Uma análise regulatória do licenciamento ambiental para a geração de energia eólica no Brasil e a judicialização do setor

Sampaio, Rômulo Silveira da Rocha
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This work seeks to analyze the complexity of the normative-regulatory framework that governs environmental licensing for wind generation enterprises, verified by the lack of precision and articulation between the norms issued by the Federal Government and the federal states, as well as those edited by other systems of the Administration, such as those of the Brazilian Electricity Sector. What is sought to be inferred is whether this complexity impairs the effectiveness of the environmental licensing process, increasing the judicialization and leading to a scenario of legal uncertainty, which can generate a dispute for investments between states and an obstacle to the expansion of the source. The hypothesis that complexity increases the judicialization will be verified through analyze of studies about the lack of effectiveness and inaptitude of the current framework to solve important issues - such as the competence to legislate - and, also, through the analyze of the jurisprudential understanding of the Federal Regional Courts of the 4th and 5th Region, Court of Justice of the State of Rio Grande do Sul and Superior Court of Justice. Specifically regarding the regulation of the wind power source on the surface, will be confronted the hypothesis that the intended optimization of environmental licensing for the source may not result in the reduction of conflicts and judicial demands, since other associated systems are involved in the process, which requires clear and simplified legislation. The social, economic and cultural components also make the process complex by influencing the analysis of the impact of the enterprise, even in a potentially simplified procedure. The very characteristic of this generation modality, which allows the shared use of space, can increase the normative-regulatory complexity. Because environmental licensing is an important instrument of environmental control that must be valued, improved and modernized to give efficiency to the SEB, will be defended the reorganization of the current regulatory framework in parallel to the adoption of a systemic reading of the norms of this framework with the ones issued by the other systems involved in the process. Likewise, will be argued that must be a change in the pattern of environmental management, as well as in interpretation and judicial control, to be guided by greater efficiency and concern with the consequences of decisions, in order to reduce legal uncertainty and the potential judicialization of conflicts when implemented wind power generation projects.

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