Environmental Assessment from an Environmental Justice Perspective: Analysing the Impacts of Major Urban Projects in Brazil
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University College London Environmental Assessment from an Environmental Justice Perspective: Analysing the Impacts of Major Urban Projects in Brazil Larissa Verri Boratti A thesis submitted to the Faculty of Laws of University College London for the degree of Doctor of Philosophy London, September 2016 Declaration I, Larissa Verri Boratti, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. ii" " Abstract Major urban projects associated with sporting mega-events have set the tone for the urban agenda of local governments in Brazil since the country was announced as the host of FIFA’s Football World Cup 2014 and the Olympics 2016. Development consent for these projects is at the core of rising urban-environmental conflicts over development goals and the uneven distribution of costs and benefits of urbanization. Environmental assessment (EA) operating within this political and developmental agenda plays a central role. EA governs the gathering of information, predicting impacts, defining and calculating mitigating and compensatory measures and engaging publics in decision-making, and in carrying out each of these aspects it may produce or reinforce distributional effects. In light of this, this thesis explores the extent to which the regulatory regime and practice of project-level EA can assist in securing environmental justice, particularly when operating within the planning control process for major urban projects in specific and local socio-political contexts. The thesis offers insights into both theory (Part I) and practice (Part II) of EA in terms of the degree to which it is able to incorporate the different dimensions of environmental justice. Part I focuses on developing a theoretically-informed framework of project-level EA in the context of urban-environmental decision- making by integrating social justice, environmental justice and urban-spatial justice as key elements of law and policy in the consent regime for major urban projects. In Part II, this is explored empirically by employing socio-legal methodology (comprised of qualitative research based on case study analysis) in the examination of Brazil’s EA regime. The cases selected involve two major urban developments (the redevelopment and expansion of an avenue as part of the improvement of key transport links and the construction of a football arena, supported by the building of real estate) in one specific city in Brazil (Porto Alegre). Both developments took place in the context of preparations for hosting the World Cup. The empirical research comprised gathering and analysing qualitative data on the development consent and environmental licensing procedures documentation, in particular the content of environmental impact reports. iii" " Drawing on empirical and qualitative research methods used to compile the case studies, the key conclusion is that EA offers a central and critical stage for voicing urban-environmental conflicts: how the benefits and burdens of a development endeavour – economic, social, environmental, and cultural – are unevenly shared among different population groups in the cities. I argue that if EA, operating within development consent for urban development, is to incorporate urban-environmental justice concerns, distributional aspects, land rights, participation and just distribution of benefits and burdens of urbanization have to be taken into consideration. The case studies indicate that problems arise in this regard when the practice of EA fails to take such information into account, or when the EA process is embedded in the use of development consent arrangements in order to ensure predictability for developers and speed up decision-making, even though this is to the detriment of a thorough impact assessment and consistent public participation. Specific issues highlighted by examining the case study developments include the partial nature of participation requirements and the timing upon the calculation of mitigation and compensatory measures. In summary, the EA procedures researched show up that although social- economic and environmental impacts were capable of forming part of the process, these issues were not well studied in terms of how the impacts are felt differently amongst particular groups, particularly those most vulnerable to socio-environmental impacts. iv" " Acknowledgements This research is funded by CAPES Foundation, Ministry of Education of Brazil, through the awarding of a full doctoral research grant, without which I would not be able to overcome the financial burden of pursuing the PhD abroad. I am extremely thankful for the opportunity and trust. I am also grateful to the UCL Laws research community, a truly inspirational and instigating academic environment from which I have greatly benefited. I would like to thank my PhD colleagues for their generosity and friendship, and UCL Law’s administrative and research staff for brilliant academic and logistical support throughout these years, as well as for ensuring supplementary funding (research travel grants and support to student-led events). Most specially, I will be forever indebted to my supportive and brilliant supervisor, Professor Jane Holder, who believed in my capacity to improve and offered invaluable guidance and inspiration in this journey. I would also like to thank friends and colleagues that I met in the pursuing of other research endeavours in London and that also contributed to my academic achievements. These include the founding members of CLOSER – Challenges of Multidiciplinarity in Socio-Environmental Research (Carolina, Flávia, Giovanna, Grace, Rafael and Tiago); and my fellow editors for the extraordinary team effort in bringing together a book on Latin America Law and Politics (by Palgrave). Finally, I would like to thank my family for their understanding, patience and encouragement: my dad Ivo, my mom Rejane and my sister Juliana. Marcelo, who was close all the time, has been the one though sharing the daily burden, therefore having his special share in the eventual successful completion of this PhD. To my other two families, the Pedroso Ilarraz (Márcia, Marilde, Gilberto) and Ilarraz Law Firm team (Bruno, Raquel and Chaianne), my gratitude for the crucial emotional and logistical support received. v" " Contents List of Tables xi List of Acronyms xii Table of Cases xiv Table of Legislation xv PART 1 CHAPTER 1 Environmental Assessment, Environmental Justice and Urban Decision-Making in Focus 1 1.1 Introduction 1 1.2 Research Question, Purpose and Scope 3 1.3 Outline of the Thesis 6 1.4 Methodology 9 1.5 Providing Context: The Geographies and Legal-Institutional Set-up of the Subject-Matter 13 1.5.1 The state of urban-environmental Brazil 14 1.5.2 EA’s policy relevance within development consent for major projects in Brazil: why the urban locus 18 CHAPTER 2 From Political Rhetoric to Legal Notion: Tracing Law and Policy Responsiveness to Environmental Justice Claims 24 2.1 Introduction 24 2.2. Tracing Law and Policy Responsiveness to Environmental Justice 27 2.2.1 Environmental justice discourse in the US: from grassroots to mainstream policy 27 2.2.2 Environmental justice discourse in the UK: merging with sustainability rhetoric and emphasizing procedural justice 32 vi" " 2.3 The Brazilian Environmental Justice Framework: ‘Environmentalization of Social Struggles’ 40 2.3.1 Accommodating environmental activism and social struggles: contexts and circumstances (from the 1970s to the 1990s) 41 2.3.2 Claims within the environmental justice frame (from 2000 onwards) 45 2. 4 Conclusion: Connexions, Context and Delivery 50 CHAPTER 3 Situating Justice: Expanding Environmental Justice Towards a Notion of Urban-Environmental Justice 55 3.1 Introduction 55 3.2 Bridging Core Debates on Justice and Environmental Justice 57 3.2.1 Theorizing approaches to calls for distribution, participation and recognition 57 3.2.2 Expanding environmental justice: the ‘specialization’ of the discourse 63 3.2.2.1 Temporally expanded concerns: intergenerational justice 63 3.2.2.2 Geographically expanded concerns: global environmental justice 65 3.2.2.3 Expanding the community of justice: ecological justice 67 3.2.2.4 Returning to the sustainability frame 70 3.3 Defining Environmental Justice in the Context of Urban-Environmental Decision- making 72 3.3.1 Thinking about justice geographically in the urban locus 72 3.3.2 Urban sustainability 78 3.4. Conclusion 83 CHAPTER 4 Justice Driven Environmental Assessment in an Urban Context: Pursuing and Integrating Purpose and Value 89 4.1 Introduction 89 4.2 Exploring EA Regulatory Form and Normative Frames 91 4.2.1 What we are still looking for in EA 91 4.2.2 EA ‘fit for purpose’ 95 4.2.3 From effectiveness to a value-based approach: environmental justice as a substantive agenda for EA 99 vii" " 4.3 Environmental Justice ‘Entry-points’: Integrating Environmental Justice Claims via EA for Major Urban Projects 101 4.3.1 The role of scoping in improving environmental justice-related outcomes 102 4.3.2 Participation in EA 112 4.3.3 EA, planning control and politics of scale 123 4.4 Conclusion 131 PART 2 CHAPTER 5 Impact Assessment at the Interplay of Urban and Environmental Policies Framework in Brazil 134 5.1 Introduction 134 5.2 Constitutional Provisions on Environmental and Urban Policies 136 5.2.1 Contextual aspects towards forging a rights-based approach to environmental protection and urban development 136 5.2.2