The Supreme Federal Court, the highest court of law in Brazilian judicial branch, will decide if a provisional measure (equivalent of an executive order) about preserved areas in Amazon is in accordance with the Constitution.

Provisional Measure number 558 was edited in 2012 to modify the size of three national parks, one   area of protection and three national forests. The changes would be necessary in order to built five hydropower plants in the North region of Brazil. Submitted to the Congress as matter of urgency, the Provisional Measure became Federal Act number 12.678 at that same year.

Terra de Direitos’ legal adviser and responsible for an oral statement under the condition of Amicus Curiae during the judgement, the lawyer Pedro Martin said that the idea of reducing protected areas and the way in which the Provisional Measure became a federal act breached the Federal Constitution, as it establishes that changes concerning enviromental protection areas must be done only originally by legislative acts. Besides, some power plants never got their construction licenses.

The trial has begun on August 16th, but was suspended after associate justice Alexandre de Moraes formally requested an adjournament to study the matter.

After the oral statements in defense and against the ADI – the last one made by the Eletric Energy National Agency – associate justice Carmén Lúcia presented her arguments, recognizing that the reduction of areas of preservation units can not be done by Provisional Measures.

“She acknowledges that, after five year, irreperable damages have been caused – that it is impossible to reverse such damages –, but what is important to the future is that the government has been editing many Provisional Measures to reduce conservation units and she stated that this is not the correct formal proceeding method. The greastest aspect of her vote is the development of a position about the reduction of units by Provisional Measures, including a critical view about the absence of democratic participation in the debate”, says Pedro Martins.

Girolamo Treccani, Law professor at the Federal University of Pará (UFPA), points that it is possible to declare the nullity of the reduction in areas where no power plant has been built.

“In the case of Jirao and Santo Antônio, there is nothing left to be done. In Tabajara, Amazonas, the construction has not started. The great achievement is that the others power plants located on the Tapajós river, of which not even the impact studies have been approved, are unconstitutional and the reduction shall be declared null” states.

As the resumption of the voting process is taking place, the other ten justices must take a position.