Eye on the Amazon

Belo Monte Under Renewed Legal Attack

Brazilian high court demands new environmental study, threatening to paralyze mega-dam

Belo Monte Under Renewed Legal Attack

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Translated by Henrique Gobbi

On March 26th a commission of Brazil's Federal Circuit Court (TRF1) ruled upon an appeal from the Public Prosecutor's office (MPF) stemming from Public Civil Action lawsuit that reveals major irregularities in Belo Monte's Environmental Impact Assessment (EIA). The original lawsuit dates from 2010 when the MPF's original lawsuit questioning the EIA was rejected, paving the way to the approval of the dam's Provisional License, or Licença Previa (LP), which allowed Belo Monte to proceed to auction.

The approval of the LP hinged on 40 conditions that address issues related to water quality, wildlife, sanitation, affected population, social compensation, and recovery of degraded areas, among others. Because the dam-building consortium Norte Energia did not fulfill these requirements within the statutory legal deadline, most of the conditions were transferred to the dam's Installation License, or Licença de Instalação (LI).

According to the rapporteur of the TRF1 case Judge Antonio de Souza Prudente, there were flaws when conducting Belo Monte's EIA that generated a set of uncertainties about its costs and impacts. In addition, the postponement of compliance with socio-environmental conditions stipulated by the provisional license was illegal. Given this situation, and the fact that Norte Energia expects to receive an Operational License this year that allows the Xingu River to be definitively dammed, judge Prudente assessed that the LP should be suspended until all legally mandated conditions are met.

Federal judge Selene Almeida agreed with judge Prudente stating, "Belo Monte is an example of what should not happen in public administration, as regards [compliance with] the standards of environmental licensing." In addition, Judge José Batista heavily criticized Brazil's investments in pharaonic infrastructure projects such as Belo Monte, affirming, "The only concern [in this project] was economic, with a small amount of environmental [concern] and no social concern, especially in regards to indigenous peoples."

Although they agreed with the arguments presented in the original lawsuit, the judges decided to only partially uphold the appeal of the MPF, establishing a period of 10 days (from the official publication of the decision) so that the federal environmental agency IBAMA can determine whether the Norte Energia could conduct a new study on the dam's environmental impacts, considering all elements raised in public hearings, under penalty of having Belo Monte's provisional license invalidated. Under the decision, the company also needs to provide a new Declaration of Reserve Water Availability, considering the irregularities cited by Brazil's water regulatory body (ANA) in 2009, with a ninety-day deadline for compliance with its findings, under penalty of suspending the project.

According to the MPF attorney Felício Pontes, who is one of the authors of the appeal, last week's decision of the TRF1 to not immediately halt Belo Monte by suspending its LP was disappointing, but not surprising. He contends that it demonstrates that the judges understand the legal risks associated with Norte Energia's manipulation of Belo Monte's licensing process, which brings serious consequences for local communities. "The ruling that Belo Monte should conduct a new Environmental Impact Assessment is directly connected with the disastrous flooding of the Madeira River," said Pontes. "The hasty and incomplete studies [to build dams on the] Madeira caused serious damage to the population just as with Belo Monte, and it may also impair the production of energy."

The fact that the dam's construction was not immediately suspended could also be related to the fear that a ruling that canceled the LP would provoke the Dilma Rousseff administration to request a renewed use of the legal mechanism "Security Suspension" to overturn the ruling. Security Suspension was an argument adopted several times by the president of the TRF1 circuit court to defer rulings against the dam, contending that halting the construction of Belo Monte would threaten the country's economic security. However, specialists believe that this same argument cannot be applied when requiring a revision of the dam's Environmental Impact Study.

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