Belo Monte Hydroelectric Dam:

a model of environmental unsustainability that challenges the

legal mechanisms for resolving conflicts

Norma Sueli Padilha (UNISANTOS / UFMS)

Josilene Hernandes Ortolan De Pietro(Mackenzie* / UFMS) *This work was supported in part by Mackenzie Research Fund

Photo: Amazonia.org

BELO MONTE: Where is the work?

Is a construction project a hydroelectric dam in

Xingu River Bend

Photo: Época Magazine

State of Pará - Northern Brazil;

Altamira: affected major city

Photo: Militancy Alive

BELO MONTE COMPLEX Brazilian energy planning

project that will be implanted on the Xingu River; Xingu River Basin occupies

two states: Pará and Mato Grosso;

It´s part of a government plan - “Acceleration of Growth Plan (PAC)”

Would be the third largest hydroelectric of the world

Smaller than just : Itaipu Hydroelectric

(belongs to Brazil and Paraguay)

Three gorges (CHINA)

Photo: ELETROBRÁS

The polemical work

Economic Dimension• Estimated: R$ 16 billion • Auctioned for $ 19 billion• Financed for $ 28 billion• Two years after the start of work, the

value already exceeds R$ 30 billion• may increase further with the

difficulties to bring forward the construction

Area: about 400 km2 where there are 8 indigenous lands, and river towns.

Reservoir will have 516 km2 in areas of 05 cities in Pará.

It´s been constructed since June, 2011.

Photos: Norte Energia S/A

The polemical work Economic Dimension

It´s financing by National Bank for Economic and Social Development (BNDES) - a public bank – provided: R$ 22.5 billion for the work R$ 3.2 billion to meet the conditionings

The loan is linked to compliance with environmental restrictions;

Green Protocol: - BNDES signed in 2008 and pledged not to finance

projects that cause irreversible environmental and social damage.

The MPF (Federal Department of Justice - defense institution democratic state of law) questioned the BNDES about the potential negative and risks-damage.

Negative potential uncertainties

Energetic dimension

The Xingu river is seasonal -> droughts and floods are very sharp; How to maintain continuous average maximum production by

hydroelectric dam over the years?

The capacity is questionable! River’s variations can be reduced to zero!

Main socio-environmental

impacts – risks - damages

The local indigenous communities and local populations

Unemployment due to large migration of people to the region, it´s estimated that more than 30,000 will stay there after the end of the works;

Proliferation of diseases caused by the place conditionings;

Increased crime and violence in cities and sexual violence;

Growing so fast and can´t accompanied by appropriate structure.

Photos: Xingu Vivo Para Sempre

Main socio-environmental impacts – risks - damages

Relocation of more than 20 thousand families living in the vicinity of Altamira and rural area of Vitória do Xingu

Deviation of a single river considered from the biodiversity point of view (Xingu River Bend)

Destruction of ecosystems

Flooding of vast forest areas

Emission of greenhouse effect gases

Biological impacts to the reduction of water levels in the river

Damage to aquatic diversity (dozens of fish species)

Conflict judicilization

The most raised conflicts in Court demands are with ground affront to the Federal Constitution (CF) and violations of environmental law. The art. 225 (CF) gives broad

protection to the environment!

Photo: STF

Dozens of lawsuits were filed, most of them by MPF and also by social movements

Some were dismissed by the Court;

Other extinct without trial on the merits.

There is a war of preliminary order - and the few provided most are dropped by resources of the Union Attorney General (AGU – responsible institute for the

Federal State defense)

Main objects of litigation

Environmental licensing;

Environmental impact previous study irregularities;

Compliance of studies conditionings;

Art. 176 and Art. 231 of Federal Constitution – indigenous question;

Environmental and social impacts - biodiversity

Popular participation - in public policy decisions;

Violation of the information right, publicity and transparency;

Hydroelectric Dam´s Auction;

Feasibility / economic impact - economic and energy dimension;

Indigenous land;

Focus of this analysis

Temporal focus: conflict judicialization will be analyzed from the environmental licensing process;

Focus in theory: some of the main lawsuits which suggest serious violation of the Federal Constitution and environmental legislation, filed mainly by MPF.

Environmental licensing

Competent Agency: Illegal Licensing by the STATE - Licensing by the Department of Environment

of Pará*; the jurisdiction of the licensing was IBAMA (Brazilian Institute for the Environment and

Renewable Natural Resources: institute responsible for the environment defense); because the Xingu River is federal and its development occurs on indigenous

land; This action were judged (res judicata) – determined that IBAMA is the

competent.

Preliminary license (LP): prior license was provided with 40 conditionings Main relating to:

water quality, wildlife, sanitation, population affected, social compensation and recovery of degraded areas.

The conditionings meet the relevant manifestations presented by the communities, federal agencies and prosecutors.

*Public Civil Action – ACP – MPF – n.2001.39.00.005867-6 5850- 73.2001.4.01.3900

Environmental licensing

“Partial Installation License” provided by IBAMA, pressed, on

january/11; But such license doesn´t exist in Brazilian

law!

the license provided by the President of IBAMA EVEN against the technical opinion the agency itself and against the recommendations of the MPF*;

the opinion of IBAMA demonstrated that the conditionings about health / education / sanitation/ surveys of affected families and navigability weren´t met by the entrepreneur.

*ACP n. 968-19.2011.4.01.3900Photo: Greenpeace/Estadão

Environmental licensing

But even then the license was provided;

In this ACP, preliminary order was provided by the court ordering stoppage of work, in 16th December, 2013. This also prevents the BNDES to transfer financial

resources while the 40 conditionings of the previous license aren´t met by the entrepreneur.

But the president of the court dropped the preliminary order after 03 days.

Environmental licensing

Installation License

Authorizing the start of construction or project installation.

Photo: Xingu Vivo Para Sempre

provided on june, 2011

This was provided without complying with the 40 conditionings of the previous license.

Then there violation of the environmental license provided, because: Disorder between the dam works and damages compensation works Refuse of the entrepreneur to fulfill the condition of territorial protection of

affected indigenous lands;

Dam´s Auction Judicialization

A Public Civil Action tried to suspend the auction until the Art. 176 (Federal Constitution) was regulated* This requires that any use of hydraulic potential on Indigenous lands

can only happen if a law, regulating this article, had been published;

Preliminary order was dropped and then the auction happened Successfully bid by North Energy Consortium Corporation (NESA)

conditionings Imposed: the entrepreneur and the Federal Government made with IBAMA to

obtain and maintain the authorization of the project, ensuring its environmental sustainability. 40 environmental condition 26 indigenous conditionings

*ACP n. 25997- 08.2010.4.01.3900

Environmental impact previous study Irregularities

Environmental impact studies was made without “Reference Term” of IBAMA – a required document*;

The three largest contractors in the country were hired to make such studies, without license**

They are engineering companies interested in their own building! They had inside information about the Project.

IBAMA has accepted the incomplete delivered environmental studies, contradicting opinions of the crew. ***

*ACP: 2007 - 2007.39.03.000283-9

**ACP: 2008.39.03.000218-1

*** ACP: 2009.39.03.000326-2 and Improbity Action 2009.39.03.000363-2

Environmental impact previous study Irregularities

Public Hearings weren´t considered in the analysis phase of the environmental studies*;

studies of the environmental impacts insufficient - not predicting impacts and compensation for the indigenous population of the area direct affected**;

*ACP: 25999- 75.2010.4.01.3900

**ACP: 0025799 - 63.2013.4.01.3900

Photo: Lalo de Almeida/Folhapress

Popular participation

Art. 231, §3º: “The use of water resources, including energetic potential, […] on Indian lands may be effected only with authorization from Congress, after hearing the affected communities;

Photo: Época Magazine

Photo: Eco Debate

Popular participation

Illegality of Congress Resolution n. 788/05 - which was approved in Congress authorizing the implementation of Belo Monte (in 15 days)*

without hearing / consultation of indigenous communities court ordered stoppage of the dam but the president of

Supreme Court suspended that.

Public hearings were held nine days after delivery of the environmental impact studies:

In only 4 among the 11 affected citiesIn small place + with heavy police guard

They were preventing the participation of affected populations**

*ACP: 2006.39.03.000711-8

**ACP: 2009.39.03.000575-6

Environmental and social impacts

An ACP noted that: Belo Monte violates nature right and Violates the future generations sustainable

development rigth*

This ACP – request: To stop proceeding whit Belo Monte Obligation to indemnify the impacts and loss of

biodiversity But preliminary order was denied

*ACP: 0028944 - 98.2011.4.01.3900

Xingu River Bend - biodiversity

A action* was filed by an Altamira´s Association.

To immediately suspend part of the construction of the hydroelectric dam because the project endangers fisheries in the region.

between 500 and a thousand families in the region who depend on fishing to survive would be affected by continuing works.

extinction of several species of fish; Preliminary order was provided but dropped;

* 0000326-37.2011.4.01.3903 – TRF1 – Altamira-PA

Compliance of studies conditionings

ACP* by Noncompliance with the conditionings set for the viability

of the enterprise; Preliminary order provided in 6 th, September, 2013 Required to provide, within 60 days, the acquisition of

properties listed by FUNAI (National Indian Foundation - indigenous agency official in Brazil)

The preliminary order remains valid until now, but the enterprise isn´t fulfilling the order

Indigenous Lands Belo Monte is the first hydroelectric dam in Brazil in indigenous

areas. A law is necessary to permit the operation, but until now, it wasn´t

created.

*1655 - 16.2013.4.01.3903

The Supreme Court (STF) and Belo Monte

August, 2012: The Supreme Court provided the preliminary order filed by AGU in suspended Federal Court decision that had determined the stoppage of the Belo Monte and prevented the IBAMA to practice any act of licensing the hydroelectric dam*, considering the question about of hearing of the affected communities.

*Suspension Preliminary Order n. 125 (STF)

An action that stopped Belo Monte!

April, 2013: an indigenous group occupied the construction site of Belo Monte to protest.

The North Energy company filed a possessory lawsuit, requesting an preliminary order to repossession*. But it was denied by the Court! The protest wasn´t prevented by preliminary order The recovery of possession was negotiated

*681-76.2013.4.01.3903 – TRF1 – Altamira - PA

Controversial Belo Monte Internationalization

Beyond the internal actions the indigenous question raised the debate of the Belo Monte for Inter-American Human Rights Commission. (IACHR) – November/2010*

Denunciation sent to the IACHR in favor of the traditional communities of the Xingu Basin

There was a hearing in the IACHR about  compliance injunction provided, but Brazilian Government didn´t attend.

The IACHR concluded by saying that this discussion goes beyond the scope of the injunction.

*Injunction 382/2010

The conclusions

The conflict judicialization demonstrates: the great controversy between various

sectors of society and affected communities; The lawsuits powerlessness to resolve

conflicts caused by Belo Monte. point to the serious legal irregularities and

numerous environmental damage

The numerous lawsuits and the war of preliminary order against Belo Monte enunciate the failure of the democratic process in the construction work policy.

The conclusions

Belo Monte challenges of conflict resolution mechanism: legal mechanisms for resolving conflicts,

about the dimension of Belo Monte, aren

´t effective to end the conflict

It´s a affront to: Environmental sustainability! Human Rigths!

Photos: Xingu Vivo Para Sempre

The conclusions

The Belo Monte is a great example of unsustainability of the economic development prioritization the expense

of serious environmental impacts disregarding democratic participation in the decisions about

energy public policies!

Photo: Global Brazil Justice

References

RODRIGUES, L. R. Ciência no Tribunal: as expertises mobilizadas no caso Belo Monte. Dissertação de Mestrado. UFSM, 2013.

Belo Monte - os problemas do projeto e a atuação do MPF - http://www.prpa.mpf.mp.br/institucional/prm-altamira/news/2010/noticias/belo-monte-os-problemas-do-projeto-e-a-atuacao-do-mpf

Belo Monte – Painel de Especialistas - http://www.socioambiental.org/banco_imagens/pdfs/Belo_Monte_Painel_especialistas_EIA.pdf

http://www.xinguvivo.org.br/ http://www.mma.gov.br/ http://arte.folha.uol.com.br/especiais/2013/

12/16/belo-monte/ http://www.stf.jus.br/portal/cms/verNoticiaD

etalhe.asp?idConteudo=216344

RODRIGUES, L. R. Ciência no Tribunal: as expertises mobilizadas no caso Belo Monte. Dissertação de Mestrado. UFSM, 2013.

http://norteenergiasa.com.br/site/ http://belomontedeviolencias.blogspot.

com.br/

http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/rcl14404.pdf

www.trf1.jus.br http://www.ibama.gov.br/ Relatoria Nacional do Direito Humano ao

Meio Ambiente – Relatório da Missão Xingu - Violações de Direitos Humanos no Licenciamento da Usina - Hidrelétrica de Belo Monte - http://www.xinguvivo.org.br/wp-content/uploads/2010/10/Relatorio-da-Plataforma-DHESCA-sobre-viola%C3%A7%C3%B5es-dos-direitos-humanos-do-projeto-Belo-Monte.pdf