Brazilian r u r a l p r o p e r t i e s acquisition by foreigners Brazilian Borderland Issue Brazilian Law 6,634/1979 states that it is considered essential for national security matters, the internal area comprising the range of 150 km (one hundred fifty kilometers) wide, parallel to the land boundary line of the Brazilian territory. In the event of any intended transactions with rural real estate located within the abovementioned range by foreigners, there must be, mandatorily, National Security Council prior consent. These provisons are not contemplated in the Bill nº 4,059, being an separated object of study and legal discussion.
2 Environmental Licensing Summary
Environmental Licensing The current environmental licensing proceeding in Brazil is very complex and bureaucratic, being the main legal-environmental obstacle for developing activities in the forestry business. There are several federal regulations on this subject, and also the possibility of each State of the federation to enact stricter rules regarding this aspect.
En vironmental Licensing RR AP Below we can find a map of Brazil categorized according to the complexity of the environmental licensing. We analyzed 10 States with the highest concentration of planted area in Brazil according to IBA. High complexity means that the State requires environmental license and EIA for plantations larger than 1,000hectares; Medium complexity means that the State requires environmental license but does not require EIA for plantations larger than 1,000 hectares; and Low complexity means that the State does not require environmental license or EIA for plantations larger than 1,000hectares but only requires a previous notice. AM CE MA PA RN PB AL PI AC RO High complexity Medium complexity PE BA MT DF GO MG MS ES SP Low complexity * We highlight that State Of Tocantins TO is classified as Low Complexity, since it doesn t require an environmental license for forestry activity (State Law No 2,713/2013). However, there is a Direct Action of Unconstitutionality filed to challenge this law. SE TO RJ PR SC RS
E n v i r o n m e n t a l L i c e n s i n g M a i n o n go i n g b i l l s o f l a w r e g a r d i n g t h i s m a t t e r Nº O b j e c t Bill of Law No 6411/2016 Bill of Law No 214/2015 Bill of Law No 654/2015 (matter of urgency) Constitutional Amendment Bill ( PEC ) No 65/2012 Bill of Law No 2163/2011 Bill of Law No 3729/2004 (matter of urgency) Amends the National Environmental Policy ( PNMA ) and CONAMA Resolutions No 01/86 and 237/97 to waive forestry from environmental licensing, when it occurs out of Legal Reserve and Permanent Preservation Areas. Amends the National Environmental Policy ( PNMA ) to exclude forestry from the list of activities that uses natural resources or that has a potential to cause pollution Establishes a simplified environmental licensing proceeding for projects considered strategic and of national interest Amends the National Constitution to ensure continuity of certain enterprises after just filing the request for environmental license. The environmental license will be issued upon presentation of the environmental impact assessment, which could not be afterwards suspended or canceled except for relevant new facts Amends the National Environmental Policy ( PNMA ) to waive or simplify the environmental licensing for some activities and in some circumstances Regulates the obligation to present environmental impact assessment for certain activities that are considered potentially polluting
3 Forestry Credit Certificate Summary 11
C r e a t i o n o f Fo r e s t r y In s t r u m e n t o f C r e d i t Fo r e s t r y C r e d i t C e r t i f i c a t e Since the past years it has been discussed the creation of a new credit certificate in Brazilian economic/legal scenario Using the standing timber or future standing timber as spread/basis, it would be possible to negotiate papers of timber assets, instead of negotiating the material asset itself Brazil is one of the biggest paper and cellulose producer in the world market and has the potential to consolidate as one of the largest producers of forest products Such paper shall have CPR ( Cédula de Produto Rural ) similar concept, however it will be up for 30 (thirty) years commercialization. Notwithstanding, legislative proposal also states that traded/transactioned currency can be performed in Real ( BRL ) or, alternatively, Dollar ( US$ ) Finally, it is worth to mention that its payment/discharge will consider cash plus interest rating, or equivalent value quantified in log or stampage timber
4 Energetic Forests Summary 13
Energetic Forests Energy Forests are forestry assets dedicated to power generation. This is considered a biomass, which is an example of a renewable energy source.
E n e r g e t i c Forests Participants Contracting Contract Type Fre e M a rk e t Companies that generates energy; traders; free and special consumers Free negotiation between buyers and sellers Agreement between the parties R e g u l a t e d M a rk e t Companies that generates energy; distributors and traders. The traders can trade energy only in existing energy auctions - (Adjustment and A-1) Through energy auctions held by Chamber of Commercialization of Electric Energy (CCEE), under delegation from National Agency of Energy Electricity (i.e. ANEEL) Regulated by National Agency of Energy Electricity (i.e. ANEEL) - Energy Purchase and Sale agreements in the Regulated Market Price Agreed between buyer and seller Established at auction Source: https://www.ccee.org.br/portal/faces/pages_publico/comoparticipar/ambientelivrea mbienteregulado?_afrloop=1885404577164504#%40%3f_afrloop%3d1885404577164504 %26_adf.ctrl-state%3Dm1yuu0g76_120
E n e rge tic Forests M a i n C h a l l e n g e s Source: agenda of Proposals from Working Group of Biomass-Ministry of Agriculture, Livestock and Supply (i.e. MAPA ) A) Characterize the sector of planted forest dedicated (not a cogeneration and or "waste") as a specific activity Solution: Specific auction edictal for power generation with wood chips coming from planted forests B)Ensure a monetary adjustment that reflects the costs of planted forest activities Solution: The renegotiation of the monetary adjustment with plantation costs C) Simplify environmental licensing for planted forest dedicated to power generation Solution: With a s pecific formulary/application requiring to operate in area with plantable potential up to twenty thousand hectares, issuance of provisional license (i.e LP ) to enable planting and subsequent cutting.
Obrigado! Aldo de Cresci Neto acn@gcnlaw.com.br