Federal Public Prosecutor’s Office v. Ricardo Salles and Federal Union

On July 6, 2020, the Federal Public Prosecutor’s Office (MPF) filed a Civil Action for Administrative Improbity, with a request for precautionary removal from office, against Ricardo Salles, at the time Minister of Environment of Brazil, claiming the practice of intentional acts that violated the constitutional duty to protect the environment. It states that the former Minister, through actions, omissions, practices, and speeches, promoted the dismantling of environmental policies, favoring unlawful interests in violation of the constitutional principles that guide the Public Administration. The MPF raises a vast set of acts by the former Minister that they allege have contributed to the intentional dismantling of environmental protection, based on four main aspects: (i) regulatory measures; (ii) transparency and participation measures; (iii) budget measures; and (iv) monitoring measures. As for normative dismantling, climate is highlighted regarding the extinction of the Secretariat of Climate Change and Forests. The MPF claiming that such an act would signal that the combating climate change is not a priority of the Federal Government and would distance Brazil from its international and national climate commitments. Regarding the budget dismantling, it questions the reduction of resources allocated to the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) and the paralysis of the Amazon Fund due to the extinction of the operational and guiding bodies. The Amazon Fund is dedicated to financing REDD+ actions linked to the reduction of Greenhouse Gas (GHG) emissions, and the MPF mentions its paralysis influences in lack of financing and implementation of the Plan for Prevention and Control of Deforestation in the Legal Amazon (PPCDAm), provided for in the National Policy on Climate Change – PNMC. The increase in deforestation and the Ministry's lack of action to combat it are associated with the failure to comply with climate commitments and deforestation reduction targets. Given a broad picture of dismantling of the protection of the environment, the MPF requested, as a preliminary injunction, the precautionary removal of Ricardo Salles from the post of Minister of the Environment, with a definitive request that the acts questioned be declared unlawful and as to sentence him to loss of public office. The first instance judge denied the preliminary injunction request. In its reply, the Federal Government denied the existence of any wrongdoing by the former minister Ricardo Salles. It alleged the principle of separation of powers, affirming the inadmissibility of a lawsuit questioning the choice of the President regarding the appointment of public positions of trust. It emphasized that the acts questioned by the MPF are decisions of administrative merit, within the scope of the competencies of the public manager to direct public policies. Also, that they were carried out in accordance with the environmental agenda and in compliance with the laws and the Constitution. Ricardo Salles presented his defense on October 3rd, 2023. He claimed there was no act of improbity, stating that the lawsuit was an attempt to force the judiciary to meddle in political choices. With regard to the environmental-climate issue, he alleged that there was no proof or evidence of any supposed predatory intent, or any evidence of Ricardo Salles’s private interests overlapping with public, diffuse or collective interests. The defense maintains that there has been no regulatory disruption, contrary to the initial allegations. It also argued that there had been no dismantling of transparency and participation bodies, since government policies can vary without this immediately meaning administrative impropriety. It also rejected the thesis of the alleged decrease in social representation in councils, with the edition of Decree No. 9,806/2019. Regarding the removal of information with maps of priority areas for biodiversity conservation from the internet, he claimed that the initial complaint was inept, emphasizing that this allegation is based solely on journalistic "news", which is not confirmed by mere access to the links attached to the case file. As for the alleged interference in the dissemination of data by INPE, it said it had no influence over the agency, since it is a research unit subordinate to the Ministry of Science, Technology and Information (MCTI). With regard to the undue restriction of institutional communication, it argued that the initial complaint was inept due to the lack of supporting evidence and insufficient description of the facts. It also argued that there had been no budgetary disruption, since it is not the responsibility of the Minister of State to draw up or discuss the Budget Law. He emphasized that there had been no dismissals of civil servants with a misuse of purpose, and he also denied that there was any risk to civil servants in their field activities or that the defendant's management had in any way affected this safety. Finally, he concluded by emphasizing that there was no act of improbity due to the absence of a material violation of the law and the absence of malice, requesting, preliminarily, the immediate dismissal of the action, in favor of the retroactivity of the more benign rule - with the new wording of Law 8.429/92, by Law 14.240/21. In the alternative, he argued that the action should be immediately dismissed due to the contestant's lack of competence to carry out the acts embodied in the decrees and the absence of a causal relationship with the alleged illicit acts, affirming the manifest absence of an act of administrative misconduct. If the previous theses are overcome, alleging that the initial complaint is inept due to the atypical nature of the facts set out in the initial complaint, as well as the lack of individualization and supporting evidence demonstrating the occurrence of the alleged conduct, he requested that the initial complaint be rejected. On the merits, he requested that the complaint be dismissed and that the Public Prosecutor's Office be condemned for bad faith litigation.