The USA represents the largest export market for Brazilian timber. Exotic species are bought at a premium and tend to be used in high-end architecture for decking, siding (cladding), and flooring. Major institutional buyers such as cities, universities and companies with large campuses also purchase massive
quantities of Brazilian and other tropical timber for walkways and piers; New York City, for example, is one of the largest purchasers of such timber in North America. These institutions see some South American tropical hardwood varieties, Ipê in particular, as a long-term investment because of their durability and weather resistance. However, buyers of Amazon timber may be not only financing forest destruction but also violating US law.
Buying Brazilian timber and breaking US law
The trading of illegal timber is banned in the USA under the Lacey Act.5 This law, in force since 1900, bans trade in illegal wildlife. In 2008 the US government amended it to include trafficked plants as well as fauna, representing the world’s first trade ban on illegal timber. The amended act requires buyers to file ‘Lacey declarations’ that specify the scientific name, value, quantity and country of harvest of imported timber. Most importantly, it bans trade in timber that was acquired in any
manner that violated an underlying US, foreign or international law.
Trade in timber acquired in violation of any underlying Brazilian law is thus prohibited under US law. Given the high incidence of illegality in the Amazon timber sector, it is very likely that many US purchases of Brazilian timber have been and continue to be in violation of US law. The Lacey Act has provisions for both civil and criminal penalties that range in severity depending on the intent of the buyer, whether or not the buyer knows that the timber is illegal and whether or not the buyer has taken ‘due care’.
Due care is a legal
standard of diligence that differs according to context: high-risk origins may require additional scrutiny on the part of the buyer in order to ensure that timber is legal.
The Act also has strict liability provisions, meaning that even if a buyer has taken due care to prevent the purchase of illegal timber, they can still be held
responsible if any timber purchased proves to be illegal, although
the penalties are not as severe as those for buyers who did not take due care.
Given the systemic flaws in the Brazilian timber regulatory system, due care for purchases from Brazil requires an enhanced level of scrutiny from buyers. This should include looking beyond Brazilian legal documentation, which has been shown to be easily misappropriated. Many US vendors of Brazilian timber claim that they review legal documents from exporters and occasionally make site visits.11 However, looking at the documents in isolation does not address the issue of whether or not they match the timber that they accompany. In order to ensure that the wood purchased actually comes from the location claimed in the documents, buyers may need to invest additional resources in
site visits, third-party auditing, or origin verification technology such as DNA or isotope testing. Although third-party certification schemes such as that run
by the Forest Stewardship Council (FSC) maintain legality as a fundamental principle for certified operations, the US government recognises certification only as an indicator of due care, not as stand-alone proof of legality.12 Several situations could occur that might result in illegal timber being traded under the FSC label, such as a company further up the supply chain violating laws in
the country of origin,13 or the timber’s true origin being hidden from the buyer by means of misappropriated documents.
