Arayara Institute vs. ANP and Federal Union (Anticipated Production of Evidence on oil and gas auctions)

On December 12, 2023, the Arayara International Institute of Education and Culture filled an Autonomous Action for the Anticipated Production of Evidence against the National Petroleum, Natural Gas and Biofuels Agency (ANP) and the Federal Union, with the aim of having them clarify the climate impact of their offers of blocks for oil and gas exploration. The plaintiff argues that the emissions associated with the ANP's offers of blocks for oil and gas exploration could compromise compliance with the targets set by Brazil under the Paris Agreement, which have been internalized in the Brazilian legal system with supra-legal status. Also, it is argued that oil and gas exploration contradicts the national energy policy's objectives, which include protecting the environment and mitigating GHG emissions. The plaintiff states there is no transparency about the calculations or emission estimates associated with the ANP's offers of blocks for oil and gas exploration or mitigation plans. He, therefore, seeks to provide the information needed to assess these impacts and possibly avoid the need for subsequent legal action to correct the country's energy policies. Specifically, the aim is to clarify whether the federal government (i) estimates the GHG emissions potentially generated by the offer of oil and gas exploration blocks in ANP auctions at the time of or before the publicity of the offer notice; (ii) calculates how the emissions that will result from the oil and gas exploration of the blocks offered, if they are acquired, may affect compliance with the Brazilian NDC and the Paris Agreement; (iii) has some kind of calculation or analysis of how emissions from burning Brazilian oil exported to other countries affect the global climate system; (iv) has a plan for mitigating emissions from oil and gas exploration in the blocks offered by the ANP; and (v) takes these emissions into account when establishing the country's energy policy. On July 4, 2024, ANP filed its defense and argued that energy sources in the future will still include oil and natural gas. It said that ANP only implements public policies in the energy sector and is not responsible for formulating them and, therefore, the requests in the lawsuit should be addressed to the body that formulates the policy, the National Energy Policy Council (CNPE). Finally, it argued that the offer of blocks for the exploration and production of oil and natural gas, in itself, does not have the effect of emitting GHGs since there is no guarantee of the occurrence of deposits in these regions and, therefore, it would not be possible to estimate in advance the result of emissions from eventual production in the auctioned block. On July 18, 2024, the Federal Union filed its defense and made the following responses: (i) GHG emissions are calculated indirectly, based on existing activities and historical data, and the assessment of an oil or natural gas discovery takes place only in an area under an exploration and production contract; (ii) the official means of verifying the national target is the National Inventory of GHG Emissions and Removals, which is submitted periodically to the UNFCCC; (iii) calculations of national GHG emissions from the energy sector do not account for emissions from the future use of exported oil, as these emissions are accounted for by the countries that import the oil; (iv) Brazil has established projects, activities, programmes and policy measures to monitor and mitigate its emissions, monitor impacts and adapt to climate change; (v) the deliberations of the CNPE, the body responsible for formulating energy policies and guidelines, are based on studies, assessments and technical documents from government bodies and entities in the energy sector, and these documents do not include data on potential emissions. A request was made for the case to be dismissed without a decision on the merits and, alternatively, for the procedure to be recognized as exhausted given the information presented in the Information Note. In March 2025, after the information provided by the defendants had been submitted and the plaintiff had requested that the case be dismissed, the judge approved the request to withdraw and dismissed the case without a decision on the merits. The parties were summoned and the case was dismissed, with no appeal being possible.