Por: Amanda Pauli de Rolt, Rodrigo Bertoccelli
BASIC SANITATION: SUSTAINABILITY AND DEVELOPMENT
The economic development of a country is directly linked to the state of its basic sanitation system. Good practices in the field of basic sanitation have concrete and notable effects. Human dignity, a basic principle of the democratic state based on the rule of law, is simply one of the aspects safeguarded by an efficient water and waste treatment process.
The social benefits underpinned by investment in sanitation, amongst other advantages, guarantee return from the economic point of view, which can be directly seen in the economy and in development, including in the growth of the Gross Domestic Product (“GDP”). Within this context, the United Nations (“UN”) included the need to “ensure the availability and sustainable management of water and sanitation for all” in its Sustainable Development Goals (“SDGs”). SDG nr. 6 deals precisely with the concern over the existence of potable and safe water for all, alongside the offer of sanitation and hygiene (since a lack of these can lead to the contamination of the land, rivers, seas and water supply sources), as well as the rational use of water by industry and agriculture.
There is no doubt that there is an urgent need to interrupt the stagnation of one of Brazil’s infrastructure sectors that is lagging far behind, and push for the inclusion of one hundred million Brazilians who currently have no access to waste collection and treatment services and thirty-five million Brazilians who do not have access to treated water, and overcome the losses in the sector (for every 100 liters of water collected and treated in Brazil, 38% is lost as a result of burst pipes, theft and other liabilities in the distribution network).
It is equally deplorable that just 46% of the waste generated nationally undergoes treatment, while almost 74% is sent through the system, and then deposited into nature. This is to say nothing of the proliferation of the landfills found in the large urban centers, a reality in Brazil that affects both the people’s quality of life and the protection of the environment, as well as the competitive standing of domestic industry, that has to deal with low productivity amongst workers due to illnesses and the high cost of water treatment for industrial use.
It is incredible that, in the 21st century, basic sanitation is still a serious problem for the world’s 9th biggest economy. In 2015, a 2013 audit report from the Federal Audit Court was highly emphatic: the situation of sanitary waste in the country is incompatible with the degree of development and the level of domestic wealth. The idea of universalization of the provision of basic sanitation services has not established itself in practice in Brazil. The sectoral, regional and local inequalities, as well as the insufficiencies and omissions of the Public Administration in the provision of basic sanitation services are well known.
The Government is facing a huge challenge to fulfill its constitutional duty to properly provide this public service in terms of increasing the number of homes included in the collection network, implementing systems for the distribution of potable water, expanding water treatment networks, establishing proper final destinations for solid waste, controlling the use of sanitary landfills, and increasing the drainage system along with the reduction of the risk of flooding, amongst other important issues.
The size of the investments necessary to provide universal provision of water and waste treatment means that there is an ever-growing need for the joining of forces between the public and private sectors. The lack of basic sanitation in Brazil is alarming and the partnerships with the private sector constitute an attractive and viable solution, side by side with the municipal agencies and state companies, thus enabling investments and projects that are essential for the health of the country’s infrastructure.
- THE SITUATION IN BRAZIL
Initially, during the period immediately preceding the 1970s, the rural exodus, amongst other social issues, lead to a massive increase in the populations of the urban centers, compounding the latent fragility of the basic sanitation situation. At this time, the sector was under the aegis of the municipalities, its hands were tied, and it was subject to bureaucratic hold-ups, leading to the founding of the first organs and agencies in the sector. However, due to the need for budget resources, standardization, and organs, its development could not be sustained in either a healthy or a sustainable fashion.
Between the 1970s and 1990s, the Federal Government started to create organs and policies in an attempt to address this situation. It implemented the ‘Plano Nacional de Saneamento’ (‘National Sanitation Plan’ / ‘Planasa’), the goal of which was to encourage the creation of ‘Companhias Estaduais de Saneamento’ (‘State Sanitation Companies’ / ‘CESBs’) and lines of funding for investments. Under this scenario, the state companies, which had, until this point, been somewhat ineffectual, started to grow in size and win for themselves the responsibilities that until then had been held by the municipalities. However, due to the serious economic and political crisis that this period became entrenched in, the structures that had been established could be seen to weaken, leading to a depletion of the systems and policies that had been implemented.
In the 1990s, considering the important step forward that was taken in the ratification of a new Federal Constitution in 1988, the country, still shrouded in crises, moved ahead, assisted by an expansion of social awareness in relation to what were essentially basic rights. In this sense, basic sanitation was classified as a social right, as Augusto Neves Dal Pozzo has made clear:
Take note that it is not just that basic sanitation was classified as an essential service due to the Law, but also that, with the Federal Constitution of 1988, inspired by the constitutionalism of the welfare state, it took on the vestige of a social right, from which arises the very dignity of a human being.
The text of the Constitution of 1988 shows that responsibility for providing sanitation services in Brazil falls to the municipalities, but it may be the object of a division of responsibilities between the municipalities and the other federative bodies. It further highlights four provisions that relate to the issue of political-administrative responsibility in relation to the issue of sanitation.
Under the terms of art. 21, paragraph XX of the Constitution, it is the responsibility of the Union to establish the general directives for the sector, whilst it falls to the states and municipalities to define the respective complementary laws.
Despite the responsibility for the provision of the basic sanitation services having thus been established, this being the duty of the municipalities, there is one responsibility that is common to all the federative bodies in relation to the development of more effective public policies. As such, federative cooperation is thus permitted under our legal framework and could be the best option for the provision of services, as noted by Márcio Cammarosano:
(…) despite the responsibility for exploring and regulating a particular public service falling to the title holder, nothing, under the system of cooperation with another federative body, stops it, under the terms of art. 241 of the CR, entering into a legal agreement for cooperation, with the aim of authorizing the associate management of a specific public service and its respective standardization. In this case, the body would not be abdicating itself from a responsibility that was conferred upon it by the Constitution (which, by the way, would be prohibited under the federative principal), since it would simply be authorizing another federative body to participate in the provision, in order to improve the service.
From thereon, during a period that included bureaucratic hold-ups and the lack of a definitive institutional model, in 2007, Federal Law nr. 11.445 was established to define the national directives on basic sanitation, involving, amongst others, the supply of water and sanitary waste disposal.
The regulatory benchmark on sanitation brought about significant changes for the sector, and its provisions lie harmoniously with other legal provisions, for example those found in the Bidding Law (Federal Law nr. 8.666/93), the Concessions Law (Federal Law nr. 8.789/95), the PPP Law (Lei Federal nº 11.079/04) and the Public Consortiums Law (Federal Law nr. 11.107/05).
With this regulatory mark for basic sanitation in Brazil, it was believed that private partnerships would start to be confidently established in the sector. However, the participation of the private sector in this area was lower than had been expected or hoped for, with the state companies or the municipalities having to assume a large, or even total, role in the activities through until now.
Finally, in 2013, the ‘Plano Nacional de Saneamento Básico’ (‘National Basic Sanitation Plan’ / ‘Plansab’) was implemented to define the directives and targets, with the intention that the country should achieve universally-provided services by 2033. This plan is currently under revision. We do know, however, that the target for the universal provision of services set for 2033, under the current rate of investment, is far from achievable. On average, Brazil has invested an annual sum of R$ 10 billion in basic sanitation measures, but this is in fact half the amount necessary according to the targets initially established by the Plansab under its 20-year plan (2014-2033).
The revision of the Plansab should indicate the need for investments in the region of R$ 600 billion for the universal provision of the services, but this sum will not be reached without private capital. It is essential that private investment in the sector increases, since this currently stands at around 6% of the market, and there needs to be discussion and advances on issues such as: regulatory security, competitive isonomy, a strengthening of joint management, and efficiency in the operation and increase of federal resources for the development of high-quality projects.
It is therefore vital that means and instruments are identified that make the target of universal provision of water and waste sanitation services viable and also implement it, in the short term, in order to successfully address the need for investment in infrastructure in the sector, as well as improve the health and growth of Brazil’s economic and social indicators, that are in a fragile state compared to those of other countries in Latin America.
- DEVELOPMENT AND SUSTAINABILITY
As we all know, a lack of basic sanitation brings with its serious risks to health and negatively affects education, the environment and the socioeconomic conditions of the population. Increased investment in sanitation creates direct jobs, provides the people with a better quality of life, and stimulates the economy in value chains.
The impact of water-borne diseases is directly associated with the country’s economy. According to the IBGE (Brazilian Institute of Geography and Statistics), in 2013, the country suffered 14.9 million cases of sick leave due to diarrhea or vomiting (considering that the same person may have been absent from work on more than one occasion over the course of a year).
The official data shows that on each period of sick leave, people are off work for an average of 3.3 days. The projected savings through an improvement in the health conditions of the Brazilian population for the period 2016 to 2036, based upon the absences from work and hospitalizations that were registered in 2016, stand in the region of R$ 297 million.
In 20 years (2016 to 2036), given the gradual advances made in sanitation, the current savings related to health, be it connected to work absenteeism or expenses suffered by the National Health Service, should reach R$ 5.9 billion in Brazil.
It is estimated that each period of sick leave suffered by a worker means a loss of 16.7 work hours, which is the equivalent of a loss of R$ 151.13 per period. Still according to the study, it is therefore estimated that, in 2012, a sum of R$ 1.112 billion was spent on hours that were not actually worked. The universal provision of water and waste services would allow for a 23% reduction in work absenteeism – something in the region of 196,000 fewer days, with gains of R$ 258 million per year.
The conclusion is that the lack of basic sanitation affects human dignity in relation to the natural environment, since, without a balanced environment there can be no proper human development or existential wellbeing. This establishes it at the level of a social right, the offering of which is an essential public service.
The service of basic sanitation is linked to the provision of the water and waste service provided by the government, in relation to the supply of drinking water, sanitary waste, urban hygiene and the management of solid waste, and the drainage and management of urban rainwater. The access to such a service is therefore the conditioning factor in determining the quality of life for the population and the health of the environment. Failure to properly provide the service (in terms of both quality and quantity) can, therefore, be seen as a serious socio-environmental problem.
The social right to basic sanitation plays an enormous part in the combating of poverty and the destruction of the environment, in the sense that its proper provision means there is an efficient defense being made of fundamental social rights, since it is seen as a principle of justice that guarantees the equal distribution of the primary assets that are basic to everyone, regardless of the paths they take through life or the meanings they attach to existence. José Roberto Pimenta Oliveira backs this up when he says that:
Basic sanitation constitutes a public service that is essential to the advancement and achievement of the dignity of a human being. The systematic planning of its provision for the users, and for Brazilian society in general, is the mission of the Democratic State, this being constitutionally tied to the eradication of poverty, the reduction of social and regional inequalities, and the advancement of the common good.
Therefore, when the minimum necessary for life is not achieved, this meaning a lack of access to the material and social assets that are necessary for the development of the human condition, there can be no discussion of individuals in the equal exercise of citizenship in society. This is because the situations of environmental injustice are concentrated mainly in those areas in which the poorer segments of the population live, where the land occupation system, destruction of eco-systems and spatial allocation, negatively affect the health conditions of the poor who are exposed to attacks arising from a lack of support from the public environmental sanitation service – “the world’s water and sanitation crisis is, above all, a crisis of the poor” (UNDP, 2012).
The conclusion is that the lack of basic sanitation affects human dignity in relation to the natural environment, since, without a balanced environment there can be no proper human development or existential wellbeing. This establishes it at the level of a social right the offering of which is an essential public service.
The social right to basic sanitation plays an enormous part in the combating of poverty and the destruction of the environment, in the sense that its proper provision means there is an efficient defense being made of fundamental social rights, since it is seen as principle of justice that guarantees the equal distribution of the primary assets that are basic to everyone, regardless of the paths they take through life or the meanings they attach to existence. Finally, when the minimum necessary for life is not achieved, this meaning a lack of access to those material and social assets that are necessary for the development of the human condition, there can be no discussion of individuals in the equal exercise of citizenship in society.
There is no way of achieving the target of universal provision of a basic sanitation service in Brazil while the political barriers have still not been completely torn down. In order for the country to achieve full economic and social development, in a way that is sound and healthy, the incoherence that permeates the actions of the federative bodies in the defense of their own interests, and which overlaps with the greater interests of the common good, should be eliminated once and for all.
We believe that to transform the reality of basic sanitation and establish the SDG nr. 6, a joint and coordinated effort is necessary between those involved in the public and private sectors, with a clear understanding that the provision of a universal service should be central to all discussions within the basic sanitation sector. Ultimately, it is absolutely necessary that investment is maximized, and the people’s quality of life is improved. No solution for sanitation exists that does not involve the coordination of public and private funds.
- REFERENCE BIBLIOGRAPHY
CAMMAROSANO, Márcio. A divisão constitucional de competências e a cooperação federativa na prestação de serviços municipais de saneamento básico. In: DAL POZZO, Augusto Neves; OLIVEIRA, José Roberto Pimenta; BERTOCCELLI, Rodrigo de Pinho (Coordinators). Tratado sobre o marco regulatório do saneamento básico no direito brasileiro. São Paulo: Contracorrente, 2017. p. 239 -252.
CARLOS, Édison. O saneamento básico como condição essencial para uma vida digna. In: LUNA, Guilherme Ferreira Gomes; GRAZIANO, Felipe Pinto Lima; BERTOCCELI, Rodrigo de Pinho (Coord.). Saneamento básico: temas fundamentais, propostas e desafios. 1. ed. Rio de Janeiro: Lumen Juris, 2017. p. 129-142.
CARVALHO, Vinícius Marques de. O direito do saneamento básico. São Paulo: Quartier Latin, 2010.
DEMOLINER, Karine Silva. Água e saneamento básico: regimes jurídicos e marcos regulatórios no ordenamento brasileiro. Porto Alegre: Livraria do Advogado, 2008.
DAL POZZO, Augusto Neves. A gestão do serviço de saneamento básico pelo instrumento da concessão. In: DAL POZZO, Augusto Neves; OLIVEIRA, José Roberto Pimenta; BERTOCCELLI, Rodrigo de Pinho (Coordinators). Tratado sobre o marco regulatório do saneamento básico no direito brasileiro. São Paulo: Contracorrente, 2017. p. 583 -604.
LUNA, Guilherme Ferreira Gomes; GRAZIANO, Felipe Pinto; BERTOCCELI, Rodrigo de Pinho (Coordinators). Saneamento Básico: Temas fundamentais, propostas e desafios. Rio de Janeiro: Lumen Juris, 2017.
OLIVEIRA, José Roberto Pimenta; DAL POZZO, Augusto; BERTOCCELLI, Rodrigo de Pinho (Coordinators). Tratado sobre o marco regulatório do saneamento básico no direito brasileiro. São Paulo: Contracorrente, 2018.
OLIVEIRA, José Roberto Pimenta. O planejamento do serviço público de saneamento básico na Lei nº 11.445/2007 e no Decreto nº 7.217/2010. In: OLIVEIRA, José Roberto Pimenta; DAL POZZO, Augusto Neves (Coordinators). Marco regulatório de saneamento básico no Brasil. Belo Horizonte: Fórum, 2011. p. 223-261.
 Studying for a Master’s Degree in Administrative Law from the Catholic University of São Paulo (PUC/SP). Graduate in Law from the Federal University of Santa Catarina (2016) and in Public Administration from the University of Santa Catarina (2013), with a period spent studying at Harvard University (Massachusetts, USA). Member of the Public Contracting Research Group at the Catholic University of São Paulo (PUC/SP). Attorney in the sector in São Paulo.
 Graduate in Law and a Specialist in Civil Procedural Law from the Mackenzie Presbyterian University. Post-Graduate Degree in Corporate Contracts – FGV-GVLaw. Executive Extension Course in Business and Compliance at the University of Central Florida and in International Management & Compliance at the Frankfurt University of Applied Sciences. Professor at FIA. Ex-Secretary of Coordination of Basic Sanitation on the Federal Board of the OAB. Member of the IASP Basic Sanitation Commission. Founding President of the IBDEE – Brazilian Institute of Corporate Law and Ethics. Attorney in the sector in São Paulo.
 Goal 6 (Available at: https://nacoesunidas.org/conheca-os-novos-17-objetivos-de-desenvolvimento-sustentavel-da-onu/. Accessed on: 15-May-2019).
 SDG6.1 and 6.3.
 SDG 6.2.
 SDG 6.4.
Source: Instituto Trata Brasil (Available at:
http://tratabrasil.org.br/images/estudos/itb/beneficios/Press_Release_- Benef%C3%ADcios_do_saneamento_no_Brasil.pdf. (Accessed on: 26-May-2019).
 TC 017.5-7.2015-4.
 DAL POZZO, Augusto Neves. A gestão do serviço de saneamento básico pelo instrumento da concessão. In: DAL POZZO, Augusto Neves; OLIVEIRA, José Roberto Pimenta; BERTOCCELLI, Rodrigo de Pinho (Coordinators). Tratado sobre o marco regulatório do saneamento básico no direito brasileiro. São Paulo: Contracorrente, 2017. p. 584.
 Article 23, IX; article 30, V; article 25, §3; and article 200, VI.
 CAMMAROSANO, Márcio. A divisão constitucional de competências e a cooperação federativa na prestação de serviços municipais de saneamento básico. In: DAL POZZO, Augusto Neves; OLIVEIRA, José Roberto Pimenta; BERTOCCELLI, Rodrigo de Pinho (Coordinators). Tratado sobre o marco regulatório do saneamento básico no direito brasileiro. São Paulo: Contracorrente, 2017. p. 248.
 In line with the “Panorama da participação privada no saneamento” (‘Panorama of private participation in sanitation’). (Available at: http://abconsindcon.com.br/wp-content/uploads/2019/04/PANORAMA2019low.pdf. Accessed on: 28-May-2019).
 “Even though Brazil has transformed itself into a strong economy and the engine of the South American economy, the country’s situation in relation to the basic services of water and waste is still far from that of its neighbors, especially Argentina, Uruguay and Chile. In relation to Chile, for example, according to the most recent report from the country’s Sanitary Services Superintendence (SiSS), which takes 2013 as its base, 99.4% of the Chilean population has a direct supply of water; 93.6% enjoys a waste collection service, and the waste of 99.93% of the population is treated.” (CARLOS, Édison. O saneamento básico como condição essencial para uma vida digna. In: LUNA, Guilherme Ferreira Gomes; GRAZIANO, Felipe Pinto Lima; BERTOCCELI, Rodrigo de Pinho (Coord.). Saneamento básico: temas fundamentais, propostas e desafios. 1. ed. Rio de Janeiro: Lumen Juris, 2017. p. 129).
 OLIVEIRA, José Roberto Pimenta. O planejamento do serviço público de saneamento básico na Lei nº 11.445/2007 e no Decreto nº 7.217/2010. In: OLIVEIRA, José Roberto Pimenta; DAL POZZO, Augusto Neves (Coordinators). Marco regulatório de saneamento básico no Brasil. Belo Horizonte: Court, 2011. p. 224.