A series of acts, including a provisional measure and decrees, already signed by President Luiz Inácio Lula da Silva (PT) generated doubts and apprehension among entrepreneurs in the sanitation sector.
The texts bind the National Water and Sanitation Agency (ANA) to two different ministries and contradict current legislation on the agency’s role in editing reference standards for the water, sewage and waste segment. Behind the scenes, businessmen say that the changes could generate legal uncertainty and affect new investment projects.
One of the main points of this insecurity, according to businessmen, was generated by Provisional Measure 1154/2023 (which defines the attributions of the 37 ministries of the new government) and by the decree that details the structure of the Ministry of Cities.
The text of the MP amends article 3 of the law creating the ANA by transferring the agency’s responsibility from the Ministry of Regional Development to the Ministry of Environment and Climate Change.
The same adjustment to article 3 removes the mention of sanitation from the name of the ANA, in addition to excluding the wording given by the sector’s legal framework that the agency is responsible for establishing reference standards for the regulation of water and sewage services — one of the main pillars of the law in force since 2020, and whose main objective was to open this market to the participation of private companies.
The decree referring to the Ministry of Cities assigned this role to the Ministry’s National Secretariat for Environmental Sanitation.
“The National Secretariat for Environmental Sanitation is responsible for establishing the reference standards for the regulation of public basic sanitation services and monitoring their implementation process”, says the text published in a special edition of the Official Gazette (DOU) on Sunday.
In December, the Estadão/BroadcastGrupo Estado’s real-time news system, showed that the Cidades transition group — which had among its members the elected federal deputy Guilherme Boulos (PSOL-SP) and the former governor of São Paulo Márcio França (PSB) — already discussed change in the agency of the sector.
Sector fears new changes in legal framework rules
Entrepreneurs interviewed by Estadão/Broadcast point to the overlapping of norms since the publication of provisional measures and decrees by the government of President Luiz Inácio Lula da Silva.
They point out that a decree cannot supersede a law and that, therefore, the National Water and Sanitation Agency (ANA) must maintain its competence in issuing reference standards for the sector.
The problem lies in the legal uncertainty raised by these conflicts. Among the sector that defends the maintenance of the legal framework, there is still fear that the acts are a sign that the Lula government, in fact, wants to change the law sanctioned in 2020 — as suggested by the thematic group Cities in Transition.
Among the conflicts pointed out by the businessmen, is the fact that, despite the MP having transferred the ANA to the Ministry of the Environment, both the structure decree of the MMA and that of the Integration and Regional Development portfolio provide for the agency’s binding — including with the term “sanitation” in its name.
In the Bolsonaro government, the ANA was linked to the Ministry of Regional Development, which was now dismembered by Lula into a folder for Cities and another for Integration and Regional Development.
With more than 80 regulatory agencies spread across the country, the provision of water and sewage services has historically suffered from the fragmentation of regulatory rules – which interfere with issues such as tariff collection.
The scenario, together with the old law that allowed state-owned companies to close contracts with municipalities without bidding, scared away private investment in sanitation.
In order to try to provide more legal certainty and solve the delay, symbolized by almost half of Brazilians who still live without access to the sewage network, the 2020 milestone assigned to the ANA the mission of editing reference standards to guide the work of the bodies that regulate the water and sewer contracts.
Source: CNN Brasil
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