O direito fundamental ao saneamento básico e o novo marco legal do setor: arranjos jurídicos institucionais, federalismo de cooperação e a busca pela universalização dos serviços

Abstract

Basic sanitation as a legally structured public policy and the institutional legal arrangements conveyed by its New Legal Framework are the object of this study. Due to the broad legal dimension of the concept of sanitation and in order to approach the object with more precision and coherence, a methodological cut is made to, from a dogmatic perspective, focus the analysis in relation to public services for the supply of clean water. and sanitary exhaustion. Initially, it seeks to demonstrate the recognition of basic sanitation as a human right and, then, it is framed as an autonomous social fundamental right, based on the opening clause of CF88 and considerations are made about its scope. of protection. In light of the design of the Federal State and the federalism of cooperation adopted by the Brazilian constitutional order, based on the principle of subsidiarity arising from it, we seek to offer some directives around the division of competences in the sector, the creation of new institutional legal arrangements and the combination of public and private efforts around the universalization of the right to basic sanitation. Next, the main sectoral innovations promoted are analyzed. The commandment of regionalized provision is understood as the main axis of the changes, because, to make it viable, the central government assumes the role of regulatory coordination by ANA, which starts to issue national standards of regulatory reference. There is greater openness to private participation in the sector and rules are structured for the economic and social viability of the services. The mandatory goals of universal sanitation and their implications in the redesign of public policy are specially addressed. Finally, paradigmatic judgments of the STF are presented that had the New Framework as a reference and, whose argumentative line and result, reveal some implications for the theme developed here.