The first point we must address regarding environmental permitting regulation in both Brazil and North America is that the United States has not developed a uniform environmental permitting procedure like Brazil’s. On the contrary, its system is dual and decentralized.
Indeed, Brazilian Environmental Law has required, since the enactment of Statute Law n. 6.938/81, that any activity or facility that exploits natural resources or could cause environmental degradation get a prior environmental permit before installation and operation. This permit shall be processed and centralized by an environmental agency, in accordance with the rules governing jurisdiction pursuant to the Complementary Federal Statute Law nº 140/2011.
Regarding the United States, the National Environmental Policy Act (NEPA) provides for procedural review of major federal actions without mandating any particular substantive outcome. Substantive permitting, by contrast, is sector-specific and fragmented, with no unified environmental permit comparable to the Brazilian model. Such review is conducted by the lead agency, that is, the federal agency responsible for proposing, funding, or approving the relevant project or action. The Council on Environmental Quality (CEQ), an entity within the Executive Office of the President, traditionally has played a central role in overseeing and promoting uniformity in federal agencies’ implementation of NEPA. For its part, the Environmental Protection Agency (EPA) performs only limited functions under NEPA. It reviews and publicly comments on the Environmental Impact Statements (EISs) prepared by other federal agencies and may issue recommendations or advisory comments, but it does not approve or reject those studies.
Despite these differences between the two legal systems, Brazilian and American environmental regulation have converged in recent years toward a common trend: the simplification of environmental permitting procedures and the deregulation of environmental law.
This convergence is primarily functional, centered on accelerating and simplifying environmental permitting procedures and narrowing their scope. The institutional pathways, however, differ.
The American turn toward restructuring unfolded through three distinct institutional bodies. Congress moved first: The Fiscal Responsibility Act of 2023, signed into law on June 3, 2023, updated federal environmental rules by amending the National Environmental Policy Act (NEPA) to speed up infrastructure and energy project approvals. The Judiciary followed. In Marin Audubon Society v. FAA, the D.C. Circuit concluded that the CEQ lacked authority to issue judicially enforceable regulations under NEPA, undermining the regulatory framework that had unified NEPA practice since 1978. The Executive completed the dismantling: Executive Order 14154, titled “Unleashing American Energy,” directed CEQ to repeal its own regulations, which it did through an interim final rule in February 2025 and a final rule in January 2026, leaving each agency to devise its own procedures. This measure removed the CEQ’s centralized regulatory authority in an effort to accelerate the permitting of infrastructure and energy projects.
The Supreme Court then delivered the doctrinal capstone. In Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025), a unanimous Court held that judicial review of NEPA compliance is governed by “substantial deference” to agency judgment and that agencies only need to evaluate effects of actions they have regulatory authority over and can draw a manageable line excluding separate, distant activities. The result is a striking paradox: one year after Loper Bright curtailed deference to agency statutory interpretation, the Court entrenched near-total deference precisely where NEPA’s only external check – judicial scrutiny – once operated.
The Brazilian legal system has been moving in the same direction toward simplification.
Unlike U.S. law, the Brazilian legal system expressly grounds the government’s duty to protect the environment in the Federal Constitution, Article 225, § 1º. Although the Constitution does not expressly refer to environmental permitting, the institution is firmly rooted in the constitutional duty to protect the environment. Since at least 1981, when Brazil enacted Statute Law nº 6,938/1981 establishing the National Environmental Policy Act, Brazilian environmental regulation has steadily evolved toward a robust and sophisticated legal framework that provides a strong foundation for environmental protection, even though its practical implementation has often fallen short of expectations.
This protective approach, however, has been gradually eroded through both administrative regulation and legislative reform. This shift toward a less protective regulatory framework culminated in the General Environmental Permitting Act of 2025 (Statute Law n° 15.190/2025), which introduced significant measures to simplify and expedite environmental permitting procedures. Some of these measures for simplification and deregulation are, for instance, the introduction of simplified or “fast-track” procedures, like the Permit Based on Adherence and Commitment (self-declaration permitting type), categorical exemptions from permits, fast-track for strategic projects (special environmental permit), the limitation of environmental permitting requirements to activities expressly listed in applicable regulations, the decentralization of environmental permitting rules among the different levels of government, inter alia.
This convergence between the U.S. and Brazilian legal systems is undeniable, and it appears to be driven primarily by economic considerations. In both countries, environmental regulation has increasingly been framed as an impediment to economic growth, despite mounting scientific evidence of an escalating climate and environmental crisis.
One possible hope to halt this environmental deregulation may lie with the Judiciary. At this point, we may expect a diverging path: while the American Supreme Court has been following a conservative and utilitarian philosophy, the Brazilian Supreme Court embraces a more environmental one. We shall see, after the decision of judicial review cases brought against sections of the Statute Law n° 15,190/2025, whether the Supreme Court will show such a protective perspective or a more constrained view of its role.
One possible avenue for halting this deregulatory trend may lie with the judiciary. At this point, however, the two legal systems may begin to diverge. While the U.S. Supreme Court has increasingly reflected a more deregulatory and institutionally restrained approach to environmental regulation, the Brazilian Supreme Federal Court has generally adopted a more environmentally protective stance. Whether this divergence will persist remains to be seen. The constitutional challenges brought against provisions of Statute Law nº. 15,190/2025 will provide an important test of whether the Brazilian Court will maintain this protective approach or, to the contrary, adopt a more restrained understanding of its institutional role.
Dr. Rafael Martins Costa Moreira
Federal Judge . Master’s and Doctorate in Law (PUCRS) . Visiting researcher at Heidelberg University (2019) . Author of the books: Brazilian Envirommental and Climate Change Law; Acordos Ambientais e os Limites do Inegociável; Manual de Direito Ambiental; Direito Administrativo e Sustentabilidade
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