Decree published that provides for the protection of natural underground cavities existing in the national territory

In brief

Decree No. 10.935/2022, which provides rules regarding the protection of natural underground cavities existing in the national territory and revokes Decree No. 99.556 of 1 October 1990, was published on 12 January 2022 (“Decree“).

More details

In short, the Decree provides more lenient measures for exploring natural underground cavities, which has triggered protests from the scientific community, especially the Brazilian Society of Speleology, and a lawsuit filed by the “Rede Sustentabilidade” Party with the Supreme Federal Court for the rules to be suspended.

Initially, the Decree allowed: (i) the existence of enterprises and activities in the areas of influence of all natural underground cavities, regardless of their degree of relevance, provided that the installation or operation maintained the ecological balance and the physical integrity of the cavity; and (ii) natural underground cavities classified with the maximum degree of relevance and their areas of influence to be subject to irreversible negative effects through environmental licensing. In a precautionary decision in the lawsuit proposed to suspend the Decree after its publication, Minister Ricardo Lewandowski of the Supreme Federal Court revoked the provisions above of the Decree on 24 January 2022.

By the minister’s decision, the effectiveness of Article 4, I, II, III and IV and Article 6 of the Decree was revoked, reestablishing the effects of the then repealed  Article 3 of Decree No. 99.556 of 1 October 1990 with the wording given by Decree No. 6.640/2008, which gives greater protection to cavities with the maximum  degree of relevance and areas of influence of the cavities

The other provisions introduced by the new Decree remain in force, at least until the final judgment of the case, such as the alteration of the requirements for classification in the maximum degree of relevance, that is, the removal of some of them and the inclusion of the condition of being “essential shelter for permanent maintenance of exceptional gathering of bats, with at least tens of thousands of individuals, and that has the trophic and climatic structure of its entire ecosystem modified and conditioned to the presence of this gathering of bats”.

The compensatory measures required for exploring natural underground cavities classified with a high degree of relevance were combined with the measures required for cavities classified with medium and low degree of relevance.

In addition, with the Decree’s publication, the classification of cavities will no longer be an initiative of the environmental licensing agency, but suggested by the entrepreneur. The environmental licensing agency will be responsible for evaluating and validating the classification proposal. Our Environment, Consumer and Sustainability team is available to provide further clarification on the subject.