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Belo Monte Hydroelectric Dam :

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

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Belo Monte Hydroelectric Dam :

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  1. 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

  2. BELO MONTE: Whereisthework? Is a construction project a hydroelectric dam in Xingu River Bend Photo: Época Magazine State of Pará - Northern Brazil; Altamira: affected major city Photo: MilitancyAlive

  3. 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

  4. The polemicalwork • 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. • 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 Photos: Norte Energia S/A

  5. The polemicalwork • Economic Dimension • It´s financing by National Bank for Economic and Social Development (BNDES) - apublic bank – provided: • R$ 22.5 billion for thework • 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.

  6. Negative potentialuncertainties • 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!

  7. Mainsocio-environmental impacts – risks - damages • The local indigenouscommunitiesand 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

  8. Mainsocio-environmentalimpacts– 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)

  9. 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)

  10. 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;

  11. Focus ofthisanalysis • Temporal focus: conflict judicializationwill 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.

  12. 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

  13. Environmental licensing • “Partial Installation License” • provided by IBAMA, pressed, on january/11; • Butsuch 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. 968-19.2011.4.01.3900 Photo: Greenpeace/Estadão

  14. 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.

  15. 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;

  16. 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 environmentalcondition • 26 indigenousconditionings *ACP n. 25997- 08.2010.4.01.3900

  17. Environmental impact previous study Irregularities • Environmental impactstudieswasmadewithout “ReferenceTerm” of IBAMA – a requireddocument*; • 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 andImprobityAction 2009.39.03.000363-2

  18. 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

  19. Popular participation Photo: Época Magazine Photo: Eco Debate Art. 231, §3º: “The use of water resources, including energetic potential, […] on Indian lands may be effected only with authorization from Congress, afterhearing the affected communities;

  20. 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 cities • In 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

  21. Environmental and social impacts • AnACP notedthat: • Belo Monte violatesnaturerightand • 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 • Butpreliminaryorderwasdenied *ACP: 0028944 - 98.2011.4.01.3900

  22. 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

  23. Compliance of studies conditionings • ACP* by Noncompliance with the conditionings set for the viability of the enterprise; • Preliminaryorderprovided 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 • IndigenousLands • 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

  24. The Supreme Court (STF) and Belo Monte • August, 2012: The Supreme Court provided the preliminary order filed by AGU in suspendedFederal 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)

  25. Anactionthatstopped 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

  26. 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

  27. The conclusions • The conflict judicializationdemonstrates: • 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.

  28. The conclusions • Belo Monte challenges of conflict resolution mechanism: • legal mechanisms for resolving conflicts, about the dimension of Belo Monte, aren´t effectiveto end the conflict • It´s a affront to: • Environmental sustainability! • Human Rigths! Photos: Xingu Vivo Para Sempre

  29. 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

  30. 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/verNoticiaDetalhe.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

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