Regime geral do licenciamento ambiental, sustentabilidade ambiental empresarial e análise de risco

Abstract

Environmental prevention depends on the quality of the knowledge produced before the administrative authorization of economic activities capable of causing environmental degradation. The central legal problem does not lie in the absence of a normative basis for requiring environmental risk analysis in licensing, but in the fact that the criteria triggering the production of qualified knowledge within the general regime remain insufficiently stabilized, an insufficiency that persists even after Law No. 15,190/2025. The approach adopted is doctrinal, reconstructive and de lege lata, theoretical and interpretive in nature, based on normative, doctrinal and case law sources. The 1988 Constitution, the Brazilian National Environmental Policy and Law No. 15,190/2025 form the normative core, complemented by sub-statutory regulations, technical standards, special regulatory subsystems and case law of the Federal Supreme Court and the Superior Court of Justice. Environmentally relevant economic activity is legally subject to the ecological variable, and corporate environmental sustainability is connected to preventive duties of organization, information and control. Environmental risk analysis is a legally admissible and methodologically identifiable instrument for the prior production of knowledge. Law No. 15,190/2025 incorporated the language of risk into the general environmental licensing regime, recognizing risk analysis as a conditional requirement without establishing sufficient national criteria for when it must be triggered. This framework reveals a deficit in the evidentiary sufficiency of the general environmental licensing regime when the fragmentation of preventive subsystems and the subsequent rigor of environmental liability coexist with underdetermined criteria for requiring, waiving or adapting risk analysis before administrative authorization. Risk analysis is not a universal requirement for every licensing procedure, nor does it replace environmental impact assessment or the licensing authority’s technical judgment. When a relevant risk, a reasonable technical possibility of identifying adverse scenarios, potential for serious harm and the licensing decision’s dependence on qualified knowledge converge, the prohibition of insufficient protection provides a reconstructive standard for requiring technical and legal justification of the licensing decision.