Licenciamento ambiental e a teoria da regulação inteligente: uma contribuição de Neil Gunningham

[Purpose] Environmental licensing is a procedure through which the environmental regulator allows economic activities when they are potentially hazardous to the environment. The environmental license is a fundamental instrument to evaluate and enforce minimal standards to reduce ecological damage in Brazil. This essay analyzes how Neil Gunningham's proposal of responsive regulation could advance the existing framework for environmental licensing, dissociating this improvement from changes in legislation. Therefore, it points to regulatory policies that are more responsive driven than the current environmentalist regulation. [Methodology] Our approach is the comparison between the principles for smart regulation as described by Neil Gunningham and the Brazilian legal design for environmental licensing. [Findings] Our main findings report the possibility of expansion of the discretion entitled to the environmental agencies around environmental licenses to use them as instruments of regulation. In this regard, agencies should establish clear standards for granting and revising licenses. Additionally, the empowerment of social groups and NGOs in the regulatory process may contribute to this result. Moreover, we argue that a command and control regime approximates to a mixed instruments regulation, whenever it incorporates those principles. [Practical implications] The essay proposes solutions that shift our current social licensing regulation to a more responsive model, without changing laws. Hence, our proposal relies only on Executive initiative, and that condition favors the implementation at any time.