Federal Public Prosecutor’s Office and Public Prosecutor’s Office of the State of Paraná vs. Federal Environment Agency (IBAMA) and Environment Agency of the State of Paraná (IAT)

On May 11, 2020, the Federal Public Prosecutor's Office (MPF) and the Public Prosecutor's Office of the State of Paraná (MPPR), filed a public civil action (environmental class-action) against the Federal Environment Agency (IBAMA) and the Environment Agency of the State of Paraná (IAT). The plaintiffs argue that Order 4.410/2020, issued by the Minister of the Environment, changed the previous understanding on the prevalence of the Atlantic Forest Law (Federal Law 11.428/2006) over the Forest Code (Federal Law 12.651/2012). The previous understanding considered the Atlantic Forest Law specialty in regulating this biome. The plaintiffs argue that the new understanding to apply the Forest Code, which is a less protective general rule, would allow the consolidation of occupation of protected areas (APP) illegally deforested (until July 22, 2008). They emphasize the need for the provisions of the Atlantic Forest Law to prevail due to the specialty and greater protection afforded to the biome. They highlight the importance of the biome and the contribution of its deforestation to greenhouse gas (GHG) emissions, arguing that the National Policy on Climate Change (PNMC – Federal Law 12.187/2009) provides for preservation of biomes considered to be National Heritage, such as the Atlantic Forest. As a preliminary injunction, the plaintiffs request a series of administrative measures to prevent the cancellation of environmental infraction notices issued by the state of Paraná in the event of unauthorized suppression, cutting and/or use of remaining Atlantic Forest vegetation, and that the state environmental agency (IAT) refrain from approving documents that consolidate occupation in protected areas (APP) on properties in the Atlantic Forest with suppressed vegetation. In the final instance, they request that the injunctions be confirmed and that the IAT refrain from granting environmental licenses in favor of activities in APPs in the Atlantic Forest in disagreement with the special legislation. In their defense, IBAMA and IAT argued that there is no antinomy between the Atlantic Forest Law and the Forest Code, claiming that the Forest Code created an exceptional regime to govern deforested areas consolidated over time in a less rigorous manner, which is applicable to any biome. Both requested that the initial claims be dismissed. The lower court granted the preliminary injunction requested by the plaintiffs. It considered the special nature of the Atlantic Forest Law, which seeks stricter legal protection for the biome. Based on the principles of prevention and precaution, the judge held that the application of the Forest Code's provisions in the Atlantic Forest biome could result in serious damage to the environment. The ruling upheld the case and partially granted the claims, ordering: (i) the IAT and IBAMA to refrain from canceling environmental infraction notices, embargo and interdiction terms and seizure terms in the state of Paraná and referring to the Atlantic Forest biome; (ii) the IAT not to approve Rural Environmental Registrations (CARs) that are intended to consolidate improper occupation of Permanent Preservation Areas (PPAs) and legal reserves on properties in the Atlantic Forest biome; and (iii) the IAT to stop granting environmental licenses for projects in PPAs located in the Atlantic Forest biome, without due observance of specific protective legislation. It was determined that the measures should be complied with immediately, without being conditional on the offering of a bond and subject to a fine for each act of non-compliance, due to the postulate of prevention, precaution and the principle of in dubio pro natura. The decision highlighted important points such as: (i) the significant size of the Atlantic Forest biome and that forests play the role of climate regulators, contributing to the stabilization and reduction of average temperatures; (ii) the impacts of global warming generated by the irrational use of natural resources combined with deforestation; (iii) the use of market mechanisms, such as the carbon credit market, to protect the Atlantic Forest; and (iv) the economic benefits obtained from the ecological services provided by nature, i.e. maintaining ecological integrity by conserving biodiversity, conserving water and water services, regulating the climate, conserving and improving the soil, among others. During the judgment of the motion for clarification filed against the ruling, the court fully maintained the dispositive part of the ruling but supplemented the reasoning of the decision already issued. It argued that the issued ruling reinforces environmental protection and, among the grounds for the decision, dedicated a sub-topic to the issue of climate change, asserting that there is a consensus that forest degradation can impact the climate due to CO2 emissions and the impairment of its function as a thermal regulator. IAT and IBAMA filed an appeal against the issued ruling. The Federation of Agriculture of the State of Paraná (FAEP) and the Paraná Association of Forestry-Based Companies (APRE), as legal representatives of third parties adversely affected, also appealed.