New Forms of Environmental Governance in São Paulo

State Reform, Rights Expansion, and the Pursuit of Accountability

Despite the democratic transition and constitutional reforms in Brazil, there remains a discrepancy between legally established rights and obligations and citizens’ enjoyment and the state’s observance of those rights and obligations (Holston, 2007; Houtzager and Acharya, 2011). Examining changes in the role and character of public bureaucracy can help illuminate some reasons for this gap. During the transition, the “bureaucratic-authoritarian” state apparatus slowly shifted its focus from elite concerns to “a whole series of social policies that contributed to decreasing somewhat the great concentration of income existing in the country” (Bresser, 2007: 27). State reforms converted a relatively effective but seemingly impermeable bureaucracy into a more “managerial” and ostensibly responsive site of public administration. These early changes, however, occurred concurrently with the deep and systemic fiscal crisis of the 1980s and a decade-long experiment with “the anti-strategy of economic development that constitutes conventional [economic] orthodoxy” (Bresser, 2007: 26). It was not until the weakening of neoliberal hegemony and the resurgence of the left after 2000 that the public bureaucracy again had the policy space and a strong mandate to improve the effectiveness of social policies (Trubek et al., 2013).

Even in this context of openness, policies were not always accompanied by mechanisms of accountability for ensuring compliance with newly adopted norms (Fox, 2007; Haglund and Aggarwal, 2011; O’Donnell, 1999). While managerialism may have improved the efficiency of the public bureaucracy, it did not necessarily make it responsive to citizens (Bresser, 1997). As a result, the use of courts as a mechanism of accountability for public agencies increased (Amorim, 2009; Hoffmann and Bentes, 2010; McAllister, 2008; Taylor, 2008). Law can serve several public policy functions, including creating a framework for crystallizing policy objectives, providing incentives and penalties for goal achievement, shaping institutions, and enforcing rules (Coutinho, 2013: 330). Yet there is still some question about the efficacy of courts in promoting social rights and environmental protection (Gauri and Brinks, 2010; Yamin and Gloppen, 2011), as well as how judges and prosecutors fit into the wider “ecology of agents” concerned with creating a more just and sustainable society (Evans, 2002: 222). For one thing, the historically conservative nature of the Brazilian judiciary makes it an improbable site for dramatic departures from the status quo (Vianna, 1997). At the same time and conversely, the judicialization of social policy has led some to worry about “judicial activism” and overreach. Moreover, adjudication among different legal principles can be messy: social rights in the realm of water and sanitation have at times conflicted both with competing state obligations and with ecological constraints (Conca, 2006). Finally, fragmentation among key actors and a disarticulation between and within institutions can undermine attempts to formulate coherent solutions to these complex problems (Proença, 2006).

Given the ambiguous role of law in shaping urban social policy and accountability, a closer look at São Paulo seems warranted. Urban transformations are not neutral but rather contested processes in which urban space is continually reconstructed “as a site, medium, and outcome of historically specific relations of social power” (Brenner, 2012: 11). Examining “the contradictions, crisis tendencies, and lines of potential or actual conflict” in São Paulo and in particular how these contradictions manifest themselves and are resolved in the legal realm can help us to illuminate “possibilities for more progressive, socially just, emancipatory, and sustainable” outcomes in this important metropolis (Brenner, 2012: 5).

A Brief History of Water and Sanitation in São Paulo

The story of water management in a city like São Paulo cannot help but be one of intrigue, miscalculation, and ongoing suspense. Though there is no shortage of rainfall in a relative sense, the approximately 20 million inhabitants of the metropolitan region place an enormous strain on the resources that exist. Beyond the 48.7 percent of total supply carried 73 kilometers via the Cantareira System of dams and canals (SABESP, 2009), sources within the city face ongoing pressure due to illegal settlement and waste. In 2006 only 77 percent of residential wastewater in São Paulo was collected, and less than 50 percent of this was treated (Whately and Diniz, 2009). The Guarapiranga watershed, which provides water to 3.8 million people, contains an estimated 800,000 illegal residences despite its protected status. Similarly, Billings Reservoir, which supplies water to an estimated 1.2 million people, received 400 tons of waste per day from illegal settlements in 2009 (Veja São Paulo, September 18, 2009). A full explanation of how this situation came to be is beyond the scope of this article (see Keck, 2002), but a brief overview will clarify why water, sanitation, and housing were increasingly the subject of lawsuits and legal battles.

As early as the mid-1970s, it was clear that something needed to be done to protect watersheds from rapidly growing settlements of workers flocking to São Paulo in search of employment. The watershed protection laws (Laws 898/75 and 1.172/76) were put forward as a solution (Jacobi, 2004). In creating an environmentally protected area, legislators hoped that settlement would cease. Instead, the price of protected land on the legal market dropped, leaving it vulnerable to illegal speculators, who correctly gambled that they would be able to sell the land to poor migrants with relative impunity. Without a new housing policy to accompany these laws, migrants had even more incentive to settle on watersheds, and without effective monitoring the regulations were largely ignored. Poor planning, insufficient attention by public administrators, and limited resources allocated to sanitation infrastructure meant that rivers became sewers.

Industry, likewise, had few controls on waste disposal, and there was little public pressure or awareness to justify, in the minds of policy makers, the huge commitment that would be required to put an adequate removal system in place. This kind of unruly urban expansion continued until an algae problem emerged at Guarapiranga in the late 1980s. Pollution allowed the algae to proliferate, so authorities treated it with chemicals, which in turn killed the fish. This was a wakeup call for both state agencies and residents, who became increasingly concerned about the conflict between urban growth and the health of water supplies (Keck, 2002). Since then, an array of actors, utilizing a variety of institutional, legal, and political mechanisms, has fought to improve socio-environmental conditions in São Paulo.

The Social Foundations of Environmental and Human Rights Protection

The worsening environmental situation in São Paulo arose concurrently with an emerging “socio-environmentalism” in Brazil and beyond that sought to bring sustainability into harmony with sustainable livelihoods and human rights (Hochstetler and Keck, 2007). The roots of this movement predated the democratic transition but created important “social foundations of accountability” (Fox, 2007: 12) from which later political struggles for urban justice and sustainability were launched. In São Paulo, networks of socio-environmental activists and their allies in the newly elected Workers’ Party and state agencies stepped up their efforts for change. Though in the early 1980s they “had been able to do little more than constrain the implementation of traditional water policy, . . . by the end of the decade, a constellation of committed [reformers] was in place” (Keck, 2002: 184) both inside and outside the state.

The Companhia Ambiental do Estado de São Paulo (originally the Centro Tecnologico de Saneamento Básico—CETESB) is the key state agency responsible for the control, inspection, monitoring, and licensing of environmentally sensitive activities, including clearing and building in preservation areas. Its mandate encompasses preserving water, air, and soil quality while remaining responsive to citizens and social issues. Prior to the constitutional reforms, institutions like CETESB had been the only real agents of enforcement, with instruments such as fines and the capacity to close down polluting businesses at their disposal. However, partly because of conflicting demands for development and environmental protection and partly because of austerity measures that reduced salaries, technical capacity, and ultimately morale, regulation faltered (McAllister, 2008).

Civil society actors stepped in to pressure state regulators to comply with their obligations. The Instituto Socioambiental (Socio-Environmental Institute—ISA)—part of the “Guarapiranga network” ⁴ — raised awareness and lobbied for watershed protection by collecting and publishing information on water quality, occupations, and institutional responsibility. This facilitated strategic mobilization for participatory watershed governance and inclusion of social movement networks in planning processes. However, the influence of nongovernmental organizations (NGOs) in basin committees was limited, in part because only a third of their members were from “civil society” (business, universities, and NGOs) and in part because of resource and capacity deficits. Several interviewees complained that plans had already been formulated by technocrats before the first meeting of the Upper Tietê River Basin Committee and that relations between the state and social groups were highly state-centric, even paternalistic. What had been envisioned as a promising realm for state-society cooperation at all stages became, in the words of one participant, “a space for technical experts and social groups to fight over resources for small, personal projects, not integrated water management” (Marussia Whately, former ISA coordinator of Programa Mananciais, interview, March 2012). Some committee participants I interviewed believed that bringing different municipalities and interests together averted conflicts that would otherwise have wound up in court, but others ultimately gave up on the committees, choosing instead to work on more fragmented, community-based projects.

The Foro Nacional de Reforma Urbana (National Urban Reform Movement—FNRU), established in the mid-1980s, was another key coalition of social movements, university departments, and professional associations. It combined the interests of the ISA with those of unions (jobs and housing) by utilizing a “rights-based approach” to urban policy (Holston, 2007). It focused not only on the environment but also on rarely broached topics such as the role of capital accumulation for the few in a city rife with poverty and homelessness (Cymbalista, 2008). This movement compelled some municipalities to implement policies to reduce inequality and create access to basic services, but early efforts were sporadic and lacked strong institutional support. With the passage of the City Statute (Law 10.257/01) in 2001 and the creation of the Ministry of Cities, guidelines to promote the policy goals stipulated in the constitution were finally codified, and some movement actors participated in policy planning. Even then, however, few mechanisms existed to punish violations (Maricato, 2010). An even more explicit urban justice policy—Minha Casa, Minha Vida (My House, My Life), which “set rules and regulations for guaranteeing the regularization of informal settlements by declaring them social settlements”—was implemented in 2009 (Saule Júnior and Uzzo, 2009). Yet despite some progress in infrastructure development, social rights in São Paulo and in many other Brazilian cities continued to go unrealized.

Civil society engagement with state entities in São Paulo was circumscribed in comparison with participatory mechanisms that have emerged elsewhere in Brazil. At the time of democratization, NGOs grew substantially and had a great deal of financial support for their struggles, and some of these still exist (e.g., Instituto Pólis, ISA). But the movement itself lost steam for a variety of reasons. Many environmental and other NGOs lacked strong grassroots bases and had to rely on funding from companies and ministries, thus limiting the time and resources they had available for activism (Pedro Jacobi, professor in the Environmental Sciences Graduate Program, PROCAM-USP, interview, April 2012). NGOs that had grown out of the democracy movement were left to their own devices (and finances) once “democracy promotion” was no longer on the agenda of aid organizations, and this contributed to their disarticulation. In order to cope in this new environment, some NGOs shied away from more radical agendas in favor of small-scale interventions. State agencies like CETESB supported NGOs engaging in noncontroversial activities such as providing site-specific data, monitoring risk situations, and carrying out projects to clean rivers or plant trees. Civil society organizations for the public interest, created in 1999 (Law 9.790/99), also provided services but were considered partners of the government. Being privately funded, one activist lamented, “they talked little of poverty” (Paula Santoro, interview, April 2012).

In sum, depoliticization and demobilization weakened potential bases of accountability that might have increased civil society influence over state policy (Fox, 2007). Into this lacuna, important actors have come wielding law to alter the environmental and social harms faced by marginalized populations and society at large.

“Constructing The Meaning of Rights”: New Legal Strategies and Mechanisms

While civil society actors were agitating for compliance with environmental and human rights standards, the Ministério Público (MP, similar to the attorney general’s office in the United States) was growing in importance as an agent investigating and prosecuting environmental, human rights, and consumer defense cases (McAllister, 2008). These public (“collective” or “diffuse”) cases were unique because they afforded prosecutors the power to act on public policy matters, even against other branches of government. The MP employed a variety of strategies to encourage compliance with environmental and human rights norms, including pre-judicial mechanisms such as enforcement visibility, publicity regarding violations, and informal warning systems. Prosecutors also had investigative powers via inquéritos civis (Law 7.347/85, Article 8), which compelled public and private entities to provide information, documents, technical data, and statements regarding alleged violations (McAllister, 2008). An even more formal accountability mechanism was the termo de ajuste de conduta (conduct adjustment agreement—TAC), which sought cooperative, negotiated settlements stipulating commitments to behavioral change on the part of violators (see McAllister, 2008).

Although the pre-judicial mechanisms and investigative powers of the MP were critical for pressuring public administrators to produce results, they were insufficient to promote the new “social state” envisioned by the 1988 Constitution (Bresser, 2007). Legal action became increasingly integral to compliance efforts. Prosecutors and plaintiffs gained access to judges through several potent instruments: the public civil suit (Law 7.347/85), the injunction (see McAllister, 2008), and the constitutionally established popular suit (ação popular), available to citizens claiming that state actions damaged the public or the environment. In decades past, judgments in water and sanitation cases had been rather circumscribed and individualized, but judges have recently become more open to policy-related cases.

A recent decision affirming that the separation of powers does not prevent judicial rulings against municipalities for failing to provide sanitation, for example, represented a major victory for those seeking to clean up the city’s waterways (TRF4, 2011). These trends are sometimes derided as “judicial activism” but are seen by others as a necessary check on administrative or legislative failure to fulfill constitutional responsibilities (Mello, 2008; Verissimo, 2006). The establishment of the special environmental chamber (câmara especial do meio ambiente [TJSP, 2005]) by the state appellate court, accompanied by the creation of a second chamber in 2012 (TJSP, 2012), represented another groundbreaking step toward environmental protection. For those witnessing the transformation, this was something very new: “The ‘Scent of Progress’ [in São Paulo] had historically been industry and agriculture and other destructive practices, not environmental protection or the ‘Scent of Nature’” (Judge Ruy Cavalheiro, interview, March 2012). Because cases heard by these chambers have little precedent, judges and prosecutors “are constructing the meaning of [collective and diffuse] rights here, in this court, together” (Daniel Fink, MP prosecutor, statement before the special environmental chamber, March 2012).

“Nobody Thinks Broadly or Strategically”: Opposing Viewpoints, Opposing Interests

Legal efforts to promote environmental protection and human rights in water and sanitation sectors were not without their contradictions, however. Achieving the deeper objective professed by many prosecutors, judges, and activist plaintiffs—to create a sustainable, inclusive city—would require attention to systemic marginalization, programmatic policy failures, and large-scale ecological processes. Given this, it is not a mystery why a city like São Paulo, a monument to industrial and commercial development and its inexorable dynamic of “creative destruction,” did not spontaneously become either sustainable or livable. As Claude Lévi-Strauss (1955: 119) once remarked, cities like São Paulo are “perpetually young, yet never healthy.” The various actors who might, together, address this wider project were individually “imperfect agents of livability” (Evans, 2002: 222) who did not always operate from shared conceptual or material grounds. In this section, I review some of the rifts in understanding and interest that have stymied prospects for livability in São Paulo.

The disruption of human and natural systems caused by rapid, disorganized industrialization-led growth is the topic of many cases that come before the environmental chamber. Yet state actors are not always enthusiastic about responding to their obligations in ways that put them at odds with powerful constituents, undermine economic growth, or alter institutions and social relationships required for capital accumulation (Offe, 1984). Despite the recent emphasis on sustainability and human rights in São Paulo, conflicts between these goals and traditional forms of development are often resolved in favor of those with greater economic power: “Those opposed to environmentalism are often from the economic side, which generally is linked to political power; the struggle is unequal” (Nelson Bugalho, quoted in Calmona, n.d.). For decades, municipal leaders have exchanged regularization of illegal settlements for political support (Cymbalista and Santoro, 2008). Even within the institutions designed to protect societal interests, there is resistance to actions against property owners and businesses because of the economic imperatives faced by any government, as well as a solid respect for property rights. As one environmental regulator reported, “Court cases can have a negative effect on [our work at CETESB] because when we give licenses and judges overturn them, this can harm the businesses and undermine the process.” Loss of regulatory independence vis-à-vis developmentalist influences in the 1990s led to “a pattern of ‘negotiated noncompliance,’ in which persistent violations of permit requirements were tolerated” (McAllister, 2008: 43).

From a strict enforcement point of view, this appears to be a compelling example of state capture, whether intended or not, but the evidence becomes more ambiguous when we consider how environmental regulators view their responsibility for weighing social outcomes: “We try never to forget the social, economic, and cultural dimensions of [environmental] decisions. When there is an industry, we think about jobs, so we only close down production when other attempts to resolve environmental problems are exhausted” (Nelson Bugalho, director vice president, CETESB, interview, April 2012). What is notable here is not so much that state entities might act in the interests of industry against broader societal interests, whether behind the scenes or overtly, citing “economic necessity”; both tendencies have a long and ignoble history. Rather, it is that policies are not always commensurate and the legal way forward, even for those acting in the public interest, is not always clear. The MP and regulators may not agree on how the law should be understood or which interests (of workers or the environment) should be prioritized. Consequently, CETESB lawyers have at times found themselves at odds with prosecutors over charges of environmental negligence. Viewed from the perspective of human rights (in this case, the right to employment), a seemingly straightforward case of state capture becomes part of the complex, murky realm of contradictory policy goals.

Mobilization is one countervailing factor that can force states to consider broader societal interests (Fox, 2007; Keck and Sikkink, 1998). However, historical rifts in ideology and interests among classes in São Paulo weakened possibilities for coordinated action around housing, water, and sanitation. Age-old class relations, for example, obscured important structural realities: “People in rich communities need workers to maintain their lives, but there’s no intelligent strategy for housing [them]. Neither the state nor the rich take responsibility” (Maria Luiza Granziera, environmental law professor, UNISANTOS, interview, March 2012). There is also a lack of understanding among the middle classes of their own contributions to water pollution from household waste. Likewise with illegal settlement: “It’s not poverty polluting water. [Middle-class people] don’t want poor people living near them, and poor people don’t want to move [from illegal settlements]. Nobody thinks broadly or strategically. People don’t grasp the real situation” (Paula Santoro, architect, researcher, and housing rights activist, interview, April 2012). Even “right to the city” movements can be partially blinded—for example, by narrow efforts to secure neighborhood-specific rights such as housing, open space, water, and sanitation—to the broader socioeconomic and political context that thwarts the development of a robustly democratic and inclusive city (Mayer, 2012).

“Reality is Rebellious”: Complex Problem Solving Through Law

A rise in the use of legal strategies meant that judges soon found themselves adjudicating among policies that alternatively supported and countered the “accumulationist bias” of the state (Evans, 2002). Though all three types of rights mentioned above—environmental rights (which were strong and fairly clear), property rights and economic development, and housing rights for poor, vulnerable populations—were eligible for protection under the law, they were not easily reconcilable in practice. One judge summed up the conflict as follows: “Though the environment is primary, it is not clear that rulings can go this way. Reality is rebellious. If the law was strictly followed in terms of illegal occupations or industry, we’d have major dislocation (perhaps 2–3 million poor people) and economic destruction. Our environmental law is very rigorous, which may be why it is so hard to enforce.” Prosecutors, similarly, were faced with internal legal contradictions: “The law says trees and not people should be in the Guarapiranga/Billings watersheds, but you can’t just move them. It’s not that easy. Housing rights conflict with environmental protection. It is frustrating because law should be law; . . . but it is so complex.”

Even if the courts were successful in vacating illegally occupied land, this would not necessarily mean that the environment would be protected: “People may leave, but to where? Perhaps to an area that is even more vulnerable. There is still no good plan for housing in São Paulo, in part because it is very difficult to know what will be effective. Some conflicts have become impossible to solve through law” (Ronaldo Macedo, MP prosecutor, interview, March 2012).

As these passages make clear, São Paulo courts deal with some of the thorniest environmental human rights issues that exist in Brazil today, often without a clear path toward resolution. One judge from the environmental chamber said, “A lot of cases I’ve adjudicated are about something totally new—uncharted territory. I’ve had to start from scratch with an investigation because the jurisprudence didn’t exist.”

But cases are being adjudicated. The question then arises: whose interests are being served? Are environmental protections, social rights, or something else winning out? A review of actual court decisions is beyond the scope of this paper, but there is some evidence regarding the nature of emerging jurisprudence. As Ricardo Araújo, a water expert with extensive experience in illegal settlements, explained, “1980–1990 was a decade of social rights, but the 2000s were about rules. Informality was seen as unacceptable. The environmental question is more highly valued in the judiciary. The ‘rules instead of rights’ issue was mitigated somewhat when the PT [Workers’ Party] was in power, but not really. Tolerance for the social question in courts is low.”

Regardless of their personal convictions regarding illegal settlement, judges, advocates, and activists agree that when the environment and housing rights are in conflict, the environment is likely to win in court. Even within the MP, “the environment is so well protected that other human rights are being suffocated” (Claudia Maria Beré, MP human rights prosecutor, interview, April 2012). There is a class dimension to this, however: “In some cases, people can stay [on environmentally sensitive land] if they pay for the impact to whoever was harmed, as long as the harm was limited and not ongoing. They can, for example, plant trees. This is a way that judges may help fix the problem and minimize conflict” (Judge Ricardo Cintra Torres de Carvalho, interview, March 2012). Of course, the poor are not in a position to compensate for environmental damage in this way, and the state has been accused by social movements of using the environmental protection discourse to crack down on and repress slum dwellers.

At the same time, pro-poor policy can lead to unsustainable practices when employment and housing are not linked to the environment. Countless beautiful landscapes in São Paulo have been scarred by illegal settlement, often in environmentally sensitive areas. In locations with extensive investments such as sanitation infrastructure, prosecutors do not usually win cases asking for settlement removal (Jose Carlos de Freitas, MP prosecutor, interview, April 2012). Even when judges do rule that residents must be resettled, the order may not be fulfilled: “There are 1,500,000 people waiting for housing from the government in São Paulo. Moving people only when they have housing would require the state to resettle tens of thousands of people a year. If we apply the law rigorously, it becomes impossible” (Judge Ricardo Cintra Torres de Carvalho, interview, March 2012).

“We Don’t have a Clear, Integrated View”: Fragmentation within and among Agencies

Institutional disjunctures can compound the policy contradictions emerging from competing interests. For example, within the MP there is an environmental section, a section on housing and urbanism, and a section for human rights protection (e.g., children, the elderly, and health-related rights). Though it makes sense that an institution charged with protecting “collective” and “diffuse” interests would have areas of specialization, in practice the orientations of different prosecutors can lead in opposing directions, in particular between housing and the environment. As the housing and urbanism prosecutor Jose Carlos de Freitas put it, “We work with transformed environments. When we come across conflicts between human rights and the environment, we are most concerned with human rights. We can’t leave the natural environment unprotected, of course, but our main preoccupation in this unit is mostly social.” Environmental prosecutors down the hall presented an essentially inverse view. Prosecutors like Luis Roberto Proença have long been aware of this problem but have found resolution elusive:

About 10 years ago, there was a meeting where the mayor asked how the MP felt about illegal settlement. The housing prosecutor spoke up quickly and said, “We think [settlers] should stay there.” The environmental prosecutors stayed quiet, even though they had the opposite opinion. After the meeting, they told the boss that it would be a good idea to talk about this and try to be more coordinated. Ten years later, nothing had happened.

This intrainstitutional disarticulation can lead to absurd outcomes, as the prosecutor and legal scholar Ronaldo Porto Macedo Júnior recounted:

Fabio Feldmann, the state environmental secretary, reported that the MP sued him because he did not protect some areas by forcing community displacement. But the children’s rights branch of the MP sued him because there was no school there, and another branch sued him because there was no hospital. He said, “If I start building hospitals and schools, of course the illegal occupation will increase.” . . . So we don’t have, even within . . . the MP, a clear, integrated view of what is to be done.

As this anecdote suggests, relations among entities that should work together on integrated planning can be strained by the adversarial nature of litigation. State functionaries simply following their mandate to provide water and sanitation have found themselves prosecuted for authorizing connections in illegal settlements. For water experts like Araújo, “This makes it hard for me to want to create [water] connections, but there are times when I go ahead and do it anyway because people live there, and human health is at stake.”

Institutional boundary conflict is also evident as judges become involved in policy disputes over infrastructure. The state water company Saneamento Básico do Estado do São Paulo (SABESP) has argued that there is no legal obligation to provide a network of sanitation everywhere. But as Judge Ricardo Cintra Torres de Carvalho (interview, March 2012) explained, “If the MP says, ‘Oh, yes, there is,’ judges are stuck. They have to go with the law, which says there is an obligation, but SABESP has a point. It doesn’t make sense to force them to construct in one area, right now, if there is already a broader plan to construct a whole infrastructure.” SABESP has faced huge fines for not following court orders, which, as Araújo reports, can complicate institutional planning: “Litigation is damaging because it means taking funds away from one thing to pay a fine or take care of other things. . . . We do a lot of things via TACs, which can be good, but it can also divert resources to issues that weren’t considered institutional priorities.” Governments, of course, are notorious for pleading “lack of sufficient resources” to meet rights- and development-related obligations even when resources are available, but in legal processes even discussions of cost are rarely explicit.

Prosecutors and judges respond to criticisms of their interventions with an acknowledgment that there should be better mechanisms of coordination and planning but insist that, without courts, state agencies would not act in a timely manner. The MP does at times seek coordinated solutions such as the TACs, and it is an important agent of accountability. But neither the MP nor the courts were designed to be, nor do they generally act as, agents for improved interinstitutional lines of communication. Here we begin to see the importance of viewing actors within an “ecology,” as interdependent entities “whose prospects and capabilities cannot be assessed without taking into account the aims, strategies, and capabilities of the rest of the actors with whom they share a common arena” (Evans, 2002: 23). We have one set of actors highly qualified for interpreting the law (judges and lawyers) and one set of entities highly qualified for ecological and policy assessment (CETESB and SABESP), yet alone they possess only a portion of the expertise needed to solve contentious problems where human and ecological needs intersect. Moreover, they have few institutionalized mechanisms for coordination either with each other or with civil society.

“The Ministry has the Monopoly”: The Ambiguous Legal Empowerment of Citizens

If the articulation across institutions and coordinated channeling of resources needed to promote urban livability and sustainability were lacking in São Paulo, so was establishing and maintaining the horizontal integration among popular movements that would allow them to coordinate shared agendas and strengthen their voice (Fox, 2007). Activists sometimes resorted to taking on legal issues individually, using their own resources, but this kind of action, predictably, was rare and had limited effect. Virgílio Alcides de Farias, an environmental lawyer and former leader of the Movimento em Defesa da Vida (Movement in Defense of Life), was something of an exception that proved the rule. Alcides started his work as a gadfly by filing suit against the state water company in 1973. He later launched a civil action against CETESB and won (“even though they employed 19 lawyers against me!”). Despite his wins, however, Alcides acknowledged the difficulty facing ordinary citizens attempting to use the courts to uphold environmental or human rights law:

The state has a great deal of power vis-à-vis citizens. The Ação Popular [popular suit] is designed to balance this out, but citizens fear confrontations with the state. . . . They do not believe that judges are going to take the side of a citizen over the side of politicians or other organs of the state. . . . My mission as an environmentalist is to change popular understandings and to help citizens use the courts for the public interest.

Citizens and NGOs have another disincentive to starting legal proceedings as well: it may be more attractive to let the MP do the work. The MP is obliged to investigate cases that it receives. NGOs are only required to file a complaint to activate this mechanism (and the MP’s far greater resources). Further, if the case loses, the MP does not pay legal fees, whereas NGOs do. Finally, “an NGO cannot start a formal investigation. Of course, Greenpeace can do its own independent investigation, but it doesn’t have the power to break confidentiality or request technical reports or information from businesses. The Ministry has the monopoly” (Ronaldo Macedo, MP prosecutor, interview, March 2012). Most claims for environmental or human rights in São Paulo are indeed handled by the MP, a reality that raises the issue of whether it is blocking “vertical integration of pro-accountability actors” that can “bolster civil society influence” over public policy (Fox, 2007: 343).

However, some NGOs, such as Defenda São Paulo, do bring cases, often involving urban development. The housing movement is one sector of civil society that engages actively with the MP, and its persistence has spurred wider conversations about housing. Activists who face recalcitrant governments view legal action as a valuable lever for accountability. This is a crucial point: the MP provides a judicial pathway to rights realization regardless of the resources of the actors bringing suit and thus can also act as a pathway to empowerment (Fox, 2007). Although the absorption of activist causes into the case files of the MP might be seen as disempowering, it is apparent that social movement agendas are increasingly incorporated into government policy as a result of MP actions. In that sense, the MP is, as the University of São Paulo professor Pedro Jacobi characterized it, an “institutional defense for citizenship, a facilitator for civil society.”

“A Paradigm is being Broken”: Emerging Possibilities for Justice and Sustainability

The issues identified above—class- and interest-based divisions in understanding problems and visualizing solutions, the complexity of urban governance, contradictory legal principles, and institutional and social fragmentation—have underscored the necessity of and intensified calls for new approaches to urban sustainability in São Paulo. These include greater social awareness of environmental and social issues (Jacobi, Granja, and Franco, 2006), better coordination and creation of synergies among institutions and policies (Evans, 2002; Fox, 2007), and greater accountability and commitment to comprehensive strategies that truly protect all citizens (Bresser, 1997; Fox, 2007; Haglund and Aggarwal, 2011). Despite their challenges and limitations, the MP and the courts have played an important role in facilitating all of these transformative processes (Coutinho, 2013).

Environmental awareness continues to expand in São Paulo, and there is evidence that at least some of this growth can be attributed to increasing judicialization. The mere existence of two special environmental chambers indicates a substantial change in attitude regarding the relative importance of environmental protection. With regard to illegal settlement, prosecutors report seeing a mentality change because of removals: “People are afraid . . . to invest in those areas and risk losing their investment.” The actions of the chambers serve both to push for resolution of issues and to provoke discussion over social policy. As one judge observed, “When something is adjudicated, it often becomes part of the public discourse, and this serves to bring human rights out into the open for resolution.”

Both within and beyond the courts, coordinated approaches to public policy are also emerging, despite formidable challenges. Early evidence suggests interesting possibilities for the environmental chambers as sites for holistic confrontation of urban challenges, and judges seem prepared to rise to the occasion. Judge Ruy Cavalheiro conveyed the dedication of many chamber judges in saying, “Systemic problems are definitely part of the jurisprudence. My responsibility is to society.” Asked “Does it burden the court?” he responded, “I need to do my job. It’s not too much.” Within the MP, there are special investigation teams that theoretically could help with coordination among prosecutors and reduce intrainstitutional conflict, though their use across cases and prosecutors has been limited. These mechanisms, if extended, could also bring together actors across institutions and foster collaboration toward shared goals.

There has also been a notable evolution in cooperation between the MP and other agencies such as CETESB and SABESP. Multi-institutional regularization projects have begun to unfold in a few places, often following judicial intervention. As Araújo explained, “In the Watershed Program, we didn’t move the people. They were allowed to stay. They had a life, organization, and a neighborhood. It’s a terrible thing to move people who already have a life somewhere. Regularization helps protect the environment precisely by having good infrastructure to limit human impact.” Though, from a strictly environmental point of view, watersheds have not been returned to their original condition, this remedy took seriously the multidimensional nature of “livable cities” (Evans, 2002), including the importance of community and livelihoods, an essential building block for inclusive, sustainable urban policies.

Transforming São Paulo into a place where the aspirations of activists, advocates, and citizens regarding environmental protection and social rights are met requires that accountability and a commitment to protecting all of society be strengthened. Despite the shortcomings discussed above, courts and the threat of litigation still offer the most compelling accountability mechanisms available. After 25 years of postmilitary rule, a residue of authoritarianism and impunity remains in attitudes and some state functions, but the work of the MP and the courts has begun to change the conversation about what is acceptable and what is required to meet environmental and human rights goals. Court cases have put politicians on alert: “They can’t do whatever they want anymore because they know they will be charged with a crime if they do” (Claudia Maria Beré, MP human rights prosecutor, interview, April 2012). Precedent is being set for corporations to take responsibility for their pollution (Judge Ruy Cavalheiro, interview, March 2012), and politicians and scammers who encourage invasion of protected land are being caught and made to pay fines to restore damaged areas.

As courts rein in the powerful, citizens like Alcides become more confident in the rule of law:

During the military dictatorship, people could not challenge public power. There are remnants of the dictatorial attitude that prevail still today. For example, CETESB responded to my case against it with a paragraph arguing that its documents were fé publica [faith in what the public institutions say] and asked the judge just to trust its documents. The judge rejected this argument. . . . This process slowly begins to dismantle the idea that the state cannot be questioned. A paradigm is being broken so that people have to follow the law. It is breaking a tradition of impunity.

At the same time, progress on environmental issues sits uneasily alongside continued deficits in basic human rights. Though court cases and adjudication have had some impact in forcing the state to deal more effectively with housing and water rights, in particular where environmental questions are at stake, the gaps between human needs and reality are stark. As discussed above, there is some evidence that efforts to protect the environment have forced social rights for poor people onto the back burner, which ironically puts the environment at even more risk. Comprehensive efforts to promote both environmental and human rights together would entail taking seriously the obstacles that pro-reform, pro-accountability state actors and social movements face when attempting to find informed, comprehensive solutions to wicked urban challenges.