Introduction
This
article examines legislation and practice concerning Brazil's EIA process for
hydrocarbon projects in the context of SD. The EIA process considers the high environmental,
social, and economic costs and benefits from a proposed project, alternative
approaches, and impact mitigation measures.[1] As Hunter et al. argue, one
of the main purposes of EIAs is to inform the public about proposed projects
and involve them in meaningful discussions on the potential benefits and
environmental and social impacts.[2]
Equally important is the identification and deployment of safeguards to
mitigate adverse environmental impacts from the proposed activity.[3]
Initially,
the US National Environmental Policy Act of 1969[4] required EIAs for federally
funded or supported projects in the USA. Canada, Australia, New Zealand, West
Germany, and France adopted EIA systems in the 1970s.[5] The
approval of the EC Directive on Environmental Impact Assessment in 1985[6]
prompted a proliferation of EIAs in Europe. Brazil adopted its main EIA
regulatory framework in 1986 through CONAMA Resolution 1/86, which remains the
core EIA regulation in Brazil.[7]
Brazil is an important oil and gas-producing nation. Glasson and Salvador note
that Brazilian EIA law has both its strengths and weaknesses.[8] This
article examines the merits and challenges that need to be addressed by the
Brazilian government in the EIA framework and process to further SD. Section 1
discusses oil and gas E&P activities in Brazil, and Section 2 assesses
their potential adverse impacts. Section 3 examines the key elements of SD that
will inform the analysis of the EIA framework in the context of Brazilian oil
and gas E&P activities. Section 4 assesses the main environmental laws that
govern oil and gas E&P activities in Brazil. Finally, Section 5 examines
the extent to which the EIA process supports SD, evaluates possible lessons
from Australia, and provides recommendations that can further SD.
1. Oil
and Gas E&P Activities in Brazil
According
to the data released by the National Agency of Petroleum, Natural Gas and
Biofuels (ANP) in June 2025, offshore fields in Brazil contributed 97.6 per
cent of oil production and 87.1 per cent of natural gas production.[9]
The data further provided that total national production (oil + natural gas),
including pre-salt, post-salt, and onshore, was 4.689 million boe/d.[10]
In
an earlier ANP report in April 2025, Brazil’s oil and gas production rose by
9.3% in March 2025 compared to the same period in 2024, reaching 4.515 million
barrels of oil equivalent per day (boe/d). This growth was largely driven by
pre-salt fields, which accounted for 75.7% of total production, about 3.42
million boe/d, mainly from the state-owned Petróleo Brasileiro S.A. (Petrobras)
operated platforms in the Santos and Campos Basins.[11]
Petrobras, created in 1953, is the leading participant in the petroleum sector.
Fields operated by Petrobras, alone or in consortium with other companies,
accounted for 89.76% of the total production.[12] These figures illustrate
why offshore development, especially in the pre-salt deep water region, is
central to Brazil’s hydrocarbon agenda.
The
first Brazilian oil reservoir was discovered in 1938. Until the 1960s, oil
activities in Brazil were insignificant due to the lack of technology to
explore for oil.[13]
Oil exploration and its related activities in Brazil have always been treated
as a strategic sector for economic development and national energy security.
Therefore, whether it takes a nationalistic or a more liberal economic
approach, since the beginning of oil exploration, the government has exercised
control over the hydrocarbon industry through Petrobras as a state monopoly.[14]
The
1988 Constitution significantly changed the legal regime regulating the
hydrocarbon sector. The Constitution established a constitutional basis for
EIA, making Brazil one of the few countries to embed EIA requirements at the
highest legal level. Article 225, paragraph 1, clause IV, mandates that any
work or activity potentially causing significant environmental degradation must
undergo a prior environmental impact study, which must be made public and
follow procedures set by law. Following a nationalistic perspective, the
Constitution restrained the participation of foreign investors in oil
activities.[15]
Article 177, paragraph 1, established a prohibition on risk service contracts
or any other agreement with private companies for oil exploration, and the
Brazilian Government assumed all the technical and financial risks related to
oil activities, thereby reaffirming the federal monopoly of the sector.[16]
However, in light of increased global competition for oil and gas investment,
the National Government in 1995 amended the Federal Constitution to create a
new regulatory framework for oil and gas E&P activities.[17] Even
though the government has maintained a monopoly on development, the
constitutional amendment allowed private corporations to explore for
hydrocarbons under concession agreements.[18] The concession model
between the oil companies and the federal government was consolidated through
the adoption of Federal Law 9478 in 1997, which established the ANP.[19]
Pre-salt
offshore findings along the coastal states of Espírito Santo, Rio de Janeiro,
and São Paulo have significantly increased the oil production in Brazil.[20]
In 2010, the Government passed legislation instituting a new regulatory
framework for the country’s pre-salt reserves. The state-owned Pre-Sal Petroleo
S.A. (PPSA) - created by Decree No. 8.063 of August 1, 2013 - was responsible
for managing new pre-salt production and trading contracts in the hydrocarbon
industry. The framework established a new development fund to manage Government
revenues from pre-salt oil and a new production-sharing agreement (PSA) system
for pre-salt reserves. Petrobras is the sole operator of each PSA, holding a
minimum 30% stake in all pre-salt projects.[21]
2. Harmful
Environmental Impact from Oil and Gas E&P Activities
As
with other hydrocarbon-producing nations, environmental impacts from operations
in Brazil can include harmful effects on air, land, and water quality,
greenhouse gas emissions, waste discharges, and oil spills. Spills from
offshore oil activities have caused significant damage to the marine
environment and adjacent communities.
ANP
reported a record 731 environmental accidents or an average of two accidents
per day in the Brazilian offshore oil and gas sector during 2024, surpassing
the previous year’s record high.[22]
ANP said the record number of accidents in 2024 was “a consequence of increased
activity in the country, with the entry of several production units as well as
the strong resumption of exploration and drilling of new wells.”[23]
Almost 53% of the incidents occurred during production installation (384),
followed by installation of drilling rigs (134), offshore support vessel
activity (91), issues with well exploration (91), installation of subsea
systems (23), and other cases of undetermined origin (8).[24]
Brazil’s
heavy reliance on offshore oil, driven by prolific pre‑salt reserves and
technical expertise, is a rational economic strategy. Offshore operations
deliver scale, energy security, and export potential. However, this evolution
from historical localized spills to modern large-scale offshore spills
emphasizes the need for strengthened EIA processes, emergency preparedness, and
meaningful stakeholder inclusion, particularly in ecologically and socially
sensitive frontier areas.
Just
recently, Brazil auctioned off several land and offshore potential oil sites
near the Amazon River as it aims to expand production in untapped regions
despite protests from environmental and Indigenous groups. This region is
considered to have high potential risk due to strong currents and the proximity
to the Amazon seashore.[25]
These developments highlight the need for stronger regulatory oversight and
environmental safeguards in oil and gas E&P activities.
3. Sustainable
Development and Brazil’s EIA Framework
To
evaluate the extent to which Brazil’s environmental legislation is sufficiently
robust to face the challenges imposed by the rapid developments in the oil and
gas sector, this article will assess whether the Brazilian EIA framework
supports SD. According to the United Nations (UN), SD is the development that
meets the needs of the present without compromising the ability of future
generations to meet their own needs.[26]
For SD to be achieved, it is crucial to harmonize three core elements: economic
growth, social inclusion, and environmental protection.[27] These
elements are interconnected, and all are critical for the well-being of
individuals and societies.
The
analysis will focus on the following four key elements of SD based on the UN
propositions from the 20th century:
Respect
for ecological integrity: Ecological systems consist of micro-organisms,
plants, animals, soil, water, air, and other components. Regulatory systems
that respect ecological integrity prevent irreversible harm to the
above-mentioned natural resources, enabling "ecosystems to renew
themselves”.[28]
Support
for inter-generational equity: Promoting inter-generational equity contemplates
the broad distribution of the benefits and environmental and social costs of
oil exploration activities between current and future generations. What is
equitable is a value judgement, but the basic principle is that broadly
distributing costs and benefits will minimize social conflict. The 3rd
Principle in the Rio Declaration on Environment and Development provides that
“[t]he right to development must be fulfilled to equitably meet development and
environmental needs of present and future generations”.[29]
Meaningful
stakeholder participation in the EIA process: Agenda 21 provides that
meaningful public participation is a sine qua non for sustainable development.[30]
Public participation in the EIA process provides an opportunity for affected
persons to learn about the beneficial and negative impacts of the project,
voice their concerns, and contribute ideas to minimize the negative impacts.
Information contributed by stakeholders can lead to better-informed decisions
that may mitigate the negative environmental impacts and reduce social
conflict. After stakeholders have had the opportunity to express their
opinions, they may be more inclined to accept the final decision about the
project.
Stewardship:
This requires broad awareness of SD objectives among government
decision-makers, corporations, and individuals, and concerted action to promote
SD. Those persons charged with managing and regulating hydrocarbon projects
need to do so in an environmentally responsible manner.
It
is worth noting that Principle 17 of the Rio Declaration on Environment and
Development, adopted at the 1992 Earth Summit in Rio de Janeiro, provides that
EIA, as a national instrument, shall be undertaken for proposed activities that
are likely to have a significant adverse impact on the environment and are
subject to a decision of a competent national authority. Brazil not only
co-authored this declaration but also enshrined its core tenets in Article 225,
paragraph 1(IV) of its 1988 Constitution, which requires a prior environmental
impact study for activities that may significantly degrade the environment.
However,
the increasing scale of Brazil’s offshore oil and gas development, particularly
in pre-salt basins and ecologically sensitive zones like the Amazon mouth,
raises serious concerns about the alignment of EIA practices with both Rio
Principle 17 and Brazil’s updated Nationally Determined Contributions (NDCs)
under the Paris Agreement. In 2023, Brazil updated its NDC, pledging 48%
emissions reductions by 2025 and 53% by 2030 relative to 2005 levels,[31] and
reaffirming a path to net-zero by 2050 goals, solidified at COP28 and
reiterated at COP29 in Baku.[32]
Moreover,
Brazil has recently opened new offshore blocks near the Amazon, despite
environmental and Indigenous opposition raising questions about whether EIAs
are effectively safeguarding ecological integrity and intergenerational equity.
To truly fulfill its obligations under the SDGs (notably
SDG 13, 15, 16), the Paris Agreement, and its own NDC,
Brazil’s EIA must integrate climate impact assessments, cumulative GHG
analysis, and enhance transparency, consultation, and governance safeguards.
Otherwise, its EIA system risks becoming a procedural checkbox rather than a
tool for sustainable, climate-aligned development.
4. Environmental Laws Related to Brazil’s
Oil and Gas E&P Activities
The
assessment of the effectiveness of the EIA system in supporting SD will require
a close analysis of the main environmental laws that govern oil and gas E&P
activities in Brazil, including:
i.
1988 Brazilian 1988 Constitution.
ii.
Federal Laws: Law 6.938/81, Law 9.478/97, Law
9.985/00, Complementary Law 140/2011.
iii.
Administrative Rules: CONAMA Resolutions 01/86,
237/97, 23/94 and 265/2000, and MMA Ordinance 422/2011.
4.1. Constitutional Provisions
The
1988 Constitution dedicates an entire chapter to the environment, including
Article 225 and its paragraphs.[33]
The chapter of Article 225 of the 1988 Constitution states:
“All
have the right to an ecologically balanced environment, which is an asset of
common use and essential to a healthy quality of life, and both the Government
and the community shall have the duty to defend and preserve it for present and
future generations”.[34]
Therefore,
the 1988 Constitution expressly promotes intergenerational equity in alignment
with the core elements of SD. Article 225, paragraph 1 (IV) of the 1988
Constitution, also reinforces sustainable development goals by requiring a
prior environmental impact study for the installation of works and activities that
may cause significant degradation of the environment.[35] Besides,
Article 225, paragraph 4 demands that the exploration of activities in
protected areas, which are part of the national patrimony, must observe the
preservation of the environment.[36]
These
constitutional provisions are of great importance in the context of Brazil’s
most recent pre-salt oil and gas E&P activities, which are being developed
in ecologically sensitive areas like the Amazon basin, raising serious concerns
about their potential to cause substantial harmful effects on the environment.
4.2. Federal Laws
Four
federal laws regulate environmental matters that are relevant to offshore
activities. These are Law 6.938/81, Law 9.478/97, Law 9.985/00, and
Complementary Law 140/2011.
Law
6.938/81 was considered a pioneer step in national public life, regarding the
dynamics of the environmental reality.[37] It established a National
Environmental Policy (PNMA - Política Nacional do Meio Ambiente), designed to
preserve, enhance, and restore environmental quality. Art. 6 of Law 6.938/81
introduced the National Environmental System (SISNAMA), composed of municipal,
state, and federal agencies, including:
The
National Environmental Council (CONAMA), which has a collegial organization
structure and is a deliberative and consultative organ of SISNAMA responsible
for establishing standards and criteria for the issuing of licenses for
activities that effectively, or potentially, pollute the environment;
deliberating on the contents of resolutions, propositions and motions to comply
with the objectives of the National Environment Policy; and creating
regulations.[38]
The
Brazilian Institute for Environment and Renewable Resources (IBAMA). IBAMA is a
federal autarky instrument of public law that has managerial and financial
autonomy. Its mission is to “protect the environment and ensure sustainability
in the use of natural resources to promote an environmental quality appropriate
to life.”[39]Among
its objectives are the coordination and implementation of environmental
policies. As an executive institution, it works under the authority of the
Ministry of Environment and Climate Change (the central organ of the system).
Article
9 of Law 6.938/81 sets the PNMA instruments, which include:
_
setting environmental quality standards.
_
assessing environmental impacts.
_
licensing and revising the effective or potentially polluting activities.
It
must be noted that among the innovations under Law 6.938/81, the regime of
strict civil liability is of great value. Under Article 14, the duty to
compensate for environmental damage does not require proof of fault on the part
of the polluter but only proof of environmental damage and a causal link.
Besides, the obligation to repair or indemnify may be jointly and severally
borne by whoever has directly or indirectly contributed to the occurrence of
the environmental damage, regardless of the degree of participation of the
agent.[40]
Moreover, the Federal Supreme Court (STF Theme No. 999) has already established
that there is no statute of limitations for civil liability for environmental
damage. Therefore, under the Brazilian legislation and jurisprudence, the civil
liability for environmental damage is strict, joint and several, and unlimited.
Although
the importance of Law 6.938/81 for the protection of the environment,
especially regarding the establishment of a holistic approach based on the
principle of SD, this legislation does not contain any specific provision
related to environmental aspects of oil and gas activities. Thus, environmental
regulation regarding hydrocarbon activities, onshore and offshore, is left to
CONAMA, which is the environmental organ responsible for establishing rules and
general criteria to be adopted for licensing activities affecting the
environment.
Law
9.478 (Petroleum Law) is another relevant legislation in the context of oil and
gas E&P activities in Brazil. The Petroleum Law was adopted in 1997 to
regulate the concession of oil activities to private companies, as required
under Article 177, paragraph 1 of the 1988 Constitution. This law regulates the
National Energy Policy and establishes the ANP, which is responsible for
regulating activities that integrate the Brazilian oil, natural gas, and
biofuels industries and issuing exploration and production licenses.[41]
Chapter 1 of Law 9.478/97 contains the principles and objectives of the
National Energy Policy and specifically refers to environmental protection as
one of its objectives.[42]
Article 8 states that the ANP must observe compliance with the best
practices regarding the protection of the environment.[43] Moreover,
in the context of concession contracts, Article 44 of the Petroleum Law
requires the oil and gas industry to adopt necessary measures to both conserve
natural resources and protect the environment.[44] Under this provision, the
industry must adhere to the environmental rules and obtain the required
environmental licenses to start its activities.[45] In
addition, the industry is obligated to adopt the best practices of the
international oil industry and obey the rules and the applicable technical
procedures.[46]
Although the environmental protection rules are not organized systematically in
the Petroleum Law, environmental provisions can be found in many parts of the
legal document. Therefore, regulation of oil and gas E&P activities
affecting the environment can be exercised by either the regulatory agency,
ANP, or the environmental organ, IBAMA.[47]
Law
9.985/00 regulates Article 225 of the 1988 Constitution, establishing the
National System for Nature Conservation Units. The creation of nature
conservation units seeks to ensure the sustainable use of natural resources in
these areas, which include marine extractive reserves.[48] This
legislation plays an essential role in pre-salt oil exploration, where,
recently, the concession of blocks within some traditional conservation units
has threatened these crucial, environmentally protected areas.
Lastly,
Complementary Law No. 140 of 2011 (Lei Complementar nº 140/2011)[49]
stands out as a turning point in Brazil’s environmental governance.
Passed to bring order to what was once a complex and overlapping regulatory
landscape, this law gave teeth to the 1988 Constitution by clearly distributing
environmental responsibilities among the federal, state, and municipal
governments.
Before
its enactment, developers and regulators often grappled with bureaucratic
confusion, unsure who had the final say on environmental matters. We can
imagine the possible delays, inconsistent licensing outcomes, and an erosion of
trust in the system that such confusion can come with. However, LC 140/2011
proposes to change that by not only defining who does what but also ensuring
that environmental authority can be exercised more transparently and
effectively across Brazil.
At
its core, the law outlines who licenses what in Articles 7-9. The federal
government handles projects with national or cross-border significance, such as
pipelines running across states or large-scale hydrocarbon developments. States
oversee regionally impactful projects, and municipalities are tasked with
licensing activities of local significance. This eliminates the problem of
“forum shopping,” where project proponents might try to obtain a more favorable
license from a more lenient authority. Instead, each tier of government now
knows its lane. The law does not just divide responsibilities; it also
encourages collaboration. Through shared databases, coordinated inspections,
and technical cooperation, LC 140/2011 nudges different levels of government
toward working together rather than stepping on each other’s toes as provided
in Articles 2 and 14. And perhaps most importantly for industries like oil and
gas, mining, and large infrastructure, it streamlines the licensing process in
Articles 13-17. No more three-level sign-offs or conflicting requirements: just
one competent authority, with checks and balances in place. The law also
reinforces cooperation in environmental enforcement, especially when
environmental damage spills across jurisdictions.
In
conclusion, Complementary Law 140 has helped Brazil move toward a more coherent
and predictable environmental licensing regime, one that not only safeguards
the environment but also supports sustainable economic development by reducing
legal uncertainty and improving institutional efficiency.
4.3. Administrative Rules: Environmental
Licensing and EIA for Offshore Oil Exploration Activities
Environmental
licensing is an administrative procedure to control activities that may
interfere with the environment and establishes rights and duties for the
exercise of the licensed activities.[50]
EIA is a crucial tool in the environmental licensing process. It seeks to
guarantee, at the early project stage, a systematic evaluation of the
environmental impacts that may be caused by activities and projects for
significant potential environmental degradation and provide alternatives to
minimize environmental damage, at the end of the process.[51] It
is considered to be one of the most “remarkable instruments to manage
socio-economic development through the preservation of the environmental
quality, since it must be completed before the installation of the construction
site or of the activity that might be the potential cause of significant
degradation.”[52]
The significance of an EIA regarding oil and gas E&P
activities is clear not only because of the potential, inherent, and
irreversible environmental impacts that these activities can cause, but also
because of the concerns of stakeholders such as local communities, the fishing
industry, and the tourism industry. EIAs evolved in Brazil in response to
energy development projects in the 1970s, particularly as a condition of the
World Bank to finance large hydroelectric power plants.[53]
However, it was not before 1983 that polluting sources required an EIA.[54]
Before
Law 140/2011 was enacted, the environmental licensing and EIA process in Brazil
was mainly regulated by CONAMA’s Resolutions. Five relevant resolutions must be
evaluated for this article: CONAMA Resolutions 01/86, 237/97, 23/94 and
265/2000, and MMA Ordinance 422/2011.
CONAMA
Resolution 01/86 is the major EIA regulation that provides for completion of an
Environmental Impact Study (EIS) and its related Environmental Impact Report -
known as EIA/RIMA - in accordance with art. 225, paragraph 1 (IV) of the 1988
Constitution.[55]
Article 2 of the Resolution – supplemented by CONAMA Resolutions 011/86 and
005/87 - lists among activities that may potentially cause significant
degradation of the environment and therefore are subject to EIA/RIMA, the
petroleum exploration.[56]
Article 5 of the Resolution provides for the general directives that EIA/RIMA
should follow. These include, at a minimum:
(i)
contemplating all the technological and location
alternatives of the project and comparing them to a hypothetical non-execution
of the project,
(ii)
identifying and systematically evaluating the
environmental impact generated during the implementation and operation phases
of the activity,
(iii)
defining the limits of the geographical area directly
and indirectly affected by the impact and considering the hydrographic basin in
which it is located.[57]
Therefore,
CONAMA Resolution 1/86 establishes the foundational elements of the EIA, such
as “the minimum content of EIS, public consultation, the need to consider both
direct and indirect impacts as well as both adverse and beneficial impacts,
mitigation and monitoring requirements.”[58]
Following international EIA practice, the Brazilian process incorporates seven
key stages: screening, scoping, EIS preparation, public hearings and
participation, EIS review, a final statutory decision, and follow-up.[59]
Screening
involves an examination of the project by the Ministry to determine whether the
project is one for which an EIA is required (according to CONAMA Resolution
1/86), or exempted, or one in which an EIA may not be carried out.
In
the scoping stage, the proponent is expected to map out the scope of the
intended EIA. This involves identifying the project's potential impacts to
determine whether they are beneficial or adverse. At the scoping stage,
Resolution 1/86 does not require preparation of Terms of Reference for an EIS,
nor does it require public participation (with a few exceptions).[60]
During
the EIS preparation stage, consultants may adopt a variety of EIS methods,
terminology, and structure due to a lack of guidelines. [61] Social and
cultural impacts are usually not properly considered in the EIS. Furthermore,
mitigation measures are frequently presented conceptually and only considered
later in an environmental management plan.[62]
Public
participation will be required only during the EIS review. In this stage,
proponents must provide additional information or modify the project to avoid
or mitigate adverse impacts.[63]
Once
the project is approved, the environmental agency grants a preliminary license.
The licenses issued during the process will be conditional on mitigation and
compensation measures and monitoring programs.[64] They will need to be
periodically renewed.
CONAMA
Resolution 237/97 is the most important of the Resolutions concerning
environmental licensing for activities that may cause environmental
degradation.[65]
The Resolution establishes specific rules for environmental licensing,
providing minimum guidelines to be complied with during the process. Article 3
of Resolution 237/97 also prescribes that the environmental licensing of
activities that may cause significant adverse impacts on the environment will
depend on a previous EIA/RIMA. Article 4 of the Resolution provides that
environmental licensing of works and activities that may have a significant
environmental impact in national or regional territory is under IBAMA
jurisdiction. This involves activities that occur in the territorial sea,
continental shelf, or exclusive economic zone.[66]
Therefore, according to Resolution 237/97, granting environmental licenses for
offshore oil activities falls to IBAMA, the governmental institution
responsible for implementing environmental policies aligning with Complementary
Law 140/2011’s multi-level governance structure.
According
to Article 8 of CONAMA Resolution 237/97, the Brazilian government can issue
the following three types of licenses:
(i) preliminary
licenses that approve concept projects and locations.
(ii) installation
licenses that authorize the setting up of the proposed activities.
(iii)
the operation license that authorizes the
commencement of the project. Article 10 of CONAMA Resolution 237/97 details the
licensing procedure.
CONAMA
Resolution 23/94 aims to set up particular environmental licensing criteria in
order to provide better control and environmental management for oil and gas
activities, both onshore and offshore.[67]
Article 3 of CONAMA Resolution 23/94 states that “the exploration for and
mining of deposits of liquid fuels and natural gas shall depend on prior
environmental licensing in terms of this Resolution”.[68]
These activities involve:
(i) the
drilling of wells for the identification of deposits and their extent.
(ii) testing concerning
economic viability.
(iii)
effective production for commercial purposes.[69]
Article
5 of CONAMA 23/94 establishes that the following licenses shall be expedited:
(i) preliminary
license for drilling.
(ii) preliminary
production license for research.
(iii)
installation license.
(iv) operating license.
For
each phase of the oil project, a different environmental licensing and
environmental study is required. For drilling activities, a less comprehensive
study, known as the Environmental Control Report, is needed. However, it must
contain a description of the drilling activity, environmental risks, and the
identification of impacts and mitigating measures.[70]
In a time when more countries require an environmental impact study for all
stages of E&P projects, we submit that a comprehensive environmental study,
such as the EIA, should be considered for offshore drilling activities as well.
These activities can cause several serious environmental impacts. Furthermore,
it is important to note that Resolution 23/94 does not refer to the licensing
of seismic activities. There have been criticisms of whether this Resolution
has been effective in establishing standards to protect environmental quality
and efficiently control water and air pollution.[71]
CONAMA
Resolution 265/2000 strengthens public participation in Brazil’s environmental
licensing process by requiring public hearings specifically for oil and gas
exploration and production activities in marine and coastal environments,
including bays, estuaries, and the continental shelf. It builds upon the
general framework established by CONAMA Resolution 23/94, tailoring it to the
unique environmental risks posed by offshore petroleum operations.
Finally,
MMA Ordinance No. 422/2011 was issued by the Ministry of the Environment and
Climate Change on October 26, 2011. As provided in Article 1, it regulates the
environmental licensing of oil and natural gas exploration and production
activities that are under federal jurisdiction, including projects in
marine environments, transition zones, and continental platforms.
Article
2 provides the scope of application, which includes seismic surveys (2D,
3D, 4D), perforation of exploratory and production wells, long-term testing,
installation and operation of production systems, decommissioning of facilities,
and support structures like pipelines, terminals, and platforms. Article 3
stipulates that activities must follow the three-phase licensing system: preliminary
license, installation license, and operating license. Articles 4-7 state that
environmental studies must be conducted, and EIA/RIMA is required where
applicable. Also, Terms of Reference (ToR) are provided by IBAMA, and public
hearings may be required. Furthermore, Article 8 provides that environmental
licenses can cover drilling polygons, areas that include multiple wells,
streamlining licensing for offshore activities. Articles 9-13 state that licenses
must include environmental management conditions and IBAMA, the responsible
authority for licensing, must monitor compliance.
The
Ordinance formalizes offshore EIA practices, standardizing how Petrobras and
other companies are regulated and encourages transparency and public
participation, aligning with Principle 17 of the Rio Declaration. The Ordinance
clearly allocates licensing roles to IBAMA for offshore hydrocarbon activity,
aligning with Complementary Law 140/2011’s multi-level governance structure.
However, it lacks detailed decommissioning procedures and monitoring mechanisms
during long license periods.[72]
5. The EIA Process and Sustainable
Development
This
section examines the extent to which the Brazilian EIA process supports or
undermines SD. Notwithstanding Brazil’s comprehensive environmental laws
discussed above and long-standing EIA practice, the extent to which the EIA
process supports SD is limited and should be strengthened.
5.1. Limited Baseline Data Undermines
Evaluation of Environmental Impacts
To
support more SD by mitigating the adverse environmental impacts from oil and
gas E&P activities through the EIA, respect for ecological integrity is
important. Reliable baseline data is required to effectively evaluate the
impacts of oil and gas E&P activities.[73] Numerous scholars have
identified the absence of baseline data in developing countries as a
significant hindrance to the completion of effective EIAs. Wood, for instance,
has argued that the absence of relevant baseline data (and “the different
significance attached to impacts in different countries”) is one of the
strongest reasons to ensure that local experts participate in the EIA process,
including local communities that have a vested interest in the project
outcomes.[74]
Lack of baseline data is a problem in the Brazilian EIA process. A more robust
baseline is required to assess the potential impacts of projects on
biodiversity effectively. According to a study conducted by Dias et. Al, “most
of the evaluated development proposals had flaws in baseline studies used to
inform impact assessments on biodiversity.”[75] The results confirmed the
lack of commitment to evidence-based decision-making and suggested that the
collection, use, and management of biodiversity evidence must be improved
through Strategic Environmental Assessment (SEA) and EIA.[76]
In
addition, cumulative impacts from projects are not properly evaluated in the
EIA process.[77]
The EIA framework gives little attention to scoping. Usually, public agencies
do not provide the Terms of Reference for the EIA of specific projects,
considering their specific environmental aspects.[78] In
addition, Brazil does not adopt SEA at strategic planning levels.[79]
SEA is not mandatory under federal law.[80] Consequently, the system
does not provide a substantive and effective assessment of cumulative effects.
Addressing
this issue, scholars argue that the multi-project EIA approach adopted in the
Brazilian pre-salt offshore oil and gas development “can help provide a
regional and programmatic perspective to impact assessment, enabling a more
qualified consideration of cumulative effects.”[81] Pre-Salt
Phase 2 is considered to be the first Brazilian oil and gas EIA experience of a
structured cumulative effects assessment.[82] Brazil’s pre-salt oil
region, discovered by Petrobras in 2006 in the Santos Basin, has become one of
the most significant deep-water oil frontiers in the world. With an estimated
16.4 billion barrels of recoverable reserves, it has attracted energy giants
like Shell, BP, ExxonMobil, Chevron, and Equinor.[83]
Early
exploration faced enormous technical challenges, drilling through thick layers
of salt rock, coping with intense pressures, and maintaining well integrity in
complex geologies. To address these, Petrobras launched the PROSAL program,
investing heavily in R&D and partnering with universities and global
experts.[84]
In
2010, Brazil passed the Pre-Salt Law, giving Petrobras a mandatory 30% stake in
all pre-salt projects and making it the sole operator. However, this
state-heavy model faced criticism for deterring foreign investment, especially
after Petrobras became entangled in the massive “Operation Car Wash” corruption
scandal.[85]
Reforms
in 2016 allowed foreign companies to operate in pre-salt fields, leading to
renewed interest and multi-billion-dollar auctions. In some rounds, Petrobras
opted out of its preferential right for the first time, signaling a shift in
Brazil’s energy governance. The government still oversees operations through
PPSA, ensuring strategic control. Today, pre-salt production is booming,
expected to account for nearly 75% of Brazil’s oil output by 2025.[86]
This
frontier represents both economic opportunity and a delicate balancing act
between energy security, foreign investment, and the environmental risks of
offshore drilling.
5.2. Lack of Meaningful Public
Participation in the EIA Process
The
importance of meaningful public participation in the EIA process of other
countries is well-established.[87]
Project lenders such as the World Bank require public participation in the EIA
process.[88]
Public participation in EIAs is recognized in several international treaties,
including the 1991 Convention on Environmental Impact Assessment in a
Transboundary Context.[89]
The importance of public participation in EIA processes was underscored by
Sheate as follows:
They
will be the people who know their own local environment and will be able to
identify key areas of concern. Those concerns and fears may, in some cases,
prove to be ill-founded, but if they are not identified at the earliest
opportunity, they may arise at a later stage when they are more likely to lead
to conflict. By involving the public as early as possible, issues may be
identified that ‘experts’ might not have considered important.[90]
In
Brazil, public participation under CONAMAs Resolution 009/87 provides that “a
public hearing should be held when requested by the civil body, by the Public
Ministry, or by at least 50 people”. However, public participation is very
limited under the present legal framework.[91] The legislation does not
specify triggers for public hearings, leaving a broad discretion to the Public
Ministry. [92]
Public consultation is only mandatory in the EIS review stage, so there is
generally no consultation in the scoping phase.[93] Thus, the
public is invited to comment on a draft prepared without input, perhaps even
knowledge, leading to the so-called retroactive public participation.[94]
Views raised by local communities and other stakeholders cannot be effectively
addressed at this advanced stage of the EIA process. Therefore, late public
involvement can result in the governmental authority merely seeking to justify
results previously reached.
Affected
communities frequently have difficulty accessing relevant project information.[95]
Glasson notes that “EISs are not in a language accessible to the public, and
there is no requirement for a nontechnical summary.[96]
Even
when public participation is triggered, its influence on decision-making is
debatable due to the politicized nature of the EIA process and the amount of
discretion left to public authorities.[97] This leads to tokenism, a
formal procedure that lacks meaningful consultation.[98]
Residents
potentially affected by petroleum projects could enhance the effectiveness of
the EIA process by identifying the types of impacts the hydrocarbon project
will have on them and the local environment, and contribute to baseline
information if they are allowed to do so.[99] Information sharing is
vital to an effective EIA.[100]
5.3. Lack of attention to negative social
and cultural impacts
A
variety of negative social, cultural, and health impacts can arise from some
oil and gas E&P activities, particularly in communities located near
onshore projects. Adverse effects can include the displacement of residents in
areas where energy projects are developed.[101] Some argue that the poor
evaluation and integration of social impacts in decision-making is due to the
lack of legal requirements and the absence of consolidated methodological
guidelines.[102]
In 2012, a study conducted by the Federal Courts of Account - Tribunal de
Contas da União (TCU), regarding two hydroelectric plants in the Amazon,
concluded that the negative social effects on resettled riverside communities,
who were resettled kilometers away from the river, were not properly considered
and mitigated in the assessments.[103]
Likewise, little attention is paid to the social impacts of hydrocarbon
projects.
Cultural
and health impacts are not adequately addressed in the EIA process in Brazil.
As noted by Sanchéz and Duarte, cultural heritage impacts are rarely considered
in the EIS. Health agencies do not require a Health Impact Assessment.[104]
Conflicts between oil and gas corporations and indigenous peoples or
traditional communities occupying the lands explored by oil companies have
arisen and remain unsettled. At the end of 2023, one day after COP 28, the ANP
put 602 new oil blocks up for auction, at least 21 of which are in the Amazon
River Basin. According to analysis by
the Arayara International Institute, twenty-two Indigenous lands and five
Quilombola territories can be negatively impacted by exploration activities in
these areas, located across nine sedimentary basins.[105]
Potentially impacted Indigenous groups include the Sateré Mawé, Munduruku,
Mura, Kahyana, Kaxuyana, Tunayana and Xokleng, and the isolated peoples of
Pitinga/Nhamunda-Mapuera, Rio Kaxpakuru, and Igarapé Água Fria.[106]
Oil releases can negatively impact biodiversity, including fish, wildlife, and
other aquatic resources that residents rely on for food, causing serious social
and health impacts.
5.4. Lack of coordination between
environmental agencies
A
problem in the hydrocarbon project licensing process that undermines SD is the
lack of coordination among environmental authorities. Projects must follow the
procedures of a single EIA agency.[107]
According to Resolution 237/97 and Ordinance 422/2011, the granting of
environmental licenses for offshore petroleum activities falls exclusively to
IBAMA. Conflicts have arisen between IBAMA and other key authorities in the
licensing process, such as the Ministry of Environment and Climate Change, the
Ministry of Mining, and ANP.
Article
6 of Law 6.938/81 established the National Environmental System (SISNAMA),
consisting of the Ministry of Environment and Climate Change; National
Environmental Council Administration (CONAMA), Brazilian Institute for
Environment and Renewable Resources (IBAMA), and state and municipal entities.
The Ministry of Environment and Climate Change is the central organ of the
system, under which IBAMA works as the executive organ of the system. Although
IBAMA is the responsible authority for environmental licensing of offshore
petroleum activities, its technical decisions are challenged by Federal
Ministers, which delays and interferes with the licensing process. In May 2023,
during a public hearing at the Brazilian Congress, the Minister of Mines and
Energy criticized IBAMA’s decision to require new studies (Avaliação Ambiental
de Área Sedimentar – AAAS) for oil exploration of concession blocs in the
Amazon Basin.[108]
The Minister of Mines and Energy argued that the documentation submitted by his
cabinet workgroup before the auction was sufficient to authorize oil
exploration activities in the area.[109]
In this case, the Minister of Environment and Climate Change was also
criticized for reinforcing the technical decision adopted by IBAMA,
demonstrating a lack of coordination between the federal authorities
participating in the licensing process.
Alongside
IBAMA, the ANP, which operates under the Mines and Energy Ministry, also has
environmental jurisdiction. The ANP, though a petroleum agency created by Law
9.478/1997 to regulate the oil sector, which was lately opened to private
companies, is also considered an instrument of the National Energy Policy
(NEP). The NEP includes, among its objectives, environmental protection. In
this sense, many of the powers granted to the agency under Article 8 of Law
9.478/97 are related, directly or indirectly, to environmental protection,[110]
such as the promotion of studies for delimiting blocks for the concession of
exploration, development, and production activities.[111] However,
in practice, there has been no coordination between ANP and IBAMA, especially
with respect to the concession of blocks in sensitive areas. As noted by
Antunes, this is because there is no previous investigation of the
environmental conditions in an area to be bid on, and no primary data that
could serve as an inventory of different protected areas in Brazil.[112]
This usually creates tension among these regulatory public agencies and the
purchaser of the block. The recent concession regarding 11 blocks located in
the Potiguar Basin illustrates this statement. These blocks are located over
the submarine mountains of the Fernando de Noronha chain, which was recognized
as a World Natural Heritage site by UNESCO in 2001.[113] These
geological formations play a crucial role in the region’s ecosystem and have
been classified as an Area of Significant Ecological and Biological Importance.[114]
In December 2023, exploration of these blocks was challenged in court. The
plaintiffs argued that the ANP did not carry out a proper technical assessment
of the feasibility of offering the blocks. This problem must be avoided in the
future to improve confidence in the Brazilian bidding process and protect such
crucial environmental areas, which cannot wait for long and complex judicial
battles. Lack of coordination between the above departments and agencies
undermines the EIA process and SD.
5.5. Lack of Post-Assessment Hydrocarbon
Project Monitoring
Preparation
of an Environmental Management Plan (EMP) is required to obtain an installation
or construction license. An EMP is a detailed plan and schedule of mitigation
measures necessary to address the potential impacts identified through the EIA.[115]
Those measures are to be undertaken during the project to reduce adverse
environmental impacts. An EMP includes specific actions needed to implement the
measures, the costs associated with implementation of the measures,
compensatory measures available should the hydrocarbon operator fail to
adequately address the adverse effects of the project, and the institutional
arrangements available to implement the measures, i.e., agencies, bodies, or
officers charged with implementing the measures.[116] However,
as noted by Dias and Sanchez, “follow-up was hindered by poor wording of terms
and conditions of environmental licenses and ambiguous mitigation measures
described in the Brazilian EIS, hampering auditing and enforcement.[117]
An EIA process that promotes SD will provide for implementation of
post-monitoring for the entire life cycle of the project as part of the EMP.
After hydrocarbon project approval, it is necessary to monitor whether the
proposed mitigation measures are being implemented and, if they have been, how
they are working.[118]
In Brazil, the difficulty in implementing and enforcing the monitoring
requirements is often related to the lack of financial resources and trained
personnel within environmental agencies and organs. IBAMA – the executive key
agency that coordinates environmental licensing and EIA at the federal level-
still faces serious hurdles in implementing environmental policies and rules,
including the ones concerning offshore oil exploration.[119]
This core environmental authority, having inherited the defects of the prior
governmental organs that it replaced, is also considered to be a bureaucratic
agency.[120]
As noted by Glasson and Salvador, monitoring “needs to be greatly improved, and
preferably should be mandatory, with periodic reports presented by developers
to competent authorities.”[121]
5.6. Lack of Political Will and
Stewardship
In
Brazil, where the national petroleum company Petrobras and multinational
corporations exert significant economic influence, political will is a critical
factor in changing the EIA process that could further SD. The current
environmental and licensing decision-making process in Brazil is strongly
subject to political and business interests.[122] Examples include the
hydrocarbon concession of blocks located in the Potiguar Basin and Amazon Basin
– clearly, major influential petroleum companies and investors exercise their
power to speed up the approval of projects, “without proper consideration of
project alternatives, impacts, and/or irregularities in the licensing process,”[123]
enforcing the need for evidence-based simplification reforms.[124]
5.7. Possible Lessons from Australia
Australia
is a strong comparative model for Brazil because both countries are
resource-rich federal democracies with vast offshore oil reserves and similar
environmental challenges. However, Australia has developed a more advanced,
integrated offshore regulatory system, notably through its independent offshore
regulator, National Offshore Petroleum Safety and Environmental Management
Authority (NOPSEMA), robust decommissioning framework, and emphasis on public
and Indigenous consultation. This makes Australia not just relevant but a
practical source of tested regulatory best practices that Brazil can adapt to
enhance environmental oversight and sustainable hydrocarbon development.
Firstly,
Australia's NOPSEMA is a globally respected model of integrated oversight. It
functions independently from political influence, overseeing environment,
safety, and well integrity across all offshore activities[125].
Brazil’s current system is split among multiple agencies and can lead to
fragmented decision-making and inconsistent enforcement. It will be good to
establish or empower a singular, independent offshore regulator to manage
licensing, compliance, and environmental risk.
Secondly,
Australia undertakes SEA-like processes before oil licensing rounds, often
evaluating cumulative impacts in offshore basins[126]. In
contrast, Brazil focuses on project-level EIAs, with limited proactive
assessment at the policy or regional scale. This can lead to underestimating
systemic risks, especially in the Amazon River Basin and coastal pre-salt
areas. Brazil needs to codify SEA into national law, enabling basin-wide
environmental assessments to guide offshore block auctions and ensure climate
and biodiversity coherence.
Lastly,
Australia’s offshore regulators are increasingly considering the climate
impacts of new oil and gas approvals prompted by public pressure and judicial
reviews. While imperfect, these trends signal a shift toward reconciling fossil
fuel development with net-zero commitments. Brazil, a signatory to the Paris
Agreement, has not fully integrated climate risk or carbon budgets into EIA
practice. Brazil needs to add climate impact assessments into EIA procedures
and link future licensing rounds with Brazil’s NDCs.
Conclusion
Brazil
stands at a crossroads. On one hand, its abundant hydrocarbon reserves,
particularly in the pre-salt offshore basins, present immense opportunities for
energy security, economic growth, and global competitiveness. On the other
hand, these opportunities bring complex environmental, social, and governance
challenges, especially in light of global climate commitments and domestic
constitutional obligations.
The
article has examined Brazil’s evolving EIA and licensing frameworks,
emphasizing their role in promoting SD. While Brazil has made significant
strides, enshrining EIA in its Constitution, operationalizing CONAMA
resolutions, and introducing legal instruments such as Complementary Law
140/2011 and Ordinance 422/2011, the challenges remain. Conflicting
jurisdictional mandates, limited public participation, and emerging pressures
from pre-salt and Amazon basin expansions all test the robustness of Brazil’s
environmental governance.
In
light of these realities, it becomes imperative to learn from other
jurisdictions navigating similar terrains. Australia, with its independent
offshore regulator (NOPSEMA), integrated environmental and safety assessments,
transparent decommissioning protocols, and strong community engagement
practices, offers practical lessons. Not every model is perfectly transferable,
but many are adaptable.
As
Brazil continues to align its energy ambitions with ecological stewardship and
social justice, it must build stronger institutions, improve coherence across
federal and subnational levels, and create pathways for meaningful Indigenous
and civil society participation. Only through these actions can Brazil realize
the promise of a hydrocarbon sector that sustains its people, respects its
ecosystems, and meets the demands of a changing planet.
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