WATER AS A COMMON USE ENVIRONMENTAL GOOD BEFORE THE NEW LEGAL FRAMEWORK FOR BASIC SANITATION IN BRAZIL: CHALLENGES AND CONTROVERSIES

• Autor(a) principal: Pes, João Hélio Ferreira
• Data de Publicação: 2023
• Outros Autores: Zago, Patrícia Bortoluzzi
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Estudos Jurídicos da Unesp (Online)
• Texto Completo: https://periodicos.franca.unesp.br/index.php/estudosjuridicosunesp/article/view/3680
• topic: Água. Bem Comum. Lei 14.026/2020. Novo Marco Legal do Saneamento Básico.; Water. Common Good. Law 14.026/2020. New Legal Framework for Basic Sanitation.

The Law 14.026/2020 updated the Legal Framework for Basic Sanitation in Brazil, inaugurating a scenario of significant changes in the regulation, provision and management of services. In a unique way, it established a series of easiness to enable concessions to the private sector, reducing the basic sanitation sector to an economic-financial equation.  In this context, through bibliography research with legal, normative and doctrinaire bases, the present article sought to verify the challenges and controversies brought with the new legislation, considering water as a common asset of common use by the people. For this, at first, water was identified as an environmental good and of common use, the historical-normative perspective of national sanitation was investigated and, finally, the challenges and controversies presented by the New Legal Framework of Basic Sanitation analyzed. From this scenario, it was found that the new legislation not only finds deep unconstitutionalities, but opens wide its privatist aspects, falling far short of what is recommended about access to water and sanitation as fundamental rights. Legal articles hamper municipal autonomy regarding the provision, as well as condition federal transfers to a regionalized provision model that has little dialogue with local realities, also suppressing the institute of cross-subsidy, essential for the economic-social equalization of the service, covering up a scenario of deep instabilities to the attainment of the right to access basic sanitation and drinking water, in a true mismatch with the constitutional definition of environmental asset for common use by the people.