Exploração de potenciais energéticos em novas fronteiras por meio do fracking : análise jurídica do modelo decisório brasileiro e proposta de adaptação ao princípio da precaução e da participação pública

Abstract

This research carries out a legal analysis of the Brazilian decision-making model for new exploitation horizons for energy resources in unconventional reserves. This analysis proposes the adaptation of this decision-making framework to the precautionary principle. The study takes as an illustrative example the inclusion by the National Petroleum, Natural Gas and Biofuels Agency of unconventional exploration blocks in the 12th Licitation Round in 2013. The methodology used is hypothetical-inductive and uses methodological procedures of an analytical and explanatory nature. The research problem is broken down into two questions. The first is about what gaps/limitations can be observed in the Brazilian decision-making model when it comes to approving fracking operations and similar ventures - in other words, operations involving new technologies with high social and environmental risks. The second is about how to rethink the governance of these projects in Brazil, taking into account the need to balance the demand for energy generation, the protection of sensitive environmental areas and the rights of indigenous traditional use territories. The process in question is complex both from a technical perspective and from an institutional point of view, given the negotiations and procedures involving the three spheres of power - legislative, executive and judicial - as well as private economic interests and the rights and interests of civil society. The discussions on the implementation of this type of project address the high environmental risk and theuncertainties that are still subject to environmental and strategic study and evaluation. The social mobilization seen in Brazil to challenge the lack of environmental and social security generated by the ANP illustrates the importance of the active participation of interested groups, especially indigenous communities threatened by the activity. The social mobilization experienced in Brazil to challenge the lack of environmental and social security generated by the ANP illustrates the importance of the active participation of interested groups, especially indigenous communities threatened by the activity. This mobilization triggered the Judiciary, which conditioned the activity on the elaboration of environmental and strategic studies and evaluations. The case illustrates how damaging public management can be when dealing with exploratory activities of energy potential, with high environmental and social risk, without the agreement of those at risk. In conclusion, there is a need to reformulate the Brazilian decisionmaking model for the feasibility of high-risk projects aimed at new energy potential. The institutional framework needs to evolve, especially in two areas: adapting to the precautionary principle, with procedures more suited to mitigating serious or irreversible environmental risks; and expanding access to information, transparency and strengthening public participation. [resumo fornecido pelo autor]