Far from being a spice in a political recipe — something that could be added to the taste of each government — public participation is a condition of environmental protection and giving it up is unconstitutional.
It is based on this understanding that the majority of STF (Federal Supreme Court) ministers overturned, this Thursday (28), the decrees of President Jair Bolsonaro that excluded civil society from the deliberative council of the FNMA (National Environmental Fund). ), the National Council for the Amazon and the Amazon Fund’s advisory board.
Article 225 of the Federal Constitution provides that an ecologically balanced environment is not only a right, but also a constitutional duty imposed on the public power and the community.
Therefore, society must have the means to exercise this duty, which makes public participation a fundamental vehicle for environmental protection.
The only vote against was by Minister Nunes Marques. In his view, the extinction of a council by decree is legitimate when its formation is not provided for by law.
Sharp, this distinction has been used since the beginning of the Bolsonaro government to ‘pass the cattle’ under apparent legal normality. Also in March 2019, the Civil House had commissioned all ministries to analyze the councils liable to extinction.
The maneuver did not convince the STF. “Democratic setbacks come from normative changes that, viewed individually, do not challenge the Constitution, but progressively, brick by brick, deconstruct pillars of democracy. This democratic erosion is manifested in many ways”, said Minister Roberto Barroso when he cast his vote.
“We are guardians of the Constitution, which is a system. When a certain point is changed, eventually the whole is changed”, stated Minister Cármen Lúcia. She quoted, in an analogy, what a sculptor would have said: “we always look at the whole to know what is being transformed”.
The STF made similar decisions about reducing public participation in councils in other areas of government, such as the Superior Council of Cinema and the National Council for the Rights of Children and Adolescents. Last December, the decree that restricted participation in the National Council for the Environment (Conama) was also overturned by the STF, in a decision by Minister Rosa Weber.
In that decision, the minister stated that the Constitution required popular participation in the administration of the environment and that this perspective requires, in turn, a convergence of structuring conditions. “A triad of procedural environmental rights: access to information, public participation and access to justice,” proposed Weber.
The proposal rescues the convergence between Brazilian environmental policy and international conventions. The Escazú Agreement, signed by Brazil in 2018, is the most advanced example of the link between democracy and environmental protection.
In fact, the triad cited by Weber corresponds to the full name of the document: Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Issues in Latin America and the Caribbean.
The ministers also mentioned UN environmental conventions, such as the Climate Convention, the Stockholm conference (which started the international discussion on sustainable development and will celebrate its 50th anniversary next June), Rio-92 and Rio+20.
“The Constitution of 88 was not alien to this global movement”, said the president of the STF, Luiz Fux, when he cast his vote this Thursday.
“At the Environmental Observatory, we interact with international courts and it was precisely from the international environment that our Constitution was called the ‘Green Constitution’, considering it the most advanced in the world in this area”, he added.
Despite its historic environmental protagonism —which has already positioned Brazil globally as a potential leader in sustainable development— the country is now seen under wide international suspicion: accused of climate pedaling in the goals of the Paris Agreement; reason for the European Union’s fear of signing the trade agreement with Mercosur; accused, further, of working against the UN biodiversity negotiations.
The country is still in first place in the global ranking of deforestation and fourth among those that kill the most environmental defenders.
With all this, the country has not yet ratified the Escazú Agreement — which would turn it into national law and would imply ways to guarantee social rights for those who defend environmental protection.
“A political analysis of the Escazú Agreement has become necessary in the light of the new guidelines of Brazilian environmental policy”, justified the Ministry of Foreign Affairs on the failure to forward the proposal to Congress, in response to the questioning of federal deputy Rodrigo Agostinho (PSB -SP), last May.
Although it is not realistic to expect such an advance in Brazilian legislation under an anti-environmental government, the understanding solidified by the STF in this judgment should at least inhibit the euphemism, widely used by the current Executive, that environmental policy is under a ‘new guideline’.
The votes of the ministers reinforced, several times, that the freedom of action of any government is based on the provisions of the Constitution. The subterfuge that says “we are under new management” will no longer be able to hide unconstitutional acts, such as those that imply an environmental setback and the exclusion of civil society participation.
Like the system that forms the Constitution, reality is not, after all, compartmentalized. By connecting the dots between social, democratic, indigenous and environmental rights, as well as the right to life, for this and future generations, the STF saw the whole figure — in fact, a disfigurement. No rights are guaranteed under the erosion of democracy.
