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Brazil’s high court curbs executive power to dismember protected areas

  • Last week, Brazil’s Supreme Court (STF) ruled that MP 558, a Provisional Measure, was unconstitutional, making it unlawful for the executive branch to use the administrative decree to reduce seven conservation units by 100,000 hectares — five of those units were in the Tapajós basin.
  • In addition, the STF ruled that in future it would be unconstitutional for the executive branch to use MPs to alter the boundaries of already established conservation units. Such reductions can only be approved by the legislature.
  • MPs can continue to be used in setting other policies, some harmful to the environment. Past MPs approved the building of new coal burning power plants, and for dramatically revising the Terra Legal program, revising it not to benefit the landless poor, but wealthy elites and land grabbers, say critics.
  • In another win for conservationists, environment minister José Sarney Filho created five new Brazilian conservation units last week, covering 1.2 million hectares. Two were created in Bahia state, in the Cerrado savanna biome; and three in Maranhão state, in the Caatinga tropical dry forest biome.
Provisional Measures (MPs) were originally instituted as a means of taking emergency action. But over the years, MPs have been employed by the executive branch to dismember conservation units in the Amazon rainforest and elsewhere. Last week’s Supreme Court ruling disallows that practice. Photo by Rhett A. Butler / Mongabay

In a ruling welcomed by environmentalists, Brazil’s Supreme Court decided unanimously on 5 April that it was unconstitutional for the executive branch to have used MP 558, a Provisional Measure (Medida Provisória), to reduce the size of seven conservation units by 100,000 hectares (247,000 acres). Five of the units are located beside the Tapajós River, in one of the Amazon’s most biodiverse regions.

The judgement is far reaching: it precludes the Temer government and all future administrations from using MPs to change protected area boundaries. Instead, the executive branch will need to submit such changes in draft bills to Congress. This approach gives civil society an opportunity to express its views regarding proposed reductions to conservation units. Importantly, the executive can still use provisional measures to push through other policies potentially harmful to the environment.

“The Supreme Court’s decision is both important and necessary, given the power of the lobby against protected areas,” said Daniel Azeredo, Brazil’s Attorney General. “These areas are vulnerable because of inadequate government structures and competing land claims. A large number of provisional measures to reduce the size of protected areas are in the pipeline.”

Areas known to be vulnerable included the Nascentes da Serra do Cachimbo Biological Reserve in the south of Pará and the Itaituba 1 and Itaituba 2 National Forests in the southwest of Pará. In both cases environmentalists were fearful that the government might issue provisional measures to reduce their size and permit economic activities in the areas from which protection was removed or reduced. This will no longer be possible. Azeredo went on: “The Supreme Court’s decision strengthens protection of these areas throughout the country.”

The five conservation units along the Tapajós River had been reduced in size by the Rousseff administration in 2012 to pave the way for the controversial São Luiz do Tapajós hydroelectric dam. In the end the dam was not built. Fierce opposition by indigenous groups and environmentalists caused the government to shelve the project. Though many analysts fear it could be revived.

In a partial defeat for environmentalists, the Supreme Court did not make its ruling retroactive. As a result, the conservation units reduced in size by MP 558 to make way for São Luiz do Tapajós, will not regain the land lost. Minister Carmen Lúcia, the rapporteur, said: “Our decision here … will not invalidate what has already been done by the provisional measure.”

A further disappointment for environmentalists and Tapajós basin indigenous groups: MP 558 specified that, if the São Luiz de Tapajós dam was not built, the land should revert to the conservation units. But this is unlikely to happen, experts say; it would be very difficult to reabsorb the land into the conserved areas, because much has been taken over by land grabbers and artisanal miners, with damage to local habitat.

A map showing Tapajós basin conservation units along with proposed hydroelectric dams. Image by Aymatth2 licensed under the Creative Commons Attribution-Share Alike 4.0 International license

The problem with Provisional Measures

Provisional Measures were institutionalized by the 1988 Constitution, replacing a similar power, called the decree-law (decreto-lei), employed by Brazil’s military government. At the time, MPs were seen as a tool to allow a sitting president to take immediate action via executive order. MPs are valid for 60 days, and renewable for a further 60 days. After that, they lose their validity unless approved by Congress and signed into law. In practice, however, it has proved difficult to overturn an MP because, after four months, it becomes a fait accompli.

Provisional measures were originally created to introduce emergency policies in almost any area of government, whenever required. But today, say analysts, that isn’t how they’re employed. “MPs are being used to push through measures that are not dealing with emergencies, as in the case of the reduction in size of the conservation units,” explained Pedro Martins, legal adviser to the human rights organization, Terra de Direitos.

The use of Provisional Measures by the executive for introducing a wide range of policies has increasingly come under fire by lawmakers and activists all along the political spectrum because MPs are viewed as a way of marginalizing the legislative branch.

Rodrigo Maia, president of the Chamber of Deputies, said: “The instrument of the Provisional Measure is an authoritarian measure. It comes from the time of the military dictatorship. They give the President the right to issue something with the weight of a law without the people’s representatives in the Chamber of Deputies having a chance to discuss it.” Maia noted that, by October of last year, the Chamber had discussed 25 MPs in 2017 alone, while 19 more were in the pipeline.

A landless peasant occupation near highway BR 163 in Pará state. The Terra Legal program instituted in 2009 was meant to give landless peasants a chance to buy small plots of land. MPs were employed by the Temer administration to introduce multiple loopholes allowing wealthy landowners to utilize the program. Photo by Thais Borges

Past MPs undermined the environment

Environmentalists have been unhappy with past provisional measures. One case was MP 735, announced in 2016, through which the Temer administration introduced a “modernization program” to build new coal-fired power plants. Opponents argued that MP 735 was tailor-made to benefit energy companies, and encouraged coal use at a time when the world was moving toward the Paris Climate Agreement and the curbing of fossil fuels. Carlos Rittl, executive secretary of the Climate Observatory, said that MP 735 “goes completely against global efforts to reduce greenhouse gas emissions.” However, the measure was not revoked.

Environmentalists and social movements also campaigned against MP 458, later backed up by MP 759, which introduced significant changes to an already existing program known as Terra Legal. The government said the measures would provide land security to poor, peasant families. But in practice, the MPs introduced multiple loopholes allowing wealthy landowners to utilize the program. Analysts predicted that the revised Terra Legal program would result in 20 million hectares (77,200 square miles) of the Amazon biome, and 40 million hectares (154,440 square miles) of the Cerrado, savanna biome, being legally deforested. Opponents failed to stop the measure.

Activists were more successful in stopping a provisional measure, announced in April 2017, that would have dramatically slashed the size of conservation units in Pará state, reducing protection to more than 1.2 million hectares (2.9 million acres) of already conserved forest. Most severely affected would have been Jamanxim National Forest. President Temer’s MP dismembering the conservation units was badly received abroad, particularly in Norway, which he was about to visit. In the end, the President vetoed the measure that his own administration had proposed. However, a draft bill with similar content is now slowly making its way through Congress.

The Caatinga tropical dry forest where three new reserves have been created. Photo by Trigueiro martins licensed under the Creative Commons Attribution-Share Alike 4.0 International license

New conservation units created

Environmentalists received more good news last week. On his last day in office before beginning a run for the Brazilian senate, environment minister José Sarney Filho created five new conservation units, encompassing 1.2 million hectares (4,630 square miles).

He created two new units, a National Park and an Area of Environmental Protection. in Bahia state. The action is seen as vital by conservationists. Bahia is located within the Cerrado biome, which once covered two million square kilometers (772,204 square miles). But agribusiness is rapidly converting the biome’s natural vegetation to cropland and pasture, and less than half of the Cerrado remains in a natural state today, while a mere 7.5 percent has been protected.

Sarney Filho also created three “extractivist reserves,” areas inhabited by traditional populations practicing sustainable lifestyles, in Maranhão state. The designation gives families greater legal protections against invading land grabbers and miners.

The new extractivist reserves are particularly important because they are within the Caatinga, a tropical dry forest biome exclusive to Brazil, which evolved to withstand severe droughts. The Caatinga covers 11 percent of Brazil but has already lost half its native vegetation. The new reserves will provide a refuge for the jaguar, (Panterha onca), threatened with extinction in the Caatinga and the Atlantic Forest.

Three weeks ago the environmental minister also created four massive marine reserves. Although an important step on paper, some biologists fear that the conservation of vast ocean areas may have little meaning without significant outlays for enforcement. The creation of marine reserves also occurs as Brazil dramatically ratchets up its sale of offshore oil leases to transnational oil and gas companies.

Even so, these recent advances show that, despite the undoubted influence of the rural caucus over both the executive and legislative power in Brazil, environmental progress is possible. For many environmentalists, this in itself is a reason for hope.

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A view of the Tapajós River. Five of the conservation units that MP 558 reduced in size were along the Tapajós in the heart of the Amazon. Last week, Brazil’s Supreme Court declared MP 558 unconstitutional. Photo by Jose Manuel Morales licensed under the Creative Commons Attribution-Share Alike 4.0 International license