Analysis: When judging Bolsonaro’s cattle, STF may close the door on environmental setback

‘Green package’ is an understatement. What is on trial at the Federal Supreme Court (STF) is the ‘cattle’, as the deregulation of environmental policies promoted by the Bolsonaro government became known.

Of the seven actions of the environmental package under judgment by the STF, six deal with achievements of the Federal Executive in the last three years, except for the change in air quality standards, made in 2018 by Conama resolution and dealt with by the Direct Action of Unconstitutionality 6,148.

The others, more recent, also deal with constitutional violations: on failure to comply with the climate goals of the Paris Agreement and the program to combat deforestation in the Amazon (ADPF 760), withdrawal of Ibama’s autonomy in Operação Verde Brasil 2 (ADPF 735), exclusion of civil society from the board of the National Environment Fund (ADPF 651), failure to combat deforestation (ADO 54), stoppage of the Amazon Fund (ADO 59), and the automatic granting of environmental licensing, made by provisional measure (ADI 6,808). The abbreviations ADPF and ADO correspond to Claim of Noncompliance with a Fundamental Precept and Direct Action of Unconstitutionality by Omission.

If the plenary follows Minister Cármen Lúcia’s interpretation that there is an unconstitutional state of affairs —as she described when she pronounced her vote condemning the government’s omission in relation to deforestation in the Amazon—, the STF will create a historic landmark, assuming a structural flaw. and determining actions to the Executive for a course correction.

“There has already been recognition of an unconstitutional state of affairs for the prison system, for example, but it would be new on the environmental agenda”, evaluates lawyer Maurício Guetta, legal consultant at the Socio-Environmental Institute and coordinator of the preparation of ADPF 760.

“The term means a generalized and systemic violation of fundamental rights; it points to a structural flaw that demands structural responses”, says Guetta.

This is precisely the historic contribution that the STF can make to the future of environmental policy: by accusing a structural failure, the Supreme Court places a sign that goes against the path that the current government is trying to legitimize.

“Opinion, pen”. This is how the then Minister Ricardo Salles (Environment) recommended to his government colleagues —at the famous inter-ministerial meeting on April 22, 2020— to proceed so that the deregulation of norms appeared normal. “Without looking like it, it’s cane”, he warned at the meeting.

In her vote at the beginning of the trial on the possible failure of the government to combat deforestation, Cármen Lúcia described the dismantling of environmental inspection agencies as a silent and invisible termite action.

The guise of a new management, under which the National Environmental System deteriorated, barely served to deceive the Bolsonar audience.

Still, the Attorney General of the Republic, Augusto Aras, took to the STF the lies spread in the Bolsonaro government about environmental NGOs, in an attempt to delegitimize the lawsuits promoted by them. He repeated the false information that these environmental organizations were concentrated in the Amazon (in fact, the North region only has 8% of the NGOs in the country).

Ironically, he did so precisely on the day that the STF began to judge the exclusion of civil society from the board of the National Environment Fund, ending up confirming the government’s opposition to public participation.

By unmasking environmental setbacks disguised as legitimate management, the STF can establish a framework for the development of environmental policy. Since it protects a fundamental right, it can only change in the direction of improving and increasing efficiency.

As Minister Cármen Lúcia stated, the Bolsonaro government could indeed have changed the policy to combat deforestation, as long as it did so for a minimally efficient strategy, which showed progressive results.

While the Bolsonaro administration has promoted an alarming level of environmental setbacks, they are not unheard of in Brazilian politics, nor in Supreme Court judgments.

In 2018, the STF ruled that most of the articles of the Forest Code —approved by parliament in 2012 with reduced requirements for environmental protection— were indeed constitutional. The Supreme Court also ruled as unconstitutional the changes in areas of Conservation Units, made by provisional measure in the government of Dilma Rousseff.

In other words, environmental setbacks are constant threats, present and future, of Brazilian environmental policy, since the interests of economic sectors benefited by unbridled exploitation continue to influence different governments.

No previous government, however, had publicly assumed the desire to reduce environmental protection. The political message allowed for record deforestation and institutional dismantling, but also provoked urgent responses from society, the international level and the judiciary.

In addition to the possible correction applied to the current policy, the signal that the STF offers to future governments with this judgment could be even more significant. This is because the ‘opinion, pen’ method suggested by Salles is an old acquaintance of parliamentarians and executive managers, who make constant use of legal subterfuge or even false environmental controversies to try to legitimize environmental setbacks.

By positioning environmental rights among the pillars of the Republic and conditioning them to democratic participation —their guarantor—the STF judgment points to an inexorable course for environmental policy: forward.