A still controversial 2012 update to the Brazilian Forest Code that reduced the area required for legal reserves on rural private properties is endangering more than 15 million hectares (57,915 square miles) of Amazon forest, an area roughly the size of the U.S. state of Georgia, according to a recent study.

Under the 2012 New Forest Code changes, Amazon states that have protected at least 65 percent of their territory as conservation units or indigenous reserves can reduce the percentage of native vegetation required to be conserved on private lands, which could lead to even larger increases in Amazon forest loss in those states.

The updated 2012 code also pardoned illegal deforestation that occurred prior to 2008, leading to concerns among conservationists that such amnesties give private landowners a greenlight to clear native vegetation on their properties with impunity. Some analysts expect more deforestation pardons in the future.

Rather than changing Brazil’s laws, say experts, what is needed to curb Amazon deforestation is a sea change in Brazilian culture – ceasing to prioritize industrial agribusiness above conservation and other socioeconomic goals. Such a shift seems unlikely under President Bolsonaro, except via international market forces.

Over 15 million hectares (57,915 square miles) of Amazon forest stand to lose their protected status as a result of changes to Brazil’s 1965 Forest Code, according to a study published in Nature Sustainability. Significant revisions to the law in 2012, and further changes approved by the Supreme Court last year, could allow rural landowners to clear large areas of privately-owned native vegetation that previously had to be conserved.

The Brazilian Forest Code of 1965 mandated that private landowners, depending on the state in which they lived, set aside between 20 and 80 percent of native forests and savannas on their rural properties as “legal reserves.” The law has been lauded for its stringent conservation of Amazon forests; as a legal mechanism, it is still considered the largest single protector of private property forests required by any nation on the planet.

However, a 2012 legislative update that reduced the area required for legal reserves on rural private properties within states that have already protected at least 65 percent of their total territory as conservation units or indigenous reserves could actually reduce the total forest area protected nationwide, researchers say.

Flavio Freitas from KTH Royal Institution of Technology in Stockholm, Sweden and colleagues combined national data on land tenure, rural properties and settlements, with official statistics on national- and state-level conservation units, indigenous reserves and military land, to create a map of private and nationally protected land in what is known as Legal Amazonia.

The authors modelled the effect of implementing Article 12(5) of the 2012 New Forest Code under two scenarios – a conservative scenario where protecting native vegetation is prioritized, and a worst-case scenario assuming landowners take full advantage of leniencies introduced into the code after 2012.

Article 12(5) of the New Forest Code reduced the legal reserve requirement in Legal Amazonia from 80 percent to 50 percent, provided that at least 65 percent of a state’s territory is allocated as either as nature reserves known as conservation units or as indigenous reserves.

Counterintuitively, this means that significantly increasing the area preserved as conservation units or indigenous reserves within a state results in a net decrease in protected land once a state passes the 65 percent protection threshold, and reductions in private land protections are taken into consideration.

As a result, passing the 65 percent state land protection threshold could more than double the area of unprotected land on private property in any given state, the team reported. Across Legal Amazonia, this could endanger between 6.5 and 15.4 million hectares (25,097 – 59,460 square miles) of native vegetation.

These native vegetation losses don’t only impact Brazil, but have repercussions for global climate change: if these additional private lands are cleared, the researchers estimate that between 0.8 and 2 gigatons of carbon would be released into the atmosphere rather than being sequestered in native vegetation and soils.

Around 80 million hectares (308,882 square miles) of land in Brazil is currently undesignated, with no clear land rights, and some conservationists fear this unclaimed land may be converted into conservation units and indigenous reserves, freeing previously protected legal reserves on rural properties.

However, Freitas argues for conserving as much of this 80 million hectares as possible. “Although it may sound contradictory, quick expansion of CU & IRs [conservation units and indigenous reserves] would be the most effective way to preserve biodiversity and prevent greenhouse gas emissions,” he said. Under this sequence of events, CUs and IRs would be created on 97 percent of the remaining undesignated land in Amazonas and Amapá, simultaneously removing protection from 4.6 million hectares (17,761 square miles) and 0.5 million hectares (1,931 square miles) of forest currently held in legal reserves on private property, respectively. However, the researcher says, this rapid expansion of state protected areas would minimize any potential rush to buy up large rural properties that could later be converted to farmland once the 65 percent threshold is met.

Freitas admits this is not the most likely scenario: “If [the] Bolsonaro government follows its campaign promises, conservation units and indigenous reserves will most likely not be expanded, leaving 80 million hectares of undesignated land… available for illegal and often violent land grabbing,” he warned.

The 1965 Brazilian Forest Code (Lei 4.771) initially required private landowners to set aside at least 50 percent of their property for native vegetation, but in 1996 this figure was increased to 80 percent for Legal Amazonia forest properties, causing fury among agricultural producers and agribusiness lobbying groups.

The latest amendments, made in 2012 as part of the Native Vegetation Protection Law (NVPL), commonly referred to as the New Forest Code (Lei 12.651), were included at the behest of Amapá, a state in the Northern part of the Brazilian Amazon. Amapá is one of the country’s smallest states, covering 142,814 square kilometers (55,141 square miles) – just 2.8 percent of Legal Amazonia, but the majority of the state is already protected in reserves and conservation units.

The New Forest Code has been embroiled in a legal battle over its constitutionality with the General Attorney’s Office (Procuradoria Geral da República), the Federal Public Ministry (MPF, state and federal independent litigators), and the left-wing Socialism and Freedom Party (PSOL) ever since its inception in 2012. In February of last year, Brazil’s Supreme Court ruled in favor of many of the provisions of the New Forest Code, including relaxation of legal reserve rules, angering conservationists.

“Ultimately, none of these [legal] limits work in practice given the tremendous power of the rural caucus in Congress,” said Carlos Nobre, a respected climate scientist at the World Resources Institute. The rural caucus represents the ruralistas, a dominant group of wealthy rural large-scale landowners with major agribusiness and mining interests.

The 2012 New Forest Code, for example, as legislated by the congressional rural caucus, included an amnesty on illegal deforestation prior to 2008 – landowner pardons which were upheld by the Supreme Court last year. Conservationists warn that such amnesties give farmers and illegal loggers the greenlight to clear native vegetation with impunity. Indeed, Nobre believes that another congressional deforestation pardon may be awaiting in the wings, with a new amnesty that forgives those who violated the 2012 version of the code. Under the agribusiness-friendly Bolsonaro administration, worries of leniency are expected to deepen.

Revision and toughening of federal and/or state environmental laws is needed to prevent the erosion of current legal reserves, said Freitas, but he predicts that “there won’t be a favorable political environment for such a revision in the coming years.”

Nobre points to a flaw in the reasoning used by the recent study, noting that the researchers assume loggers respond to changes in forest laws, which ignores the fact that as much as 70 percent of Amazon deforestation occurs illegally. “All the calculations take for granted that landowners abide by the law,” he said. If that were the case, the New Forest Code would result in a large increase in deforestation rates, just as the study projects. However, though Article 12(5) will likely increase the pace of forest clearing, Brazil’s “laws were never a definitive impediment for continued deforestation.”

Rather than changing the nation’s laws, say researchers, what is needed to effectively curb Amazon deforestation is a sea change in Brazilian culture – ceasing to prioritize large-scale industrial agribusiness above conservation and all other economic and social goals.

Frietas does feel that incentives such as the United Nations’ REDD+ initiative (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries), could help incentivize rural landowners to voluntarily preserve more of their lands in native vegetation.

The study authors say that future market pressures could be crucial in shaping how Brazilian property owners respond to the New Forest Code – if the response of global consumers to escalating Amazon deforestation negatively impacts the bottom line of Amazon agricultural producers, then they may choose to maintain legal reserves regardless of Forest Code regulations.

“Zero deforestation commitments from private [commodities] companies would be crucial to creating barriers for products coming from deforestation zones,” said Freitas. In fact, one of the most successful past examples for reducing Amazon deforestation was the 2006 Amazon Soy Moratorium, a voluntary partnership between transnational commodities companies, growers and the government.

But, Freitas admits, “the current scenario is very worrisome.” He fears that the Bolsonaro administration will allow agribusiness and mining to expand widely in the Amazon, that it will weaken and end government partnerships with conservation NGOs, and it will axe satellite deforestation monitoring programs such as PRODES and TerraClass, a project run by the Amazon Regional Center (CRA) and the Brazilian Agricultural Research Corporation (Embrapa), which maps land use changes based on satellite data. All of this, he says, will “reduce the capacity of civil society in Brazil to advocate for the preservation of the Brazilian Amazon.”

The Bolsonaro administration responded to Mongabay’s queries for this article, saying, “The Ministry of the Environment does not comment on external studies.” In its refusal to address new research findings, the government failed to answer a significant policy question unrelated to the study, as to whether it has “plans to make new changes in the Forest Code.” It also failed to answer Mongabay’s question: “Since 2018, deforestation in the Brazilian Amazon reached its highest rate in a decade; what plans does the government have to ensure that remaining native vegetation is protected?”

Banner Image: Rhett A. Butler / Mongabay.

Citation

Freitas, F. L., Sparovek, G., Berndes, G., Persson, U. M., Englund, O., Barretto, A., & Mörtberg, U. (2018). Potential increase of legal deforestation in Brazilian Amazon after Forest Act revision. Nature Sustainability, 1(11), 665.

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