In 2010, a Brazilian colleague and I were invited to lecture on environmental permitting at the Federal University of Pará in Belem, Brazil. The state of Pará is to be home to the proposed Belo Monte Dam. Nonetheless, we deliberately chose not to discuss the dam. Feelings run so strongly on both sides of the issue that it seemed presumptuous for a North American (me) and a Brazilian from the south of the country (my colleague) to swoop into the region and opine on such a controversial topic. We decided instead to speak in general terms about the vagaries of permitting. However, because permits lie at the heart of the Belo Monte legal battle, the title of the talk led some to think that we would be discussing the dam. The room filled with partisans.
During the Q&A, someone asked the inevitable Belo Monte question. Even as I attempted to stammer out a diplomatic deflection, an audience-member jumped up, declared "I can answer that," put his laptop under his arm, and strode to the podium. He then delivered a 25 minute disquisition on why Belo Monte was both legal and desirable. In all of the scores of talks I have given all over the world (and all over Brazil), I have never seen anything like that. But then, Belo Monte inspires behaviors one does not often see. For example, a few years ago, a Kayapó woman placed her machete against the face of an Eletronorte representative and demanded that the dams not be built. When considering the legal landscape of Belo Monte, it is worth surveying the cultural and physical geography as well.
From an engineering perspective, the Belo Monte site is a veritable dreamscape. It offers an 87.5 meter drop in elevation and an average streamflow of 7851 cubic meters per second. Once complete, it will be the world's third largest dam. However, the dam will also back up the Xingu River and create significant disruption and possible dislocation of the Arara, Juruna and Kayapó peoples who live downstream. The litigation and social unrest generated by the Belo Monte debate offer an unvarnished albeit confusing look into the still turbulent world of Brazilian environmental law and policy, particularly in the Amazon. Indigenous rights, Amazon conservation, energy and environmental policy and the bare-knuckled, often mercenary realm of Brazilian politics are all implicated. Meanwhile, the judicial opinions issued in the last several months reveal that the matter remains far from resolved.
Proposed in 1987 by Electrobras, a Brazilian power company, Belo Monte formed part of a massive six-dam project. Rampant opposition led to the tabling of five of the dams as well as the renaming of the remaining one ("Belo Monte" which means "Beautiful Hill" used to be called "Kararão," which is a Kayapó war cry). Cost estimates for the dam run to $17 billion, with principal funding coming from the Brazilian National Development Bank (BNDES). Though the dam could theoretically generate 11,233 megawatts, during the three to five month dry season it would only work at 10 percent of capacity. That means that over the course of the year, the dam would produce a total of 4,462 megawatts 39 percent of its nominal capacity. In addition, 30 percent of that 39 percent will go to power aluminum refineries and other extractive industries in the region. Furthermore, the other five dams that formed part of the initial project have never been conclusively dismissed. Many fear that if Belo Monte goes forward, the other dams will soon follow.
For these and many other reasons, the project has been embroiled in litigation for decades. However, during the last six years, it has gained momentum and even a sense of inevitability despite widespread protests and threats of violence from the indigenous tribes whose lands and lives are at risk. Under President Luiz Inacio Lula da Silva, the Belo Monte project was declared a priority. In 2005, notwithstanding lingering questions about the completeness of the environmental impact review and vehement resistance from the affected indigenous groups, the legislature fast-tracked the dam's construction. More litigation followed. The Federal Public Prosecutor's Office sued, claiming that the indigenous peoples had not been consulted as required by Article 231 of the Brazilian Constitution. Nevertheless, Lula's successor, President Dilma Rousseff, has continued to push for the dam's construction.
Between September and November 2011, a divided federal court ruled in favor of the project (in Brazil, judicial panels release opinions one at a time). The first judge to opine, Judge Selene Maria de Almeida, stated that the project could not go forward. She cited the failure to consult with affected indigenous communities as well as violations of Brazil's international obligations under International Labour Organization Convention No. 169 and other international agreements protecting indigenous peoples. A second judge, Judge Sebastiao Fagundes de Deus, quickly disagreed, stating that the dam's licensing requirements mitigated any potential damage to indigenous lands and that the project as licensed was legal.
On November 9, 2011, the panel's third judge, Judge Maria do Carmo Cardoso, broke the tie in favor of Belo Monte. Since the dam would not be physically located on tribal lands, she saw no need for consultation with the indigenous groups. She also noted that while such consultations were "informative," they were irrelevant for congressional decisions on whether to authorize mining and hydroelectric projects on indigenous lands. The conflicting opinions of the panel, as well as the fact that the case involves a constitutional issue, all but assure that it will eventually land before the Supreme Federal Court of Brazil.
So, the 24-year odyssey of the Belo Monte project remains unfinished with many questions still unanswered. Opponents of the dam claim that the rule of law has been thrown under the bus in the name of a boondoggle hydro-project that offers little benefit while despoiling the Amazon, displacing native peoples and providing subsidized energy to extractive industry. Proponents argue that hydro-power remains one of the few sources of cheap, clean energy, that the benefits of the project far outweigh the costs, and that the rule of law has been scrupulously followed.
For my part, I feel no more comfortable opining about the dam today than I did in 2010. Back then, I even offered to sing a show tune rather than discuss it (the audience demurred...). I will say, however, that in my view, there has been far too little discussion of the wisdom of building an inefficient hydroelectric facility in an age of increasing regional water shortages brought on by climate change. The Amazon has faced worsening cycles of drought in recent years and there is every reason to believe those cycles will increase in frequency and severity. As an emerging and already powerful economy, Brazil must ensure its ability to create and deliver clean energy to meet growing demand. This dam seems unlikely to do that. Given the fragility of the affected cultures and ecosystems, the permanent costs of the project should be carefully weighed against the putative benefits. That will be true no matter what the Supreme Court decides.
David Cassuto is a Professor of Law and the Director of the Brazil-American Institute for Law and Environment at Pace Law School. He teaches in the areas of property, professional responsibility, animal law, water law, international comparative law and legal and environmental theory. He was previously a Fulbright Fellow at FGV Direito Rio, in Rio de Janeiro, Brazil in 2010, and is a visiting professor at the Federal University of Bahia, Brazil.
Suggested citation: David Cassuto, Belo Monte: The Legal Waters Continue to Roil, JURIST - Forum, Dec. 9, 2011, http://jurist.org/forum/2011/12/david-cassuto-brazil-dam.php.
This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com