Court resumed judgments of the so-called “green agenda” with action that questions Jair Bolsonaro’s decree
The Federal Supreme Court (STF) formed a majority this Wednesday (27.Apr.2022) to overturn a section of a decree of the president Jair Bolsonaro (PL) that excludes members of civil society from the deliberative council of the FNMA (National Environmental Fund).
Before the decree, the deliberative council of the FNMA had the following composition:
- Ministry of the Environment: 3 representatives;
- Ministry of Planning, Budget and Management: 1 representative;
- Brazilian Institute for the Environment and Resources: 1 representative;
- Chico Mendes Institute for Biodiversity Conservation: 1 representative;
- National Water Agency: 1 representative;
- Brazilian Association of Environmental Entities: 1 representative;
- National Association of Municipalities and the Environment: 1 representative;
- Brazilian Forum of NGOs and Social Movements for the Environment and Development: 1 representative;
- Brazilian Society for the Progress of Science: 1 representative;
- national civil society organization: 1 representative appointed by the National Environment Council;
- environmental non-governmental organizations: 5 representatives.
With the government changes, the composition now has only representatives from the Ministry of the Environment, Civil House, Ministry of Economy, Brazilian Institute for the Environment and Renewable Natural Resources and Chico Mendes Institute for Biodiversity Conservation.
Rapporteur’s vote
The lawsuit questioning the composition of the Amazon Fund was filed by the Sustainability Network. According to the party, the presidential decree violates the principles of direct popular participation, the prohibition of institutional setbacks and the rights to equality and protection of the environment.
Minister Cármen Lúcia’s vote wins. For her, to exclude civil society from participating in decision-making on environmental public policies violates the Constitution.
“I believe that the elimination of civil society from the entities that make up the National Environment Fund shows a centralization that would be undemocratic, which delegitimizes state actions, in violation of the principles of popular participation”he said.
Also according to her, the decree unbalances the composition of the National Environment Fund by removing representatives from society and retaining representatives from the government and state entities.
“The popular participation of civil society in all instances has always been encouraged by the Constitution, legislation and international documents”continued.
The minister was followed by Ricardo Lewandowski, Alexandre de Moraes, Edson Fachin and Roberto Barroso. André Mendonça voted for the reintegration of civil society, but was against additional requests made by the Network after the lawsuit was filed.
Following Cármen Lúcia, Barroso said that the public administration is interfering with the right to environmental protection and allowing setbacks.
“I verify that, by eliminating the participation of civil society and implementing a public policy that has resulted in an increase in environmental degradation, the public administration is interfering with the fundamental right to environmental protection”he said.
Divergence
Nunes Marques disagreed. For him, there is no obligation in law or in the Constitution regarding civil participation in the Amazon Fund. The magistrate was not accompanied by anyone so far.
“As a political option, it was understood, at a certain historical moment, that this participation of civil society would be useful. At another point, it was decided that this council would be better off without her.”he said.
“Preventing civil society from being excluded from a council is a subtle way of delegitimizing future governments elected by popular vote. It can have the opposite effect, limiting the participation of civil society. If you can’t undo it, then better not do it at all.”continued.
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