Biostratum Distribuidora de Combustíveis SA v. Federal Union (Acquisition of CBios)

This is an action filed as an Ordinary Action, with a request for injunctive relief, by Biostratum Distribuidora de Combustíveis SA against the Federal Government, aiming at the removal of the mandatory target for the acquisition of Decarbonization Credits (CBios) that was imposed on it, equivalent to 9,959 CBios until the share distribution. The CBios were established by the National Biofuels Policy (Federal Law 13.576/2017) - known as RenovaBio - which, in turn, was enacted because Brazil is a signatory to the Paris Agreement. Renovabio, among other objectives, aims to contribute to the fulfillment of the commitments assumed by the country under the Paris Agreement, to promote the expansion of biofuels in the energy matrix and the reduction of Greenhouse Gas (GHG) emissions in the production, commercialization and use of biofuels. To this end, it provides for the establishment of annual national decarbonization targets for the fuel sector, which are, each year, individualized for fuel distributors and fulfilled by companies through the acquisition of CBios, under penalty of sanctions provided for in the Law. Annual targets are defined by the National Energy Policy Council (CNPE), and are individualized by the National Agency for Petroleum, Natural Gas and Biofuels (ANP). The plaintiff company alleges that the obligation to acquire CBios sets the imposition of a new tax, with the Decarbonization Credit being a residual tax, as it is not provided for in the Federal Constitution and for meeting the requirements set out in the National Tax Code (Federal Law 5.172/1966). It claims that, for the imposition of such a tax, the Federal Constitution requires that a Complementary Law be issued and that the tax be non-cumulative, which does not occur in the case of CBios, implying a formal defect in its institution. The allegation also adds that, as a fuel distributor, it is not responsible for the emission of polluting gases, but only for the commercialization of fossil fuels, and it is logical that the fuel producer was the recipient of the compulsory purchase of CBios. It also states that the distribution of fuels is a low-polluting activity. It requests, in an injunction, the suspension of its CBios acquisition target. Finally, it requires the confirmation of the guardianship request and the recognition of the unconstitutionality of the legislation that determines the institution of the compulsory target to the company for the acquisition of CBios. The preliminary injunction was rejected, on the main grounds that (i) the constitutional principles for the protection of the environment set out in the Federal Constitution entail the obligation to reduce the environmental impact of human conduct, whether in the production or distribution of fossil fuels; (ii) the establishment of CBios acquisition targets does not constitute the creation of a tax norm, but an environmental administrative norm, based on constitutional and international dictates for the reduction of environmental pollution, whose deleterious effects are felt worldwide, such as increasing the heat and decrease in the amount of rain; (iii) the argument that the distribution company does not pollute is not credible. As no matter of a tax nature was recognized in the demand, it was determined the redistribution of the action to the federal court with competence in administrative matters. In contestation, the Federal Union defends, among other points: (i) that the creation of CBios is in line with environmental rules, functioning as a way of encouraging social actors to preserve nature, with the creation of compensatory measures being essential to the reduction of GHG emissions and for the effectiveness of RenovaBio; (ii) that CBios are based on the idea of converting the environmental costs of using fossil fuels into revenue for biofuel producers, offering efficiency incentives for their sustainable growth; (iii) that the Decarbonization Credits provide the value of externalities present in the fuel market, generating a competitive balance between fossil and renewable fuels; (iv) that CBios are a market solution without changing taxes; (v) the absence of delay in the disclosure of annual targets; (vi) that there was sufficient time for the acquisition of CBios and their full availability in the market; (vii) the absence of a tax legal relationship, especially since it is an obligation to reduce GHG emissions, through the acquisition of CBios offered by other private parties, with no pecuniary relationship between the Public Administration and the distributor; and (viii) the impossibility of moving away from the mandatory annual target of decarbonization and acquisition of CBios by the distributors. The decision at first instance dismissed the requests, on the same grounds as the decision that rejected the request for preliminary injunction requested in the initial, confirming it. The plaintiff filed an appeal, arguing, in addition to the arguments presented in the initial petition, that the imposition of the acquisition of CBios to fuel distributors hinders the activity of the economic sector, violating the principle of Free Enterprise. The Federal Union presented counterarguments to the appeal, requesting the maintenance of the sentence, in the same terms presented in the answer. The appeal was dismissed. The court argued that RenovaBio is an instrument that gives effect to the provisions of art. 225 of the Federal Constitution and that it does not have the nature of a tax. The policy imposes an obligation to do something, consisting of a reduction in carbon emissions by fuel distributors, which, only when not complied with, becomes a pecuniary obligation. Procedural history: Decision on August 13, 2021. Contestation on March 18, 2021. Decision on November 16, 2020. Petition filed on October 26, 2020.