THE NATIONAL PAYMENT POLICY FOR ENVIRONMENTAL SERVICES: A STEP BACKWARDS?

Abstract

The article seeks to discuss legal consequences of the enactment of Law no. 14.119/2021, “Law on Payment for Environmental Services”, whose art. 9, sole paragraph, provides for awarding Payment for Environmental Services (PES) to owners/possessors of Permanent Preservation Areas (PPA), Legal Reserves (LRA) and Administrative Limitations Areas. PPA and LRA, provided for in the Forest Code (Law no. 12.651/2012), are types of administrative limitations, operationalizing fundamental precepts of art. 225 of the Federal Constitution, referring to the ecologically balanced environment. Administrative limitations are general obligations, ensuring public interest, imposed by the State, regardless of indemnities/ compensations. The work includes analysis of art. 9, sole paragraph, Law no. 14.119/21, against the Forest Code and the Federal Constitution, regarding environmental protection. The analysis showed that Law no. 14, 119/21, providing for the PES to PPA, LRA and environmental Administrative Limitation Areas, disregarded, due to its legal nature, preserving and recovering the environment in these areas is an obligation to the owner’s right, regardless of compensation. The solution found starts from the systematic interpretation of Law no. 14.119/21, of Law no. 12.651/12 and the Federal Constitution of 1988, prevailing the obligation of owners/ possessors to preserve/recover the environment in PPAs, LRAs and Administrative Limitations Areas, regardless of PES.