Opinion – Jerson Kelman: Sanitation: no pat on the back

The absence of consistent and transparent rules for tariff calculation, as well as for monitoring the coverage and quality of the sanitation service, explains the delay in sanitation in Brazil. That is why the new legal framework for the sector, from 2020, assigned to the ANA (National Water and Sanitation Agency) the responsibility of issuing reference standards for its regulation, to be exercised by state and municipal regulatory agencies. It is a measure to provide the sector with legal security, an essential requirement for attracting private capital and better functioning of state-owned companies. But is the participation of private capital in sanitation really necessary?

Anyone who lives in a well-urbanized neighborhood, with regular water supply and sewage collection and treatment, may have this doubt and eventually argue against the “commodification of water”. After all, isn’t it true that in some developed countries the opposite is currently happening? That is, the renationalization of sanitation companies? Why would we go the opposite route, opening the door to private initiative?

However, those who are not satisfied with children stepping in open sewage in poor communities may think otherwise. If until now the government has not been able to serve these populations, why would it do so now, when the shortage of fiscal resources is even more acute? Why should we imitate a few developed countries, universalized for decades, if half of our population still does not have access to sewage collection and treatment?

This discussion seemed outdated, but it came back to the fore due to some initiatives on the first day of the Lula government 3. MP (provisional measure) 1,154/2023 links ANA to the Ministry of Environment and Climate Change and changes the name of the agency, eliminating the word “sanitation”. No problem with change of Ministry. However, the removal of the word “sanitation” may aim to re-establish the situation existing before 2020, when the ANA was only concerned with the management of water resources (rivers and lakes). As if to confirm this suspicion, Decree 11.333/2023, also of January 1st, attributes to the Ministry of Cities the responsibility of establishing the so-called “reference norms”. On the other hand, the MP did not eliminate article 25-A of Law 11.445/2007, which assigns the same responsibility to ANA. That is, the aforementioned decree is illegal and needs to be corrected.

Apparently, the contradiction between the provisional measure and the decree originates from a political articulation that took place during the transition, whose objective was to transfer the attribution today from the ANA to the Ministry of Cities. There are indications that the proposal was not accepted. I hope it’s true! If, on the contrary, the articulation had been successful, the government would have made a regrettable mistake.

It is not sensible to attribute to the government in charge, subject to the conjunctural instabilities of politics and governance, the responsibility of directly or indirectly regulating public services granted through very long-term contracts that demand huge investments. Some decisions may involve the government itself as the pole of some dispute. That is why the agencies are State and not government entities. Like the courts.

ANA already has a highly qualified technical staff, admitted to the institution through competitive public tenders. It could get even better if the Lula government reinforces it with experienced professionals in the field of economic regulation.

A few days ago, President Lula declared that “a government doesn’t need a pat on the back. It needs to be demanded every day, so that we can improve our work capacity”. Well then, the first signs of the 2020 sanitation milestone are auspicious. It may be that in a few years, after being tested, it will be necessary to revise some rules. However, doing so now would be a mistake. On the contrary, the government should encourage the participation of the private sector in the sector to create jobs and reduce social inequality. This is what the Lula 1 government did in the electricity sector, resulting in the universalization of access to the electricity service.