Regulatory Governance and Institutions: the Brazilian Ministério PúblicoDaniel Lima Ribeiro

BrazilDemocracy 26 states and Capital Separation of Powers 30 branches of MP 13508 members

State of Rio de Janeiropopulation 16M 903 members MP

Redemocratization begins

1979 1981National Environmental Policy Act

1985Public Civil Action Act

1988Constitution

constitutional transformation: rights and principles revolutions

transformation of the MP

prosecutorsEurope 14th century

The 80s’ transformations:

institutionalMP becomes independent from the Executive and can file civil lawsuits to protect constitutional “rights" (even against the Executive)

The 80s’ transformations (cont’d):

legal / constitutionalsocial and collective rights in the Constitution (welfare, health, safety, environment, etc…): if it is not a right, it is a principle (ex.: “free enterprise”).

# of words in the Constitution

81,000

4,543

US Constitution Brazilian Constitution

The 80s’ transformations (cont’d):

political“If it’s in the constitution, it is an enforceable norm”: rise of judicial activism (“neo-constitutionalism”)

Constitutional position of Latin American MPs

Executive

Judicial

Autonomous

0 3 6 9 12

Latin American MPs with powers to file civil suit

40%

60%

Only criminal Also civil

MP in other Latin American countries:

0

200

400

600

800

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

# Google hits: ”New Constitutionalism" in Spanish

Brazil in the Ranking of Corruption Perception Index

0

20

40

60

80

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

source: Transparency International

but… how to enforce a constitutional "right" or a "principle"?

what exactly is a right "to a clean environment", "to safety”?

solution (?): principles (proportionality, polluter-pays, precautionary)

The proportionality principle:

step #1 minimum rationality

step #2 cost-effectiveness (LRM)

step #3 tradeoff analysis

based on… judicial intuition!

Without a rulemaking record or legislative history?No APA neither RIA equivalent in Brazil

# of hits “proportionality principle” on Google Brazil

0

2750

5500

8250

11000

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Number of opinions by the Brazilian Supreme Court applying the proportionality principle

0

22.5

45

67.5

90

country prop_tot_90 92 94 96 98 2000 2002 2004 2006 2008 2010 2012

Examples: 1. the new Forest Code 2. Burning waste from sugar cane plantations

Regulatory Systems: Comparing the US and Brazil

US Brazil

legal procedure / analytics APA + RIA "Principles"

Rulemaking power

agencies and independent agencies

President, agencies (and commissions)

Regulatory oversight

courts (APA), Executive (OIRA/RIA) courts

Actors stakeholders with standing + automatic (rules triggering RIA)

stakeholders with standing + MP

regulations judicial reviewimpact assessment?

could RIA fill the gap? MP

instead of "principles"

Regulatory Systems: Comparing the US and Brazil

US Brazil

legal procedure / analytics APA + RIA RIA

Rulemaking power

agencies and independent agencies

President, agencies (and commissions)

Regulatory oversight

courts (APA), Executive (OIRA/RIA) courts + Executive (RIA)

Actors stakeholders with standing + automatic (rules triggering RIA)

stakeholders with standing + MP

Average rules/year in Brazil

0

100

200

300

400

President Congress Agencies (11) Environment

Source: estimated average based on the list of rules for 2012 and 2013 — websites of Congress, ANATEL, AVISA, ANTT, ANEEL, and CONAMA

Signs of change:

OECD and RIAInfluenced by OECD, Brazil is taking initial steps to implement a pilot RIA program (… not applicable to Presidential decrees)

Improving Latin American regulatory governance:

“Neo-constitutionalism”, rights- and principle-based approaches are not conducive to good governance, neither to good quality regulation.

Evidence-based policy making and regulatory impact assessment could provide the missing structure to proportionality and other standards of regulatory oversight.

Improving Latin American regulatory governance (cont’d):

New institutional designs required when the President has significant regulatory powers (e.g., MP?)

Thank you!

Daniel Lima Ribeiro, LL.MSJD Candidate

Duke University School of Law daniel.ribeiro@lawnet.duke.edu