Brazil’s conservative National Congress has rushed to pass a wave of legislative initiatives, which taken all together, would dismantle much of the nation’s body of law protecting the environment and indigenous people — an effort likely to escalate in 2017.
With the legitimacy and future of the corruption-besieged Michel Temer government threatened and uncertain, the bancada ruralista, as the agribusiness lobby is called, is using an array of Congressional maneuvers to speed passage of laws that would amount to the biggest setback for the environmental and indigenous movements in 30 years, or since the end of the military dictatorship.
The latest attempt occurred this month, just before the parliamentary recess. The agricultural lobby unexpectedly put forward three bills, known as Decretos Legislativos (PDCs), which are laws promulgated by the President of the Senate over which the country’s President does not have the right of veto.
The PDCs would authorize the construction of three industrial waterways in major river basins — PDC 119/2015 on the Tapajós River (and on its two “legs,” the Teles Pires and Juruena rivers) in the Amazon; PDC 120/2015 on the Tocantins and Araguaia rivers, also in the Amazon; and PDC 118/2015 on the Paraguai River.
If eventually passed, as seems likely, the bills will allow industrial waterways (requiring many dozens of new dams) to be built without the proper assessment of environmental and social impacts. The waterways would be used by agribusiness as a cheap means of exporting soy and other commodities.
New Laws Would Allow Fox to Rule Henhouse
As Brazil’s system stands today, a standard Environmental Impact Study (Estudo do Impacto Ambiental, EIA) must be carried out according to the rules drawn up by the government environmental department that licenses the project, generally the federal environmental agency, Ibama.
If the three bills being hurried thru Congress are approved, the EIA will be replaced by a so-called Technical, Economic and Environmental Viability Study (Estudo de Viabilidade Técnica, Econômica e Ambiental, EVTEA). The EVTEA will be drawn up not by government, but by the companies carrying out the project — those with the most interest in making the project economically viable, and with the least to gain from a thorough analysis of socio-environmental risks.
Because the bancada ruralista has become so powerful in Congress, the most that more progressive and environmentally aware politicians can hope for is to delay the legislation. This is what happened this month. The bancada had attached the PDCs to an urgent bill that was being fast-tracked through Congress.
The bancada’s plan was for this urgent bill to go rapidly from the Constitution, Justice and Citizenship Commission (CCJC) to the plenary. But the maneuver was stopped at the eleventh hour by two progressive federal deputies, Chico Alencar and Nilto Tatto. They took advantage of a temporary lack of quorum in the Commission to suspend the session and to “unattach” the PDCs.
This quick thinking created a delay and gained time. But the industrial waterway PDCs are on the agenda for the next meeting of the Commission, which will occur after the parliamentary recess ends in February.
In the longer term, the progressive politicians have little chance of stopping the PDCs in the Commissions, and even less in the Plenary. However, the PDCs would have such a massive impact on Brazil’s environment and on indigenous people that strong resistance outside Congress can be expected.
A Marriage of Congress and Agribusiness
Federal deputy Nilto Tato told Mongabay that, even if the scandal-ridden Michel Temer government were to fall, the bancada ruralista might well continue to gather strength.
“The bancada ruralista is the best organized and best structured group in Congress,” he said. “Through its size and its force, it played a fundamental role in the voting of the impeachment [of President Dilma Rousseff in August 2016], and today its support in Congress is crucial for the government to get its measures through. And, in exchange for [that] support, the bancada gets the government to back its proposals. It is a marriage that works well for the parties concerned and this alliance is at the heart of the government.”
While congressional cat-and-mouse maneuvering can seem far removed from reality, the legislative decisions made could have very real impacts on people in the rest of the country. Take PDC 119/2015 for example. If approved and the Tapajós industrial waterway goes ahead, it will mean either the dynamiting of the rapids on the Teles Pires River or the re-routing of the river to avoid them.
Either option would have a huge impact on the river’s aquatic life and all the complex life systems in the forest that depend on the seasonal flooding of the river. And for the Munduruku Indians, for whom the rapids are sacred sites inhabited by their ancestors, it would mean, literally, the end of their world. Destroying the rapids would be equivalent to dynamiting the Christian Heaven.
But for others, the waterway makes economic sense. Adilton Sachetti, a federal deputy from Mato Grosso, proposed the Tapajós waterway bill. He is an ally of Temer-appointed Agriculture Minister Blairo Maggi — also from Mato Grosso, once known as the “Soy King,” and whose family remains heavily invested in agricultural commodities. According to Nilto Tatto, it is Maggi who “organizes the groups that have taken over the government and are acting in the interests of agribusiness.” Repeated efforts by phone and email were made by Mongabay to interview the Agriculture Minister but without success.
The state of Mato Grosso, located in the heart of Brazil, is the country’s main soybean-producing region, but it currently faces major logistical problems in getting its beans to markets in Europe and Asia. The Tapajós-Teles Pires- Juruena waterway is aimed at helping solve this problem, for it will create a new export corridor to the north.
Sachetti told CanalRural that the construction of the industrial waterways was essential. “Only 4 percent of goods are [currently] carried by waterways, while the road network — expensive, polluting and dangerous — is the most used,” he said. However, the Temer government very recently announced its decision to press ahead with FerroGrão, a new railroad that would stretch from Mato Grosso to the lower reaches of the Tapajós (allowing further transport via the Amazon River to Atlantic ports). FerroGrão, the “grain railway” would make the Tapajós-Teles Pires-Juruena waterway unnecessary, according to some analysts.
Repeating Past Mistakes
The tactics currently being used by the bancada ruralista are very similar to those employed in the recent past when Nilto Tatto’s party, then in power but now in opposition, worked with the hydroelectric energy lobby to give the go-ahead to dams in the Amazon. In 2005, they came up with another Decreto Legislativo (PDC 788) to enable construction of the Belo Monte mega-dam and hydroelectric power station on the Xingu River, and avoid having the project subjected to a proper indigenous or environmental impact evaluation.
At the time, many warned that this was a very dangerous course of action. Indeed, the dam, which came on stream earlier this year, has already attracted international attention for the harm it is causing to local people and the environment. Norte Energia, the consortium that built the dam, is currently charged with crimes that range from causing the death of tons of fish to indigenous ethnocide.
Seven years after the Belo Monte bill was rushed through Congress, the Federal Courts annulled it. Felício Pontes, Prosecutor of the Federal Public Ministry (MPF) of Pará, told Mongabay: “The [bill] that authorized Belo Monte without consulting the Indians was an insult to the [Brazilian] Constitution. Finally, after years of debate, the Judiciary has declared its support for the country’s greatest law and for the rights of the country’s original inhabitants.”
However, as so often happens, the pace of events triggered by the passage of legislation far outstrips the pace of litigation and justice: after seven years Belo Monte has become a fait accompli and irreparable damage has been done to the environment and traditional communities. Last fall, Norte Energia saw its Belo Monte operations license revoked. And the harm done by the dam, including alleged corruption by the construction companies and the government, is still under investigation.
History is already repeating itself. At the beginning of this month, judges from the Federal Regional Tribunal of the first region (TRF1) came to the unanimous decision that the construction of the Teles Pires hydroelectric dam was illegal, precisely because no “free,” “prior” and “informed” consultations had taken place with the Kayabi, Munduruku and Apiaká Indians, as required by the International Labour Organization’s Convention 169, to which Brazil is a signatory.
In practical terms, this legal decision is irrelevant, as the Teles Pires dam, just as in the case of Belo Monte, is already operating and the ruling will not be implemented because it has already been temporarily overruled by an authoritarian tool known as “suspension of security” — used by the government to suspend any inconvenient judicial decision, particularly with respect to hydroelectric dams in the Amazon. The issue will only finally be decided in Brazil’s Supreme Court and that could take many years.
More Bills in the Pipeline
The past and current PDCs are just a taste of what could lie ahead. The power presently exerted by the bancada ruralista has apparently caused the present government to regard the environment — and especially the Amazon — not as something to be preserved, but as an obstacle. Or so the raft of proposed legislation would seem to indicate.
A whole new judicial and political apparatus is being prepared by Congress to get rid of regulatory constraints imposed by earlier environmental legislation. One bill under consideration is Projeto-Lei (PDC 3.729/2004), which is slated for discussion by the Chamber of Deputies’ Finance and Tax Commission (CFT).
Mauro Pereira, a member of the agribusiness lobby, is the rapporteur of this bill. Some 250 environmental bodies have already opposed it, fearing that it would greatly increase the likelihood of another tragic accident like the one that occurred in Mariana in the state of Minas Gerais in November 2015, when an iron tailings dam burst and some 60 million cubic meters of waste was disgorged into the Doce River, killing 19 people and generating toxic flows that reached the Atlantic Ocean two weeks later. The region is still recovering from this, the worst environmental catastrophe in the country’s history, and Brazilian and international mining executives have been charged for their role in the disaster.
PDC 3.729/2004 would “flexibilize” environmental licensing in four ways: It would allow a company to obtain a license automatically for any activity judged by the government to have a “low impact” on the environment. States and municipal governments would be allowed to compete with each other so as to attract investment into their regions, which would likely reduce the environmental demands various governments put on companies wishing to build in competing jurisdictions. Some projects would no longer require an environmental license at all, though no clear criteria has been established for such exemptions. Finally, Environment Impact Studies (EIAs) would only be valid for a limited period, after which — even if scientific studies remained incomplete — a license would be automatically granted. This would make it nearly impossible for impacts to be properly assessed by Ibama.
According to a press release from the respected NGO, the Instituto Socioambiental (ISA), the final version of this bill was written behind closed doors, with the participation of the country’s two largest employer organizations — the National Confederation of Industry (CNI), and Brazil’s Agriculture and Livestock Confederation (CNA). There was no public discussion of the bill, nor were civil society or environmental researchers asked for their opinions.
Brazil’s Environment Ministry told Mongabay that it was “worried” about the possible approval of the bill, saying that it could provoke “an environmental war” between the states and generate “judicial insecurity.”
Adriana Ramos, ISA’s Policy and Law Coordinator, told Mongabay that, if approved, the bill would be one of the greatest environmental setbacks in the history of the country. “The intention of the bill is to dismantle the current licensing system,” she said. “The new setup would be so flexible that it would no longer be possible to prevent disasters like Mariana, or even to mitigate the socio-environmental impact of big infrastructure projects, like Belo Monte.” Mongabay requested an interview with CNA but was not granted one.
Putting Indigenous People at Risk
It is clear that more earth-shattering changes are in the works. Recently, the government said it would be introducing a new bill to replace the current Decree 1.775/96 which would introduce fundamental changes in the way indigenous territories are created.
Under today’s cumbersome procedures it takes a very long while, often decades, for the government to officially mark out an indigenous territory — despite the fact that Indians often face imminent encroachment by loggers, miners and dam builders. But the new bill, if implemented, would make it virtually impossible to do so. Numerous additional roadblocks to the demarcation process would be introduced, as would mechanisms making it easier for indigenous opponents to bring legal challenges in the courts.
Even more seriously, the bill would make it possible to reduce the size of existing indigenous territories if they had not been properly registered in the Secretariat for the Patrimony of the Union (SPU), or in an appropriate registry office. All indigenous territories would have to comply with the new procedures, with the annulment of stages in the demarcation process already carried out. As a result, old land conflicts would be reopened, and the Indians living in territories not fully demarcated by the government would find themselves in a very precarious situation.
The Articulation of Brazil’s Indigenous People (APIB), an organization which speaks for all of Brazil’s indigenous people, immediately published a press release in which it “vehemently repudiated … the macabre decision … to put an end to the demarcation of indigenous land” and the creation of “tricks that will lead to the relocation, resettlement and expulsion of indigenous people under a façade of legality.”
For Márcio Santilli, a former president of Funai, the government’s indigenous agency, the decree would represent a huge setback and would threaten the enormous advances made for indigenous people in the 1988 Constitution. He told Mongabay that this is “the worst proposal for the marking out of indigenous land since the end of the military dictatorship [in 1985]. It would make it possible to reduce the size of indigenous territories that have almost completed the demarcation process. It would even go further, allowing for the possibility of paying Indians for not getting their lands, instead of marking out territory for them. This would perpetuate their situation of expropriation.”
The federal deputy, Nilto Tatto, agrees: “The decree, which is essentially unconstitutional, is paving the way for a new cycle of extermination of the indigenous people. A cycle that had been reversed by the 1988 Constitution, with its fundamental guarantee of access to the land that allowed the indigenous people to raise their heads once more, and to start growing in number.”
If all these threats were not enough, the regional heads of Ibama published an open letter in early December in which they expressed outrage at federal cuts in their funding and the decline in the number of people employed by the institute.
Pointing to figures just published by INPE (National Institute of Space Research), which showed an increase of 29 percent in Amazon deforestation from August 2015 to July 2016 — with forest removal reaching the highest level in eight years — the Ibama officials warned that the agency would be powerless to prevent further deterioration unless their complaints were heard and acted on.
The Environmental Ministry told Mongabay, in response to the criticism made by these regional heads, that, despite the government’s budget cuts, it had “given priority to the units that act directly in combating deforestation.”
Moreover, “the efforts made, during the administration of Minister Sarney Filho, with respect to BNDES [Brazil’s Development Bank], and ANA [the National Water Agency] led to an increase in the 2016 budget from an initial figure of RS $243.8 million (US $72.7 million) to RS $279.6 million (US $83.4 million); that is, an increase of RS $35.8 (US $10.6 million).”
All of these dramatic recent events foreshadow a potentially volatile political situation for 2017 and beyond — with serious repercussion for the environment and indigenous people, especially in the Brazilian Amazon. Nilto Tato told Mongabay: “The setbacks are violent. They match, in their gravity, the institutional rupture that occurred with the process of impeachment.”
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