ADPF 755 (Federal environmental sanctioning process)

This is an Argument for Failure to Comply with a Fundamental Precept (ADPF), with a request for a precautionary measure, filed by four political parties: the Brazilian Socialist Party (PSB), the Workers Party (PT), the Socialism and Freedom Party (PSOL) and Network for Sustainability (REDE). The aim is to resume the federal environmental sanctioning process. The plaintiffs argue that the federal government has acted to dismantle and weaken the national environmental protection system. They highlight the increase in deforestation and fires in the Amazon and the Pantanal, also affecting indigenous lands, as well as the paralysis of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) and the delegitimization of data relating to these facts by the President of the Republic. They argue that the issuance of Federal Decree 9.760/2019 by the President of the Republic paralyzed the environmental sanctioning process, mainly due to the provision of the conciliation stage in the process and the impossibility of converting fines into environmental services. They point out that the conversion provided for in Federal Law 9.605/1998, which provides for criminal and administrative sanctions for conduct harmful to the environment, is an important institute for fulfilling Brazil's commitment to the Paris Agreement (enacted by Federal Decree 9.073/2017). They allege that the cases awaiting conciliation hearings have been suspended, while the statute of limitations continues to run. The plaintiffs argue that the Federal Government could not have amended Federal Law 9.605/1998, introducing a new phase to the sanctioning process, by means of a decree, in addition to the fact that the normative instrument has several inconsistencies. They argue that paralyzing this system violates articles 225, 231 and 23, caput and items VI and VII, of the Federal Constitution, the principles related to due process of law and the precautionary principle. They request, as a precautionary measure: (i) the declaration of unconstitutionality of Federal Decree 9. 760/2019 and that the environmental sanctioning process be unblocked; (ii) alternatively, that the aforementioned decree be interpreted in accordance with the Constitution, in the terms requested; (iii) if it is understood in a different way to the previous requests, that the counting of the statute of limitations for the processes be suspended until the conciliation hearing takes place; (iv) that the implementation of the requested measures be monitored; (v) that the Federal Government be ordered to submit to the Court a plan for resuming the regular functioning of the environmental sanctioning process; and (vi) for the Federal Government to refrain from taking any further measures that hinder, make unfeasible or paralyze the regular progress of the federal environmental sanctioning process. In the final analysis, they request confirmation of the precautionary measures, with the declaration of unconstitutionality of the Federal Decree in question. Reporting Justice Rosa Weber admitted the Brazilian Association of Members of the Public Prosecutor's Office for the Environment (ABRAMPA) and the Climate Observatory Laboratory (Observatório do Clima) as amici curiae. In its statement, ABRAMPA highlighted the climate issue and reinforced the points made in the initial petition. It pointed out that the increase in deforestation causes socio-environmental damage and that the land use change and forestry sector is the largest source of greenhouse gas (GHG) emissions in Brazil. He pointed out that encouraging the advance of illegal deforestation aggravates global warming, contrary to international climate commitments and Brazilian climate policy. It therefore argued that the situation violates the fundamental right to an ecologically balanced environment and climate stability. Finally, he emphasized the need for the precautionary measures to be assessed and for a judgment to be made upholding the initial requests. The case was redistributed to Justice Luiz Fux. Luiz Fux. In his decision rendered on December 15, 2023, he ruled that the ADPF had lost its object, considering the substantial change in the factual-normative framework that existed at the time the suit was filed, including the express repeal of the provisions that brought about the innovations being challenged. For these reasons, he dismissed the case without a decision on the merits. In February 2024, the decision became final and the case was dismissed.