The Trench Warfare in Sanitation

The federal government finally published new decrees regulating Law 11.445/2007, intended, in principle, to complement the new framework introduced by Law 14.026/2020. However, in practice, Decrees 11.466/2023 and 11.467/2023 ended up revisiting premises of the previous regulatory reform, generating various combative reactions, whether through press reports, requests for the suspension of the norms before the National Congress, or through the filing of ADPF 1.055 by the Partido Novo party with the Supreme Federal Court (STF).

The current government’s stance has reinforced the conflicts that have been ongoing since the beginning of the sanitation legislation review process, making clear the trench warfare moment in Brazilian basic sanitation.

It is worth clarifying that the trench warfare tactic became particularly well-known during World War I, when combatants entrenched themselves on either side, starting a war in which neither army advanced significantly. They fought for small plots of land, with exhausting attacks from one trench to another. A position gained one week would be lost the next. The result was disastrous for humanity.

The debate on Brazilian basic sanitation seems to follow a similar pattern, with each issue being treated like a trench, each with fierce shooters ready to bring complexity to defense and attack. Each new case is questioned, with regulations issued by one government only to be revoked by the next, or annulled by the Legislature or the Judiciary.

Perhaps the way to overcome this is to discuss what truly matters, thinking of a model that can surpass entrenched battles but allow debate on the essential. Although there are many issues, three examples stand out in the case of the decrees.

The first example concerns criticisms of the submission of ANA’s (National Water Agency) “reference standards” to the public policy set by the Ministry of Cities. Here it is important to remember that regulatory activity already owed deference to the public policy set by the government. In sanitation, this means that ANA or other agencies could not decide to stop promoting the universalization of services, focusing only on actions aimed at tariff affordability. This is because Law 11.445/2007 established the objectives of the national basic sanitation public policy, giving the principle of universalization central importance for this type of service. Regulation needs to operate within the public policy set by Parliament, which delegated to the Executive Branch to establish federal public policy for the sector, with some national issues, such as goals for reducing losses.

The essential thing, then, seems to be to seek to participate in the promulgation of federal guidelines and monitor the regulations that will be issued as public policy for sanitation in order to, if necessary, question them; remembering, by the way, that the STF has ruled on some demands in favor of the autonomy of regulatory agencies (for example, ADIn 6.033), understanding the state role that this type of institution represents.

The second example is linked to the possibility of maintaining and regularizing precarious service provision situations in certain localities (about 20% of municipalities according to the latest numbers). Here, judicialization seems beneficial to clarify the legality of the measure being issued by decree, given the apparent excess of the regulatory power of the Presidency of the Republic and the confrontation with the duty to bid in the Constitution and applicable legislation.

However, it is also true that the issue should be addressed from two other distinct perspectives. On one hand, one should think about how to regularize these situations vis-à-vis the obligations of tariff affordability and universalization, considering that the new decrees authorize contractual changes and tariff revisions to enable the maintenance of precarious situations. The way to review these situations urgently needs to be discussed if there is a genuine desire to save some of these cases, even temporarily. On the other hand, one should consider that it might be positive to end these precarious situations, with guaranteed compensation payment to the current provider (§5 of art. 42 of Law 11.445/2007), and with the delegation of services to a new operator, clearing regulatory liabilities and allowing greater control of goals. This transfer – which is not trivial – should be the subject of deep discussion to define compensation criteria and the entire process of new delegation. Here indeed lies something essential, whose contours remain excluded from the battles fought so far.

Finally, the third example relates to the possibility of direct provision, by comparison, by a state company when sanitation services are organized within metropolitan regions, urban agglomerations, and micro-regions. This issue has been part of a discussion that has lasted for years since the ruling of ADIn 1842 in the STF, as there are several ADIns questioning each regionalization model that has appeared in the last 10 years. The central point, however, seems to remain in the same questions: What does Brazil want as cooperative federalism?
Is there an invocation of constitutional competencies in the case of common interest? Or does the competency remain with the municipalities that only need to discuss its exercise with other entities? Is it possible to have the exercise by comparison of ownership?

The essential to overcoming the doubts today in the Paraíba model is to return to these simpler questions, given that the STF rulings and existing legislation clearly did not have the power to clarify how the issue of ownership occurs in regionalized cases. Perhaps taking a step back here will allow two steps forward later.

The greatest dangers of trench warfare in sanitation seem to lie in abrupt maneuvers that end up circumventing lines of argument, through a real lightning attack on the legal system, distancing true debate and causing new fronts of combat whose resolution may delay providing the answers that the population needs. In other words, universalization is hindered, increasing the likelihood of revising the goals set for 2033.

An armistice of this war should be obtained as soon as possible, with swift judgments of the pending demands and deepening parliamentary, plural, and democratic debate on what is effectively essential. And what is important must always be the user with the right to universalization.