As medidas provisórias da reforma do setor de saneamento básico e suas inconstitucionalidades

Abstract

In the year 2018, the end of the mandate of President Michel Temer, two attempts were made to reform the National Water Resources Policy Act, Law 9,433 / 1997, and the National Basic Sanitation Act, Law 11,445 / 2007, which already count respectively, with more than twenty and ten years of enforcement. Initially, Provisional Measure 844, of July 6, made substantial changes in both laws, but it lost its validity after the expiration of the term without its conversion into law by the National Congress. At the end of the year, Provisional Measure 868, of December 27, taking up the same content of the previous provisional measure and including new issues, surprised the Brazilian people. This investigation proposes an analysis of the constitutionality of these reform proposals, from the point of view of the federative pact established by the Constitution, as well as the limits imposed for the provisional measures in the light of the separation of powers. The methodology of the paper adopts a deductive approach, confronting the content of normative acts (minor premise) in light of the constitution and basic doctrine (premise major). It concludes that, while there may be some willingness of the federal Executive Branch in the reform of the sector, both provisional measures are contaminated with insurmountable unconstitutionalities. The Federal Government has other ways of inducing political and economic agents to comply with eventual federal requirements.