TITLE:
Regulatory Oversight for Better Regulatory Governance: The Role of the Federal Court of Accounts Following the Mining Dam Collapses in Brazil
AUTHORS:
Rosinaldo Sampaio Lobato Junior
KEYWORDS:
Regulatory Oversight, Regulatory Governance, Supreme Audit Institutions, Federal Court of Accounts, National Mining Agency
JOURNAL NAME:
Beijing Law Review,
Vol.14 No.3,
September
22,
2023
ABSTRACT: Countries worldwide, especially those in the OECD, have been engaging in discussions about Regulatory Oversight Bodies (ROBs). In 2012, the OECD Regulatory Policy and Governance Council issued a Recommendation. Principle 3 of this recommendation mandates countries to establish mechanisms and institutions to actively oversee regulatory policy procedures and objectives, support the implementation of regulatory policy, and thereby enhance regulatory quality. ROBs primarily serve five main functions: 1) scrutinization of the quality control of regulatory instruments; 2) identification of policy areas where regulation can be made more effective; 3) systematic improvement of regulatory policy; 4) promotion of co-ordination; 5) guidance, advice and support. These responsibilities overlap with those undertaken by traditional entities such as Central Government Ministries, Secretariats, Parliamentary audit units, and Supreme Audit Institutions. The latter category includes Brazil’s Federal Court of Accounts (FCA). This article emphasizes the FCA’s role as a regulatory oversight body, aiming to improve regulatory governance and the broader regulatory landscape. A key illustration of this role is the FCA’s supervision and intervention over the Brazilian National Mining Agency. The present article presents an analysis that covers 12 years of public audits, contrasting the FCA’s actions before and after the disastrous mining dam collapses in 2015 and 2019 occurred in Brazil. These events are among the most devastating environmental disasters in Latin America in recent decades. While the article is largely descriptive, it also indicates that changes within the Brazilian Court of Accounts are in tension with traditional interpretations about its Constitutional role. In this context, the article suggests that the FCA has embraced a responsive oversight approach, resulting in improvements in its structure and functions. The article is segmented into three chapters. The first chapter lays out the theoretical foundations and offers insights about Supreme Audit Institutions on an international scale and the Brazilian Federal Court of Accounts on a national scale. The second chapter delves into the reasoning behind viewing Courts of Accounts as Regulatory Oversight Bodies. The third chapter, predominantly empirical, showcases the potential of a Regulatory Oversight Body in shaping the institutional governance of administrative agencies.