Article: Reforms of administrative organization in matters of environment and health: is there a constitutional model?

Debate about this is taking place due to the new Environmental Permitting Law (15,190 of 2025, which critics have dubbed the Law of Devastation) and the subsequent Interim Measure 1,308 of 2025.

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Accusations of unconstitutionality have been numerous. Among other reasons, because the new law replaced, reduced or removed the powers provided by the previous law for certain environmental units. For critics, Ibama would have a quasi-existential status, a fixed constitutional monopoly on certain administrative powers, which are also existential (with regard to acts of release of activities, for example).

As a result, redistribution or sharing of powers, even partially (in favor of state units, for example), as well as exemption from prior acts of liberation from the state would be unfeasible – the press has shown that the law, in some cases, replaced these acts with so-called “self-licensing”.

What can we say about this debate?

Well, it has not been easy to separate legal-constitutional concerns, about what is or is not compatible with the Constitution, from opinions on substance, about the model of administrative regulation that each of us tends to find preferable.

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It is good to keep in mind that the current controversy is a repetition of another, still ongoing, over Law 14,785 of 2023, dubbed by critics as the Poison Law. This law partially reorganized the responsibilities of Ibama and Anvisa regarding agricultural pesticides, to involve other administrative units, such as the Ministry of Agriculture. Also on this occasion many disagreements arose. Is the reform dangerous? Has the Constitution been violated?

For the legal debate on pesticide laws and environmental permits, objective data must be taken into account. There is no express constitutional rule creating monopolies for Ibama and Anvisa. In the Constitution, the rules in this regard are very generic.

An example is art. 225, § 1, VII, which assigns to the generic “Public Power” the task of “protecting flora and fauna”. Another example is that of the arts. 197 and 198, on the health system, according to which it is “up to the Public Power to decide, in accordance with the law, its regulation, inspection and control”.

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These standards, which refer to public administration in general, and not to specific organizational solutions, suggest a broad power of direction for the legislator allowing him to vary administrative solutions to protect health and the environment.

It is legitimate for each of us, depending on our experiences, our expectations and our loyalty, to doubt the intentions of legislators of different eras and to fear that new legal rules will worsen the situation. But will this be enough to, on the basis of constitutional arguments of principle, defend the regulation and administrative organization of the past as incapable of change?

The Federal Court, despite its legislative audacity in numerous other cases, respected the legislative space to define and redefine the institutional mechanism intended to achieve public objectives, respecting two limits. The first, of course, is specific constitutional rules – but there are no such rules for licensing and defensive matters.

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Another limitation is that reforms cannot cause the direct and certain destruction of rights protection networks. To this end, the STF seeks to analyze changes contextually, considering their effects on the regulatory environment, without invoking a principle of immutability.

For the STF, it is normal for legislation to promote changes in institutional arrangements. Only reforms which incontestably annul or render unrealizable the effectiveness of the rights provided for by the Constitution should be considered unconstitutional, due to the violation of the principle of prohibition of regression.

Examples of legal reforms accepted by the STF are the decisions of ADI 7,008, of 2023 (on a concession law in São Paulo in the areas of ecotourism and timber exploration), of ADI 5,014, also of 2023 (on the powers of an environmental agency of Bahia), of ADPF 910, again of 2023 (in relation to the rule of a decree which provided for the competence of the Ministry of Agriculture to give priority to the transformation of certain pesticide registrations) and, with regard to other sectors, in RE 664.189, of 2014 (on the powers of the Central Bank and Cade).

Reforms always cause doubts and conflicts. There are no better models in principleOr legally unacceptable in the abstract. What is always at stake are options, tested and replaced in search of new balances, working better or worse depending on changing contexts.

It is not easy for Justice to claim the power to choose the ideal administrative organization for the care of public values. This is why, in fact, the STF did not have the courage to judge the creation of the National Council of Justice unconstitutional, even if it had radically modified the administrative organization of the judiciary itself and despite the suspicions of businesses at the time.

* Carlos Ari Sundfeld is a professor at FGV Direito SP