Associação SOS Amazônia and other vs. Federal Union and others (BR-364 Road Environmental Licensing)

In December 2021, the Associação SOS Amazônia, the Organização dos Povos Indígenas do Rio Juruá (OPIRJ), the Comissão Pró-Índio do Acre (CPI Acre), the Coordenação das Organizações Indígenas da Amazônia Brasileira (COIAB), and the Conselho Nacional de Populações Extrativistas (CNS) filed a Public Civil Action (PCA) with a request for urgent injunctive relief against the Federal Union, the National Department of Transport Infrastructure (DNIT), and the Brazilian Federal Agency of the Environment (IBAMA). The lawsuit sought to nullify the bidding process under DNIT Notice 130/2021, which initiated the tender for construction work on the BR-364 highway segment connecting the municipality of Cruzeiro do Sul, Acre, to the Brazil-Peru border, crossing the Serra do Divisor National Park (PNSD). From a climate perspective, the plaintiffs argued that deforestation caused by the project would degrade the Amazon rainforest—the Earth’s primary carbon sink—which prevents greenhouse gases from accumulating in the atmosphere and excessively warming the planet. The forest is essential for mitigating climate change and reducing its effects. They also emphasized that indigenous peoples, particularly isolated groups, are especially vulnerable to the impacts of such projects. The plaintiffs requested preliminary injunctions to suspend the bidding notice, environmental licensing, and construction. Their final demands included: - Declaring DNIT Notice 130/2021 null and void; - Ordering the Federal Union and DNIT to refrain from any further bidding procedures for the BR-364 segment until: - Technical and Environmental Feasibility Studies (EVTEA) were conducted; - Prior, formal, free, and informed consultation was held with affected indigenous and traditional communities, as required by ILO Convention 169; - FUNAI (National Indian Foundation) confirmed the presence of isolated indigenous peoples in the project’s area of influence; - Prohibiting IBAMA from issuing an environmental license for the BR-364 stretch; - Suspending Article 3 of Presidential Decree 97,839/1989, which established the Serra do Divisor National Park. In their defenses, the Federal Union, DNIT, and IBAMA argued that: Using a PCA to challenge the constitutionality of Decree 97,839/89 violated the Supreme Federal Court’s exclusive jurisdiction; The Judiciary should not interfere in administrative decisions; There was no violation of ILO Convention 169, as prior consultation would only be required after confirming the presence of isolated indigenous peoples in the project’s area. They requested the lawsuit’s dismissal. The Unica-Iguatemi Consortium also sought dismissal. FUNAI claimed it had not neglected its institutional duties. June 14, 2023, the judge rendered a decision that declared FUNAI’s lack of standing in the case; Nullified DNIT Notice 130/2021; Ordered the Federal Union and DNIT to refrain from any administrative or political decisions regarding the BR-364 segment until: - Prior consultation (under ILO Convention 169) was conducted with affected indigenous and traditional communities; - FUNAI confirmed the presence of isolated indigenous peoples in the project’s area; - Prohibited IBAMA from granting an environmental license for the BR-364 stretch until the same conditions were met; - Suspended any actions under the contract between DNIT and the Unica-Iguatemi Consortium. The Federal Public Prosecutor’s Office (MPF) appealed, demanding that the Federal Union and DNIT pay R$6,076,000 (the contract’s value) in collective moral damages, to be allocated to environmental recovery projects in the Serra do Divisor National Park and educational programs on environmental and Indigenous culture in Acre, developed with direct input from indigenous communities, the plaintiffs, and the MPF. The Unica-Iguatemi Consortium appealed, requesting compensation from DNIT for contract termination due to the court’s invalidation of the bidding process. The Federal Union, IBAMA, and DNIT appealed, seeking to overturn the ruling and dismiss all original claims.