Federal Public Prosecutor’s Office v. Clair Cunha da Silva (Deforestation and climate damage in the PAE Antimary)

On June 29, 2021, the Federal Public Prosecutor's Office (MPF) filed a Civil Public Action (CPA) against Clair Cunha da Silva for deforesting an area of 370.97 hectares between 2011 and 2020 in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal, as it was part of an Agro-Extractivist Settlement Project (PAE) owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities.

This CPA is one of 22 lawsuits filed by the MPF as a result of an investigation conducted under Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation within the Antimary Agro-Extractivist Settlement Project (PAE), though each case involves different defendants. The lawsuit is based, among other things, on Brazilian environmental law concerning the constitutional protection of the environment, allegations of deforestation, propter rem civil liability for environmental damage (including climate damage), and collective moral damages. It also references the unauthorized emissions of greenhouse gases (GHG) caused by the illegal deforestation, calculated at 215,909.79 tons of carbon dioxide, which directly contribute to Brazil’s deviation from its climate goals—placing it out of step with both national and international commitments established under the National Policy on Climate Change (PNMC) (Federal Law 12.187/2009) and the Paris Agreement (promulgated by Federal Decree 9.073/2017).

Among other requests, the lawsuit seeks:
(i) reparation for the damage caused by illegal deforestation;
(ii) payment of compensation for intermediate and residual material environmental damage;
(iii) payment of compensation for climate damage; and
(iv) payment of compensation for collective moral damages.

On February 14, 2022, Clair Cunha da Silva filed an answer, arguing that she had never held possession or ownership of the area, as she had been living in another state for more than 50 years. She contended that the responsibility for preserving, protecting, monitoring, and preventing invasions and exploitation of the area lies with public officials. She requested that the case be dismissed in its entirety.

Subsequently, INCRA was included in the active party as a co-litigant assistant to the plaintiff.

A judgment was issued that partially granted the requests. The court recognized the occurrence of environmental damage resulting from the unauthorized removal of vegetation, highlighting the importance of the Amazon for the stability of the climate system, the maintenance of the hydrological cycle, the preservation of biodiversity, and the fulfillment of climate commitments. In this context, the judgment recognized that the deforestation of the area resulted in the estimated emission of 58,895.20 tons of carbon, equivalent to 215,909.79 tons of CO₂, directly contributing to the worsening of the climate crisis. The judgment also emphasized that the deforestation is part of a broader context of invasions, land grabbing, and the distortion of the extractive purpose of the Antimary PAE, to the detriment of traditional communities that depend on the standing forest for their subsistence. Finally, the decision: (i) ordered the defendant to fully restore the degraded area (370.97 hectares), by submitting a Degraded Area Recovery Plan (PRAD) to IBAMA; (ii) imposed a non-action obligation, consisting of a prohibition on the use of the area, authorizing environmental agencies to seize, remove or destroy assets that impede its natural regeneration; (iii) ordered the defendant to pay compensation for material damages, as well as for intermediate, residual and climate damages; (iv) ordered him to pay compensation for collective moral damages, set at 5% of the material damages ascertained. Finally, declared the respective CAR null and void and allocated all the resources obtained to the Fund for Diffuse Rights.