The law also includes measures to universalize basic sanitation by 2033. Due to a lack of institutional capacity, the minister stressed, it is not for the judiciary to judge whether the objectives are accurate or imprecise, practical or inconvenient. The dissenting votes were partially defeated by ministers Edson Fachin, Rosa Weber and Ricardo Lewandowski. Fachin, who opened the dissent, voted to declare Articles 7, 9 and 13 of the new legal framework for basic sanitation unconstitutional. According to Fachin, the devices violate the Federal Pact by excluding the possibility granted by the Constitution to use the program contract as an instrument for the associated management of public sanitation by municipalities. Gilmar stated that the Union has competence to establish guidelines for basic sanitation (Article 21, XX of the Constitution). Therefore, it is not contrary to the Magna Charter for the National Water Authority (ANA) to set the compliance requirements expected of municipalities and states in order to receive transfers from the Union, the minister stressed. After all, these transfers are voluntary transfers, not mandatory transfers. And the Union could condition them even before the new legal framework for sanitation, Gilmar said. Issues related to basic sanitation are of local interest and are the responsibility of municipalities.
However, this does not prevent joint and integrated action by all units of the Federation, since the effectiveness of such a service is in the interest of the States and the Union, since it contributes to the maintenance of human and environmental health and the promotion of sustainable economic development. In ADI 6.882, the Brazilian Association of Public Sewerage Companies (Aesbe) argued that the law ended the shared management of sanitation by a public consortium or cooperation agreement and imposed the concession as the only model for service transfer. This imposition violates the powers guaranteed to municipalities by Article 30 of the Federal Constitution. „With respect to the autonomy of service licensees, this issue is closely linked to the notion of `local interest`. In the stake, states and municipalities should make joint decisions on remediation projects. This concept has also been further developed in a recent decision in ADI 6.573 and 6.911 and ADPF 863. Therefore, there is already a solution for the groupings of municipalities (and states) outlined by the Supreme Court in previous decisions, which in this regard is very difficult to qualify the law as unconstitutional,” he explained, noting that for the other three issues, there is still not a single jurisprudence pacified by the colonel. The Uerj professor also said that it is not possible to assume that by prioritizing the private provision of sanitation services, the new law will improve conditions for people who currently do not have access to the service. Rubens Naves also stressed that the constitutionality of the new consensual model of the reference block was recognized, as well as the legally required model for the creation of a regional universal service. In another case, PT, PSol, PCdoB and PSB argued that the law, which amended the legal framework for sanitation, could directly interfere with the obligation of the public administration to provide access to essential goods for all in accordance with the principle of universality of public services. At the time, Fux noted that the legal requirement for states to introduce standards for the mandatory integration of metropolitan areas to plan and deliver basic sanitation services did not violate municipal autonomy. According to him, the common interest justifies the creation of micro and metropolises for the transfer of competences to the State.
Alexandre Aragão, Professor of Administrative Law at the State University of Rio de Janeiro, said that not only the new legal framework for basic sanitation, but especially the decrees regulating the new law, have paid little attention to the legal security of public sanitation companies, which, like any company, also enjoy constitutional protection. The case was reported by the President of the Supreme Council, Luiz Fux, who spoke in favour of the validity of the legal framework. The rapporteur accompanied Ministers Nunes Marques, Alexandre de Moraes, Gilmar Mendes, Luis Roberto Barroso, Cármen Lúcia and Dias Toffoli. Ministers Edson Fachin, Rosa Weber and Ricardo Lewandowski voted to overturn the law. „We need only look at the examples we have had across the country for decades of concessions celebrated with private sanitation companies that are far from successful universalization,” he said. The standard, according to the subtitles, also respects the federal pact by unilaterally focusing on the Union`s regulatory powers exercised by Brazilian municipalities according to the Supreme Court`s interpretation of basic sanitation. Barroso said the standard aims to increase the effectiveness of primary sanitation by allowing for greater private sector involvement in the region. According to him, the state does not have the means to provide a quality service to the entire population, and it is necessary to open the market to private companies. According to the Minister, the standard establishes several constitutionally compatible legal requirements, such as (i) the scope of minimum indices; (ii) the appropriate measure for the maintenance of undertakings; (iii) compliance with benchmark standards to regulate the provision of public sanitation services; (iv) Provide updated updates, including but not limited to. The association also claims that the law would transform sanitation into a trading post that excludes poor and marginalized populations.
Finally, the Brazilian Association of Public Sanitation Companies stated before the Supreme Court that by terminating program contracts, the new framework puts an end to the shared management of basic sanitation by a public consortium or cooperation agreement and imposes the concession as the only model of service delegation. In this sense, he welcomed the adoption of National Law 17.383/2021, which established four regional basic service units in São Paulo: Southeast, Center, East and North.