Maria José Salum*
The proposal for a General Law on Environmental Licensing originated in 2004 in the form of draft legislation that explained the need for it by citing three factors: the present lack of a General Law; practices were then largely governed by sub-legal norms that included, for instance, resolutions adopted by the National Council for the Environment (Conama); and an overabundance of often conflicting rules set by state governments as well as the federal government, resulting in significant regulatory instability for mining companies while not always making an effective contribution to the preservation of the environment.
From 2004 onward, up until the enactment of Law No. 15,190 in August 2025, the original bill on environmental licensing underwent several modifications, while maintaining unchanged its stated purpose of standardizing environmental licensing everywhere in Brazil. While the new rules are viewed favorably by some and unfavorably by others, the fact remains that today there is greater legal certainty, for companies and government departments alike, in the licensing of projects and activities that contribute to socio-economic and environmentally sustainable development.
In terms of its impact on the mining industry, there has undeniably been a gain when comparing the initial bill (PL 3729) laid before Congress in 2004 with the new Law No. 15,190. In the initial bill, article 1, section 3 specifically addressed the licensing of large-scale and/or high-risk mining projects or activities, which would be required to follow Conama regulations until such time as a specific law was enacted. Had this provision been retained in the new law, the mining industry would still be experiencing significant legal uncertainty for an indefinite period, considering the slowness and diversity of opinions on the issue within Conama and no less within the Chamber of Deputies. This can be considered a major gain for the mining industry.
On the environmental licensing process, the new law grants discretionary power to environmental licensing agencies to assess the level of potential environmental degradation to be expected from a project and, consequently, to rule on the licensing modality to be applied in each case. The law also sets out the terms of the minimum environmental studies to be required in accordance with each licensing modality.
Based on criteria determined by the competent environmental agency, there are two alternative licensing procedures for projects that present a significant potential for environmental degradation. In both cases an Environmental Impact Assessment and Environmental Impact Report (EIA/RIMA) will be required:
1. Three-phase modality: involving a preliminary license, followed later by an installation license and, later still, by an operating license;
2. Two-phase modality, with two options: the preliminary license and the installation license to be issued together under a single procedure, to be followed later by the operating license; alternatively, the preliminary license may first be issued alone, to be followed later by the installation license and the operating license together.
For projects that do not qualify as having significant potential for environmental degradation, the licensing modalities are simpler. In this case there are four modalities, none of them requiring an EIA/RIMA, although they will still depend on other, simpler studies. These modalities are:
3. Two-phase modality, as in No. 2 above;
4. Single-phase modality: all three licenses to be issued together;
5. Acceptance and compliance modality: the company to sign a declaration of acceptance and compliance with the licensing authority's requirements;
6. Corrective operating license: a license granting full approval to an activity or project currently operating without an environmental license, while specifying conditions to be met.
The environmental studies required for the simplified modalities are an Environmental Control Report, a Basic Environmental Control Plan, and a Project Characterization Report, this last one in the specific case of the Acceptance and Compliance modality only.
With one exception, these licensing modalities are all applicable to the mining industry as a whole. The exception is the Acceptance and Compliance modality, which applies only to the extraction of sand, gravel, or crushed rock, and also to diamond mining by panning only, without rock blasting.
All the licensing modalities mentioned above are already practiced in Brazil and have been for some years, though now with the addition of the necessary legal security. But the new law innovates by adding to the environmental licensing modalities a new Special Environmental Licensing for Strategic Activities or Enterprises.
In article 24, this new modality is defined as follows: "The special procedure applies to strategic activities or enterprises, as defined in a decree issued under a biennial proposal from the Governing Council, which will appoint a technical team permanently dedicated to the function." Paragraph 1 states: "The licensing authority shall give priority to the analysis and decision on the respective requests for environmental licenses for strategic activities or enterprises." activities or projects defined as strategic in accordance with the provisions of this article." The law explicitly applies Special Environmental Licensing to hydroelectric power plants, without excluding projects of other kinds.
This licensing modality aligns with several government initiatives, such as the adoption, in 2021, of a policy to support the environmental licensing of investment projects to produce strategic minerals (Decree No. 10,657) and the draft legislation in the form of Bill No. 2,780, introduced in 2024, now being debated as a matter of urgency in the Chamber of Deputies. The bill proposes to adopt a National Policy for Critical and Strategic Minerals (PNMCE), to include "support for environmental licensing and interinstitutional dialogue involving critical or strategic mineral projects and the prioritization of these projects" (article 10, paragraph 1).
In view of the new global geopolitics that is now emerging, with extreme attention focused on critical minerals, this new licensing modality has the potential to enhance Brazil's competitiveness in the production of critical and strategic minerals.
Certain restrictions apply to the environmental licensing procedures for projects located near lands occupied by an indigenous community or by a quilombola, a community of descendants of African slaves, provided in both cases that the community has gained due legal recognition. The minimum distance is defined as 8 km in the Amazon biome and 5 km elsewhere. In the case of indigenous communities, recognition is required in the form of a presidential decree or, in the case of a quilombola, an ordinance from Incra, the Land Reform Institute. In either case, the mining company is required to obtain the community's consent to its project, in the form of a document called a Free Prior and Informed Consultation.
Also worthy of attention in the new law is the broader scope given to public participation in environmental licensing procedures. The traditional public hearing, required for projects requiring an EIA/RIMA, has now been joined by a public consultation (remote participation by any interested party); by a technical input collection (remote or in-person participation by invited experts, at the request of the licensing body); by a remote or in-person participation to assist the environmental agency in decision-making). All three are applicable to any licensing modality.
These greater possibilities for public participation in environmental licensing may lead to a prolongation and greater complexity. However, even if this occurs, they bring legal certainty to the environmental agency and, consequently, to the mining company, preventing stoppages after the licensed mining activities have come into operation. Such stoppages affecting already licensed and operating projects cause harm, both economically and socially, and may result in the non-receipt of royalties and taxes, unemployment, and, of course, insecurity for investors. From this perspective, it is important to complete the discussions about the new project at the outset. In any case, the public consultation process does not suspend deadlines and target dates, since it occurs concurrently within the timeline foreseen for the licensing authority's response. The duration of the public consultation may vary from a minimum of fifteen days to a maximum of sixty days.
In short, the General Environmental Licensing Law places mining activity in the same situation as other ventures, since it does not refer environmental licensing to the resolutions of the National Environment Council or to a specific law. Despite the possibility of different laws and resolutions by state governments, the new law provides greater legal certainty to investors and companies in the mining industry.
The approval of a special licensing process for projects of strategic interest to the country, as determined by the Governing Council, opens a window of opportunity for the mining industry, especially for critical and strategic minerals, which are currently in high demand due to global geopolitics.
