By Gabriela Pinheiro
Intro
This blog post is the fourth in a series that we, at the Leadership for the Ecozoic (L4E) Law & Governance Research Group, are writing in relation to our current project on ecological law case studies. In this series, we strive to provide a glimpse of an alternate world shaped by the principles of ecological law. The emerging field of ecological law seeks to spur deep social, economic, and legal transformations in order to address the panoply of environmental justice crises the planet is facing.
Each blog will explore the current research that L4E is conducting with 5 project teams on case studies across the globe. These include wildlife management in Vermont, the impact of the St. Lawrence Seaway on Kahnawà:ke in Canada, the environmental degradation of the River Ethiope in Ethiopia, the impact of High Seas law on marine biodiversity and the proposed Anitápolis mine in Brazil. Each case study will highlight the laws that allowed various development or policy projects around the globe and offer a reimagination of these projects in an ecological law framework.
Our fourth case study relates to the proposed phosphate mine and sulphuric acid factory in the Brazilian town of Anitápolis, located in the state of Santa Catarina. The case study will analyze the international, constitutional, state as well as municipal laws that underpinned the initial approval of the phosphate mine in Anitápolis. Given the predominant role foreign multinational mining companies played in this environmental conflict, we will also briefly speak to the neocolonial nature of power relations. In case you missed it, our blog on the impact of the St. Lawrence Seaway on Kahnawà:ke in Canada can be found here, our blog on the environmental degradation of the River Ethiope in Ethiopia and current efforts to have the rights of the River recognized can be found here, and our latest blog on the impacts of the proposed BBNJ treaty on marine biodiversity in the high seas can be found here.
What is ecological law?
For those who are not familiar with ecological law, we will provide a brief overview of its fundamental principles. If you wish to learn a little more about ecological law, you can read the first blog in this series.
As expressed in the ELGA Oslo Manifesto, ecological law “is based on ecocentrism, holism, and intra-/intergenerational and interspecies justice.” It is about refocusing our legal systems so that they no longer prioritize the interests of humans over the integrity and health of ecosystems or the interests of our non-human neighbours. Planetary boundaries, such as the amount of GHGs humans can safely emit, would provide clear limits on human activity.[1] Intra-/intergenerational justice would also require that our laws impose equity between current governments in the Global North and future generations, Indigenous and racialized communities as well as peoples in the Global South. Finally, ecological law would incorporate interspecies equity into our legal systems; ensuring that the lives, needs and interests of other beings are considered along with those of humans. This recognizes that we share the Earth with a plethora of other species who have just as much of a right to live and strive here as we do.
Carla Sbert, a scholar of ecological law, has put forward three interconnected principles at the heart of ecological law. First, ecocentrism recognizes the interconnectedness of all beings and their equality. Second, ecological primacy ensures that human activity does not irreparably damage ecology. This entails respecting planetary boundaries, limiting material and energy consumption to respect ecological limits as well as restoring ecosystems. Third, ecological justice demands that intergenerational, intragenerational and interspecies equity be part of our laws. [2]
Anitápolis’ Phosphate Deposit
Anitápolis is a small town of roughly three thousand people located in the Atlantic Forest, in a mountainous and biologically diverse region of the state of Santa Catarina, Brazil. Once a phosphate deposit was discovered near the town in the 1920s, the government expropriated large swaths of land for a potential mining operation. This expropriation obviously had significant impacts on the town and its inhabitants. Notably, the expropriated lands were some of the most fertile lands in the town, a severe blow considering the economic base of Anitápolis is primarily agricultural.
Despite the government’s haste to expropriate these lands, the deposits had not actually been explored. It was not until approximately 30 years ago that a Brazilian company started to explore the phosphate deposits in Anitápolis. It took another few decades for Bunge, another mining company, to take control of the deposits and apply for a license to mine the phosphate and build a sulphuric acid factory in order to produce fertilizers. Bunge, which has its headquarters in the United States, is one of five multinational companies that dominate the phosphate production economy in Brazil. The other four are Fosfértil (which, pending a judicial decision, could merge with Bunge), Copebrás (which belongs to the English multinational Anglo American), Ultrafértil (which is controlled by Fosfértil) and Serrana (which is owned by Bunge). As we will explore below, the dominance of a few foreign multinational corporations in the Brazilian phosphate sector has neocolonial implications, beyond the problematic monopolistic concentration of economic power it represents.
In response to this renewed interest in the Anitápolis phosphate deposits and Bunge’s proposed mine and sulphuric acid factory, a number of environmentalists created the NGO Montanha Viva (“The Living Mountain”). Montanha Viva sought to raise awareness about the environmental and social risks associated with the mining development project. Notably, a large area of Atlantic Forest Biome, which provides crucial shelter to a number of endangered flora and fauna species, would have to be cut to make way for the proposed mine. Further, the proposed mine posed severe risks of soil and water contamination, which could result in detrimental health consequences for the local population. Finally, the heavy industrial traffic a large mine would bring to such a small town like Anitápolis would necessarily have social and environmental consequences.
Judicial Action
In 2009, the Institute of the Environment of the State of Santa Catarina (IMA – previously known as FATMA) granted Bunge an environmental license allowing it to move ahead with the extraction project in Anitápolis. Montanha Viva responded by filing a lawsuit against Bunge, IMA as well as the local, state and federal governments. In so doing, they sought to protect the interests of the residents of Anitápolis as well as prevent the destruction of environmentally protected areas of the Atlantic Forest Biome. Their legal challenge was partially successful and the court granted a preliminary injunction to the NGO which suspended the effects of the impugned license granted by IMA.
In 2016, before the matter was tried on the merits, Bunge withdrew from the licensing process and the judicial dispute was taken off the court docket. However, Montanha Viva has appealed to the Superior Court of Justice to request that the issue be heard on the merits so as to have a final judicial pronouncement preventing the implementation of any future mining project in Anitápolis. These fears are in part fuelled by the fact that Bunge sold their mining claim in 2016 to Vale – the company infamously responsible for 2 deadly tailings dam collapses in Brazil in 2015 and 2019. Vale is allegedly in negotiations with the American-based Mosaic Company over the Anitápolis deposits. While Montanha Viva’s appeal to the Superior Court is still ongoing, the NGO’s legal team has indicated that they are prepared to turn to international tribunals if they do not receive the relief sought through the national courts.
International and Constitutional Law
Ecological law principles underpin article 225 of the Federal constitution which states that “everyone has the right to an ecologically balanced environment, which is a public good for the people’s use and is essential for a healthy life. The Government and the community have a duty to defend and to preserve the environment for present and future generations.” Notably, the duty to preserve the environment for future generations embodies part of the ecological justice principle of ecological law. This recognition of a duty to future generations is also in line with international law; see for example Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights.
Unfortunately, a number of other articles in the constitution have a developmental character which has been utilized to frame public interest as the exploitation of valuable natural resources for the benefit of humans. This not only undermines the efficacy of article 225, but also violates ecocentrism and ecological primacy principles of ecological law. Thus on its own, article 225 is insufficient to uphold ecological principles. However, it remains an important legal tool and distinguishes Brazil from most Western countries where there is no recognition of an environmental constitutional duty to future generations.
State and Municipal Law
As we review state and municipal law, we will highlight two main issues: (1) the conflict of competence in environmental matters related to licensing and inspection organs; and (2) the granting of an environmental license to Bunge for its proposed mine.
The current environmental licensing process does not uphold ecological law principles. This is because most Brazilian doctrine adopts an anthropocentric view of the purpose of licensing, in that it treats valuable natural resources primarily as something to be exploited for the good of the greatest number of humans.
On the other hand, Santa Catarina’s State law 17.895 to some extent reflects the principles of planetary boundaries, as well as a system-based approach which recognizes the finite nature of certain resources and the necessary consequences that flow from their extraction. The law establishes a zone free of exploitation of natural phosphate or phosphate rock derivatives and storage of sulfur subjected to chemical reactions aimed at the production of sulphuric acid.
Thus, by surveying international, constitutional, state as well as municipal laws, our case study will highlight the many shortcomings of the Brazilian legal system in upholding ecological law principles. But we also manage to find areas where ecological law principles are already embedded in the law demonstrating a clear path forward towards greater implementation of ecological law.
A Decolonial Lens
We wish to end our case study with a decolonial lens. Drawing from Anibal Quijano’s work on the coloniality of power, we can highlight how Bunge’s investment in the phosphate deposits in Anitápolis continue colonial relations in economic and political spheres in Brazil. Thus, while the formal colonial system may have been dismantled years ago, the power relations and exploitation continues through private actors such as Bunge. Further, the concepts of social fascism, and particularly territorial fascism, articulated by Boaventura de Sousa Santos aptly describe Bunge’s presence in Anitápolis. Territorial fascism describes situations where social actors with strong patrimonial capital, such as Bunge, remove the state from control of the territory on which they operate. They do so either by coopting or coercing state institutions in order to wield social and environmental regulation to achieve their own ends to the detriment of the interests of local communities.
All in all, the proposed mine at Anitápolis reveals the current anthropocentric lens of environmental law which depicted the project as a net positive for the economy and failed to recognize the environmental and social harms it would create. In response, we need to adopt an ecological law perspective that will truly enforce principles of integrity and communion with Nature, learning with knowledge that transcends Western Modernity.
Further Readings on Ecological Law:
Kirsten Anker et al, eds. From Environmental to Ecological Law (Routledge, 2020).
Carla Sbert, The Lens of Ecological Law: A look at mining (Edward Elgar Publishing, 2020).
Klaus Bosselmann & Prue Taylor, Ecological Approaches to Environmental Law (Edward Elgar Publishing, 2017).
Geoffrey Garver, Ecological Law and the Planetary Crisis A Legal Guide for Harmony on Earth (1st ed, Routledge, 2021).
“From Environmental to Ecological Law: The future lies ahead” (2019) 43:3 Vt L Rev 1.
[1] Geoffrey Garver, “The rule of ecological law: The legal complement to degrowth economics” (2013) 5:1 Sustainability 316.
[2] Carla Sbert, “El Salvador's Mining Ban and Mining in Ontario's Ring of Fire from the Lens of Ecological Law” (2019) 43:3 Vt L Rev 517.