The Brazilian Amazon Timber Industry and the International Mechanisms of Timber Trade Control

398 Pages·2017·10.5 MB·English

PPaaccee UUnniivveerrssiittyy
DDiiggiittaallCCoommmmoonnss@@PPaaccee
Dissertations & Theses School of Law
2016
TThhee BBrraazziilliiaann AAmmaazzoonn TTiimmbbeerr IInndduussttrryy aanndd tthhee IInntteerrnnaattiioonnaall
MMeecchhaanniissmmss ooff TTiimmbbeerr TTrraaddee CCoonnttrrooll –– CCoommbbaattiinngg IIlllleeggaall
LLooggggiinngg aanndd AAssssoocciiaatteedd TTrraaddee
Juliana Coelho Marcussi
Elisabeth Haub School of Law at Pace University
Follow this and additional works at: https://digitalcommons.pace.edu/lawdissertations
Part of the Environmental Law Commons, International Law Commons, International Trade Law
Commons, and the Natural Resources Law Commons
RReeccoommmmeennddeedd CCiittaattiioonn
Juliana Coelho Marcussi, The Brazilian Amazon Timber Industry and the International Mechanisms of
Timber Trade Control – Combating Illegal Logging and Associated Trade (2016) (SJD dissertation,
Elisabeth Haub School of Law at Pace University), http://digitalcommons.pace.edu/lawdissertations/21/.
This Dissertation is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has
been accepted for inclusion in Dissertations & Theses by an authorized administrator of DigitalCommons@Pace. For
more information, please contact [email protected].
THE BRAZILIAN AMAZON TIMBER INDUSTRY AND THE INTERNATIONAL MECHANISMS OF
TIMBER TRADE CONTROL – COMBATING ILLEGAL LOGGING AND ASSOCIATED TRADE

Juliana Coelho Marcussi

A dissertation submitted to the faculty at Elisabeth Haub School of Law at Pace University in
partial fulfillment of the requirements for the degree of Doctor of Juridical Science in
Environmental Law.

White Plains
2016

Approved by:
David N. Cassuto
Jason J. Czarnezki
Nicholas A. Robinson
© 2016
Juliana Coelho Marcussi
ALL RIGHTS RESERVED
ii
ABSTRACT

Juliana Coelho Marcussi: The Brazilian Amazon Timber Industry and The International
Mechanisms of Timber Trade Control – Combating Illegal Logging and Associated Trade
(Under the direction of Prof. David N. Cassuto)

Illegal logging and its associated trade are one of the main causes of degradation of the
Amazonian Rainforest in Brazil. They spring from several deficiencies in the regulatory and
monitoring systems. The purpose of this work is to recommend mechanisms to overcome
these deficiencies to eliminate illegal logging and its associated trade in the long-term and to
enhance the appreciation of the standing forests and the sustainable use of their natural
resources.
Chapter 1 provides an overview of the Brazilian tropical timber market’s trends, and
briefly describes the main stages of timber supply chain to build familiarity with the activities
surrounding it. Chapter 2 presents the aspects of the Brazilian federal environmental
regulatory system of timber supply chain that are essential for further analysis of illegal
undertakings.
Chapter 3 provides information on the factual aspects of illegal logging and associated
trade in the Amazon. It analyzes the sector’s features and deficiencies and examines how
effective the enforcement of the Brazilian environmental law has been to date. Chapter 4
describes the international mechanisms of timber trade control in use worldwide. It focuses on
those systems that are the most effective and have beneficial impact – or potential beneficial
impact if better promoted – on the Brazilian timber industry.
iii
Finally, chapter 5 recommends a multi-faceted approach to be implemented by the
Brazilian Government with the cooperation of the international community, non-profit
organizations, and the private sector. It suggests strategies to promote effective international
timber trade control mechanisms within the Brazilian Amazon timber industry, and to adapt
effective tools provided by those mechanisms to the Brazilian environmental regulatory
system. These strategies include instruments from the United States Lacey Act and the
European Union Forest Law Enforcement, Governance, and Trade Action Plan, forest
certification schemes, and the International Forest Regime. This work also provides
recommendations to improve the efficiency of control mechanisms that are currently but
poorly implemented in Brazil.

iv
I dedicate this work to my family, Helvio, Maria Lúcia, and Laura, for their
unconditional love and support.
v
ACKNOWLEDGEMENTS

I would like to express my sincere appreciation to my supervisor, Professor David N.
Cassuto, for his outstanding motivation and guidance during the production of this
dissertation. I would also like to thank the members of the defense committee, Professors
Jason J. Czarnezki and Nicholas A. Robinson, for their contribution to my research through
their queries and suggestions.
A special thanks to my parents and my sister, who always supported me and gave me
strength to face the challenges along the way. I am also grateful to my friends and colleagues,
for their suggestions and encouragement to strive towards my goal.
I would like to express my gratitude to the editors who assisted me in improving the
quality of my work, and the faculty who gave me the best assistance during my program and
made me fell at home at Elisabeth Haub School of Law. Last but not least, I would like to
thank the interviewees that made themselves available to contribute to my work by sharing
their knowledge and experience.

vi
TABLE OF CONTENTS

ABSTRACT III
ACKNOWLEDGEMENTS VI
TABLE OF CONTENTS VII
INTRODUCTION 1
CHAPTER 1 – TIMBER INDUSTRY IN BRAZIL 8
A. INTRODUCTION 8
B. DEFINITIONS OF TERMS USEFUL FOR THE ANALYSIS OF THE BRAZILIAN TIMBER
INDUSTRY AND THE APPLICABLE NATIONAL LAWS 9
I. DEFINITION OF ‘FORESTRY SECTOR’ TO BE USED IN THIS WORK 9
II. DEFINITION OF ‘TROPICAL TIMBER’ TO BE USED IN THIS WORK 10
C. HISTORICAL BACKGROUND OF TIMBER EXCTRACTION – DEFORESTATION AS A
HISTORICAL AND CULTURAL PROBLEM 11
I. TIMBER EXCTRACTION DURING COLONIAL PERIOD 11
II. TIMBER EXCTRACTION DURING IMPERIAL PERIOD 13
III. ENVIRONMENTAL IMPACTS OF TIMBER EXPLOITATION DURING COLONIAL AND IMPERIAL
PERIODS 14
IV. TIMBER EXCTRACTION DURING REPUBLICAN PERIOD 14
V. THE GROWTH OF REFORESTATION FOR COMMERCIAL PURPOSES 15
D. CURRENT ASPECTS OF THE BRAZILIAN TIMBER MARKET 17
I. MAIN TIMBER SPECIES AND PRODUCTS AT THE BRAZILIAN MARKET 18
II. BRAZIL AS ONE OF THE MAIN TIMBER-PRODUCING COUNTRIES IN THE WORLD 19
III. BRAZIL AS A SECONDARY TIMBER EXPORTER AND THE MAIN CONSUMER OF NATIONAL
PRODUCTION 20
E. STAGES OF TIMBER SUPPLY CHAIN 22
I. TIMBER EXTRACTION FROM PLANTED FORESTS AND NATIVE FORESTS 23
II. TRANSPORTATION AND STORAGE OF TIMBER 24
III. MANUFACTURE OF WOOD PRODUCTS AND TRANSFORMATION INTO FINAL BYPRODUCTS 25
IV. CONSUMPTION OF TIMBER AND BYPRODUCTS 26
F. DIMENSION OF FORESTS IN BRAZIL AND WORLDWIDE, AND THE IMPORTANCE OF THEIR
PRESERVATION 27
G. DEFICIENCIES IN THE BRAZILIAN TIMBER INDUSTRY THAT CONTRIBUTE TO
UNSUSTAINABLE USE OF FOREST RESOURCES, ILLEGAL LOGGING AND ASSOCIATED TRADE 29
H. CONCLUSION 30
CHAPTER 2 – FEDERAL ENVIRONMENTAL REGULATORY SYSTEM OF
TIMBER SUPPLY CHAIN IN BRAZIL – RELEVANT ASPECTS 33
A. INTRODUCTION 33
B. HISTORICAL EVOLUTION OF THE FEDERAL REGULATORY SYSTEM ON FORESTS AND HOW
IT BECAME A SYSTEM OF HIGH ENVIRONMENTAL PROTECTION VALUES 35
I. FORESTRY LAW DURING THE COLONIAL, IMPERIAL AND REPUBLICAN PERIODS – DISREGARD
WITH FORESTS’ ENVIRONMENTAL VALUE, AND THE LAW’S SOLE PURPOSE TO PRESERVE FOREST
RESOURCES FOR THEIR ECONOMIC VALUE 35
vii
II. THE PROTECTION OF FORESTS FOR THEIR ENVIRONMENTAL VALUE BY FORESTRY LAW – THE
FIRST FEDERAL FOREST CODE 36
III. THE IMPROVEMENT OF FORESTRY LAW TOWARD ENVIRONMENTAL PROTECTION AND
CONSERVATION 38
IV. ILLEGAL DEFORESTATION AS A HISTORICAL AND CULTURAL PROBLEM DUE TO LACK OF
REGULATION IN THE PAST 39
C. CONSTITUTIONAL REQUIREMENTS FOR ENVIRONMENTAL PROTECTION AND
SUSTAINABLE USE OF NATURAL RESOURCES 40
I. ASSURANCE OF PEOPLE’S RIGHT TO AN ECOLOGICALLY BALANCED ENVIRONMENT, AND THE
EXERCISE OF GOVERNMENT AND COMMUNITY’S DUTY TO DEFEND AND PRESERVE THE
ENVIRONMENT 40
II. RESPECT FOR CONSTITUTIONAL ENVIRONMENTAL PRINCIPLES – THE SUSTAINABLE
DEVELOPMENT PRINCIPLE 42
III. RESPECT FOR THE COMMON RIGHT TO AN ECOLOGICALLY BALANCED ENVIRONMENT BY
LANDOWNERS WHEN EXERCISING THE SOCIAL FUNCTION OF RURAL PROPERTY 43
IV. RESPECT FOR SPECIALLY PROTECTED AREAS AND THE AMAZON RAINFOREST AS A
NATIONAL PATRIMONY 44
V. THE REQUIREMENT OF ENVIRONMENTAL PRESERVATION OF INDIGENOUS AND UNOCCUPIED
LANDS 45
VI. EXERCISE OF GOVERNMENT’S DUTY TO PROTECT THE ENVIRONMENT 46
VII. THE IMPORTANCE OF ACKNOWLEDGING CONSTITUTIONAL REQUIREMENTS OF
ENVIRONMENTAL PROTECTION AND SUSTAINABLE USE OF NATURAL RESOURCES FOR THE
CREATION OF MACHANISMS TO TACKLE ILLEGAL LOGGING AND ASSOCIATED TRADE IN THE
AMAZON 48
D. REQUIREMENTS OF ENVIRONMENTAL PROTECTION AND SUSTAINABLE UTILIZATION OF
NATURAL RESOURCES UNDER THE FEDERAL ENVIRONMENTAL REGULATORY SYSTEM ON
FORESTS APPLICABLE TO TIMBER INDUSTRY 49
I. THE LEGAL REQUIREMENTS AND INSTRUMENTS OF THE FOREST CODE APPLICABLE TO THE
AMAZON’S TIMBER INDUSTRY 49
1. Prohibition of logging at Areas of Permanent Preservation 49
2. Logging at Areas of Legal Reserve subject to sustainable forest management previously
authorized by the competent authority 51
3. Rural Environmental Register as a deforestation control mechanism 53
4. Utilization of forests for commercial purposes subject to environmental licensing and
sustainable forest management 54
5. Suppression of native vegetation for alternative use of the land permitted only with
reforestation or compensation of the suppressed vegetation 55
6. Obstacles to full compliance with the provisions of the Forest Code applicable to timber
industry 57
II. PROHIBITED SUPPRESSION OF ENDANGERED SPECIES AND SPECIES NECESSARY TO
TRADITIONAL POPULATIONS’ SUBSISTENCE IN NATIVE FORESTS 58
III. THE NATIONAL SYSTEM OF CONSERVATION UNITS AS AN INSTRUMENT FOR
ENVIRONMENTAL PRESERVATION AND SUSTAINABLE USE OF NATURAL RESOURCES 60
1. Strict prohibition of timber exploitation within Conservation Units of Full Protection and
permitted extraction within Conservation Units of Sustainable Use 62
viii
· Conservation Units of Sustainable Use where logging is permitted in certain circumstances
62
· Conservation Units of Sustainable Development where logging is not permitted 65
2. Conservation Units as relevant instruments of environmental protection in the Amazon
region 66
E. ENCOURAGEMENT OF SUSTAINABLE USE OF FOREST RESOURCES IN THE AMAZON
REGION THROUGH MANAGEMENT OF PUBLIC FORESTS 67
I. PUBLIC FORESTS AS THE LARGEST PORTION OF THE AMAZON 67
II. DISCOURAGEMENT OF ILLEGAL LOGGING BY THE ENACTMENT OF THE LAW ON
MANAGEMENT OF PUBLIC FORESTS – LAW 11.284/2006 68
III. DIRECT MANAGEMENT OF PUBLIC FORESTS BY THE PUBLIC ADMINISTRATION 69
IV. MANAGEMENT OF PUBLIC FORESTS BY LOCAL COMMUNITIES 70
V. CONCESSION OF PUBLIC FORESTS TO PRIVATE PARTIES FOR SUSTAINABLE USE OF NATURAL
RESOURCES 71
1. Aspects of the forest concession proceeding that require forest management to be held
sustainably 74
2. The grantee’s obligations under a public forest concession agreement and their
importance for environmental conservation 76
3. Advantages of long-tem forest concession agreements to an effective implementation of
sustainable forest management 77
VI. MANAGEMENT OF PUBLIC FORESTS AS AN EFFECTIVE INSTRUMENT TO DISCOURAGE
ILLEGAL LOGGING AND ITS BENEFITS TO THE SUSTAINABLE USE OF AMAZONIAN RAINFOREST’S
NATURAL RESOURCES 77
F. ENVIRONMENTAL ADMINISTRATIVE AND CRIMINAL OFFENSES AT TIMBER SUPPLY CHAIN
AND LIABILITY FOR ENVIRONMENTAL DAMAGE 79
I. CRIMINAL LIABILITY FOR ENVIRONMENTAL DAMAGE AND THE CLASSIFICATION OF CRIMINAL
OFFENSES – LACK OF CLARITY IN THE OFFENSES’ DESCRIPTIONS AND THE APPARENT CONFLICT
BETWEEN THEM 80
II. ADMINISTRATIVE LIABILITY FOR ENVIRONMENTAL DAMAGE AND THE CLASSIFICATION OF
ADMINISTRATIVE INFRACTIONS – LACK OF CLARITY IN THE INFRACTIONS’ DESCRIPTIONS AND
THE APPARENT CONFLICT BETWEEN THEM 84
III. DISPROPORTIONALITY BETWEEN PENALTIES AND THE CONDUCTS’ GRAVITY 88
IV. THE NEED FOR A LEGISLATIVE REFORM OF ADMINISTRATIVE AND CRIMINAL SANCTIONS TO
IMPROVE FORESTRY LAW ENFORCEMENT 89
G. PROHIBITION OF LOGGING WITHIN INDIGENOUS LANDS 91
H. ENVIRONMENTAL LICENSING OF TIMBER INDUSTRY ACTIVITIES AS A FORM TO COMBAT
ILLEGAL UNDERTAKINGS WITHIN TIMBER SUPPLY CHAIN 94
I. TIMBER INDUSTRY ENTERPRISES AND ACTIVITIES SUBJECT TO ENVIRONMENTAL LICENSING 95
II. COMPETENCE OF ENVIRONMENTAL AGENCIES TO ISSUE LICENSES – STATE ENVIRONMENTAL
AGENCIES AS THE MAIN COMPETENT BODY TO LICENSE TIMBER INDUSTRY ACTIVITIES 96
III. THE ENVIRONMENTAL LICENSING PROCEDURE 97
IV. ILLEGALITIES AT LICENSING PROCEDURES OF TIMBER INDUSTRY ACTIVITIES 98
I. FEDERAL AND MAIN STATE CONTROL SYSTEMS OF FOREST PRODUCTS’ ORIGIN AS
MECHANISMS TO COMBAT ILLEGAL UNDERTAKINGS WITHIN TIMBER SUPPLY CHAIN 100
I. THE NATIONAL CONTROL SYSTEM OF FOREST PRODUCTS’ ORIGIN (SINAFLOR) AND THE
DOCUMENT OF FOREST ORIGIN (DOF) 100
ix