June 2007

By Rodney A. Alves and Patrick Del Duca

By Presidential Decree of May 10, 2007, President Lula declared the year 2007 as “National Year of Clean Development”, with the goal “of mobilizing Brazilian society for greater engagement in actions that contribute to reduction of greenhouse gases.”  Although lacking any specifics, the declaration suggests that  President  Lula’s  administration desires to emphasize the role of the Brazilian federal government in raising environmental consciousness.  

Among the decree's likely implications are further attention to the consequences of the expansion of ethanol production. Brazil and the United States are the world's current leaders in production, although Brazil produces ethanol from sugar cane, while the United States produces it principally from corn.  In addition to the perceived benefits of substituting ethanol for fossil fuels, the consequences of expanded ethanol production in Brazil include increasing the land devoted to cane cultivation and the concomitant practice of burning open fields to facilitate harvest.  In 2006, for example, about 10% of the 25 million hectare surface area of the state of São Paulo was burned in connection with sugar cane field management.

Although regulation of air pollution issues falls principally within the authority of Brazil's states rather than its federal government which President Lula heads, the President's decree may inspire further attention to these issues.  For example, Law nº. 11.241 of September 19, 2002 of São Paulo state, which hosts the vast majority of ethanol mills in Brazil, contemplates a continuous ratcheting down of the percentage of harvested area subject to burning, with a complete phase out in flat areas by 2021, and in areas not suitable for mechanized cultivation by 2031.  A protocol just signed by Unica (União da Indústria de Cana-de-Açúcar, the influential São Paulo-based sugar cane industry trade association) and the Governor of São Paulo state, commits sugar cane growers to end the practice of burning flat fields by 2014, and sloped areas by 2017.  Although compliance with the protocol is voluntary, the state government contemplates legislation to render it law. 

Contributors:  Rodney Almeida Alves, ManattJones Global Strategies, Los Angeles, CA; Juliana Martines, Felsberg e Associados Law Firm, São Paulo, Brazil; and Patrick Del Duca, Manatt, Phelps & Phillips, Los Angeles, CA.

As published in the ABA International Latin America & Caribbean Committee's Latin American Legal Developments Newsletter.  For more information about ABA International, please visit the Section website at www.abanet.org/intlaw.