The Federal Supreme Court (STF) on Thursday (28) overturned three decrees by President Jair Bolsonaro (PL) that promoted changes in the functioning of environmental councils, including the one that excluded the participation of civil society in a fund linked to the Amazon.
The ministers also declared the unconstitutionality of a change in the law, made by the government through a provisional measure, which allowed the automatic granting, without analysis by civil servants, of permits and licenses for companies classified in activities of medium environmental risk.
The decisions were made based on actions sent to the Supreme Court by opposition parties to question a series of actions taken by the Bolsonaro administration. There are points still pending judgment. The process package is called the “green agenda”.
With the result still partial, the court reverses legal provisions pointed out by opponents of the Palácio do Planalto as dismantling public policies, especially related to the Amazon.
After forming a majority on Wednesday (27), the president of the court, Luiz Fux, was left to vote on the issue of environmental councils. The minister aligned himself with the prevailing understanding, according to which changes sponsored by the Executive represented a setback for the sector.
In addition to Fux, they voted for the unconstitutionality of the decrees Cármen Lúcia (rapporteur), Alexandre de Moraes, Ricardo Lewandowski, Edson Fachin, LuÃs Roberto Barroso, Dias Toffoli and Gilmar Mendes. André Mendonça and Rosa Weber partially accompanied their colleague. Kassio Nunes Marques was against.
Among the Executive acts overthrown by the Supreme is the decree that removed representatives of civil society from the deliberative council of the FNMA (National Environmental Fund).
Another had revoked the participation of governors in the National Council for the Legal Amazon and yet a third had extinguished the Guiding Committee of the Amazon Fund.
The action was proposed by the Sustainability Network. Initially, the party questioned the validity of the 2020 decree by Bolsonaro and Ricardo Salles, then Minister of the Environment, related to the FNMA. Afterwards, the caption added to the order. The three cases were analyzed together.
In relation to the fund, after the presidential act, the council was formed only by members of federal government agencies, such as the ministries of the Environment, Civil House and Economy.
The FNMA’s mission is to collaborate, as a financing agent, with the implementation of the National Environmental Policy. It was created by law of 1989.
According to the Network, “the participatory democratic character of the FNMA’s Deliberative Council has been completely extinguished, and the body is at risk of losing its raison d’être”.
The party said that, in environmental policy, the Constitution preaches the need for the direct participation of the people, as an instrument for realizing the principle of substantial equality.
The Attorney General of the Republic, Augusto Aras, opposed the action. The head of the Federal Public Ministry criticized non-governmental organizations operating in the Amazon.
“Five years ago, in a survey carried out by the press and official bodies, there were 3,300 NGOs in this country, 3,000 in the Amazon, 300 in the rest of Brazil. This fact imposes a certain caution on us so that national interests, so that popular sovereignty is , in a substantive democracy that we so desire, preserved, guaranteed and defended throughout society by the state through its institutions”, he said.
The rapporteur of the matter stated in her vote that the elimination of civil society shows “a centralization that would be undemocratic”, which offends the principle of popular participation.
“Popular participation of civil society in all instances has always been encouraged both by the Constitution and by legislation and international documents”, said Cármen, accompanied in relation to the FNMA by nine ministers.
The only opposing vote, Kassio Nunes Marques criticized the rapporteur’s vote. According to him, other presidents have also made changes to councils and preventing the exclusion of civil society from one of them is a way of delegitimizing future governments elected by popular vote.
“Repristine a decree that, by political choice in the past, provided for popular participation in a council is, in practice, to impose this direct participation as a minimum instrument of direct democracy without this constitutional requirement,” he said.
Carmen countered Kassio. He said that his vote did not say that the President of the Republic is prohibited from altering councils, as long as he does not exclude a representative of civil society.
The other lawsuit judged this Thursday was presented by the PSB. The party questioned the 2021 provisional measure that amended the law on simplifying the registration of companies and businesses.
With the change, the government facilitated the granting of permits and licenses for companies that carry out activities classified as “medium risk”. The PSB accused the Planalto of, under the allegation of reducing bureaucracy in the country, acting against the environment.
The action cites examples of activities covered by the contested legislative innovation, such as cargo transfer of oil and derivatives on the high seas, small-scale gold mining, economic exploitation of wood and manufacture of fertilizers and agrochemicals.
The reporter for the matter, Carmen stated that the release of simplified or automatic licenses by the public authorities is in disagreement with the Constitution.
“The waiver of environmental licensing is only possible in each case examined by a technically grounded decision of the environmental agency, which proves that the specific activity is not potentially and effectively polluting or aggressive to the environment,” he said. The minister’s vote was unanimously approved.
At the beginning of the session, before starting the debates, Cármen demanded investigations into the circumstances of the rape and possible death of a 12-year-old Yanomami girl in the Waikás region of Roraima.
There are reports that the girl was a victim of miners. The perpetrators of the crime would have taken advantage of the fact that most of the indigenous people had gone out to hunt and invaded the community.
Carmen said that one cannot remain silent in the face of increasing violence against indigenous women.
“Indigenous women are massacred without society and the state taking efficient measures to reach the era of human rights for all, not as a privilege of part of society,” he said.
The minister said that the environmental agenda, which is currently being analyzed by the Supreme Court and for which she is the rapporteur, is closely connected with social issues and the guarantee of human rights.
“It is not possible to remain silent or omit in the face of the debacle of inhumanities criminally imposed on Brazilian women, among which even more indigenous women, who are being killed by the inhuman and unrestrained ferocity of some.”
She highlighted that, since March 30, the court has been evaluating issues related to the Amazon. “It was brought out in the votes cast so far”, said the magistrate, “that the crimes we have are not just environmental militias, therefore, in relation to the forests. But in relation to indigenous people, indigenous lands, criminal mining, land grabbing. And, therefore, my word today is to not continue to be silent about the constitutional right to life”.
Fux also addressed the case of the Yanomami girl, classified by him as “very serious” and expressed his solidarity on behalf of the other ministers.
