Environmental licensing in the light of international courts: why Brazil must say no to the ‘Devastation Bills’

Environmental licensing is one of the key tools for protecting the environment in the context of megaprojects worldwide. Although with difficulties, it also represents a means to guarantee community participation in decisions that impact their territory and ways of life. Despite this, the term environmental licensing has been transformed, in multiple political contexts, into a synonym for inefficient, costly bureaucracy that ends up obstructing economic development.

Laws 15.190/2025 (Nova Lei de Licenciamento Ambiental) and Lei 15.300/2025 (Strategic Environmental Licensing), approved by the Brazilian Congress in 2025, are only one of the most recent attempts to translate this anti-regulatory narrative into practice. The “Devastation bills” –as Brazilian civil society has named them– replicate a growing global trend seeking to fragment, accelerate, and create unjustified exceptions to environmental licenses.

As a response to this new legislation, several environmental, indigenous, and human rights organizations from Brazil filed an unconstitutionality lawsuit before Brazil’s Supreme Federal Court. In support of this action, six INCLO member organizations from Colombia, Argentina, Hungary, South Africa, Russia, and Brazil developed an intervention demonstrating how courts in these and other countries have confirmed that the weakening of environmental licensing violates fundamental rights.

“Comparative law demonstrates that environmental licensing constitutes one of the principal mechanisms through which States exercise their positive obligations to protect individuals and communities from environmental harm. Courts have consistently recognized that potentially harmful activities must be subject to prior authorization and effective supervision, regardless of their economic or strategic importance.” This is the central argument of the organizations Conectas (Brazil), Dejusticia (Colombia), CELS (Argentina), HCLU (Hungary), LRC (South Africa), and Agora (Russia).

First, we demonstrate how the creation of categories such as “strategic importance”—which seeks to streamline the licensing process for specific economic sectors—has been considered a violation of the non-regression principle, according to which a State cannot reduce the existing level of environmental protection. Hungary’s experience has shown that designating projects as matters of “national economic importance” quickly ceases to be an exception to become standard practice (more than 80 legislative acts per year), ultimately minimizing environmental impact analyses. In that country, the use of this category increased exponentially from its creation in 2006, rising from only 1-5 annual designations to more than 80 between 2020 and 2023.

Furthermore, we argue that the effectiveness of environmental licenses depends largely on the capacity of affected persons to participate meaningfully in the decision-making process. Such participation must occur early, transparently, and inclusively. Cases such as Wild Coast in South Africa demonstrate this: when seeking to grant offshore petroleum exploration permits, authorities consulted only with traditional leaders, excluding members of the directly affected communities. In its 2022 ruling, South Africa’s Supreme Court invalidated the permits, arguing that this top-down approach has no place in a constitutional democracy.

In the same vein, when projects affect territories inhabited by indigenous communities, consultation cannot be conditioned on formal prior recognition by the State, as occurs under Brazil’s new Lei Geral do Licenciamento Ambiental. Argentina offers a precedent we cite in our intervention: the ruling “Andrada de Quispe v. Provincial State” (2006). In this case, facing a decade-long delay by the State in formalizing community property titles, the provincial government sought to justify the transfer of traditional lands to third parties and the granting of mining concessions without prior consultation under the excuse of budget constraints and lack of formalized delimitation. The Jujuy Court ensured that administrative delays by the State in formalization procedures cannot diminish indigenous peoples’ rights nor serve as justification for omitting prior consultation.

Finally, in our intervention we argue that, to fulfill its human rights purpose, environmental licensing must consider the climate change component, as requested by the organizations that challenged the constitutionality of the Devastation bills. This is what Colombia’s Constitutional Court established in Judgment C-280 of 2024, in which it ordered that climate change be mandatorily considered in environmental impact assessments prior to an environmental license. According to the Court, the constitutional right to a healthy environment cannot be effectively guaranteed if environmental authorities and communities lack information on how projects will affect the climate.

In INCLO we are convinced that environmental licensing is far more than a bureaucratic procedure. As international experience has demonstrated and courts in different tribunals worldwide have confirmed, it is the preeminent preventive tool for protecting the right to a healthy environment. Brazil, the world’s most biodiverse country and home to some of the planet’s most strategically important ecosystems, cannot become the standard-bearer of environmental devastation policies.

Download the intervention PDF Here.

Photo by: Ivars Utināns/Unsplash