Federal Public Prosecutor’s Office vs. State of São Paulo, CETESB and IBAMA (Burning of Sugarcane Straw)

This is a Public Civil Action (ACP), with a request for preliminary relief, filed by the Federal Public Prosecutor's Office (MPF) against the State of São Paulo, CETESB and IBAMA. It calls for the cancellation of all licenses and authorizations issued by the state agency regarding the authorization for the controlled burning of sugar cane straw in the municipalities covered by the Campinas Judicial Subsection, as well as for the defendants to be prevented from issuing new licenses without the preparation of an Environmental Impact Study and Environmental Impact Report (EIA/RIMA). The aim is for IBAMA to act in a supplementary way to implement and supervise measures to protect the environment, since the state agencies responsible are not acting satisfactorily. The plaintiff alleges that this activity entails various damages, such as to the atmosphere - generating pollution and contributing to global warming - to public health, among others, in addition to the fact that the burning of sugarcane straw is a practice repudiated by the United Nations Framework Convention on Climate Change - UNFCCC (promulgated by Decree 2.652/1998). Finally, the MPF requests that, in the event of an application for a license for this activity, an EIA/RIMA must be carried out as a condition for this, and the analysis must be comprehensive, taking into account, among other factors, the changes in the atmosphere related to the greenhouse effect and global warming. In its defense, IBAMA claims, among other things, (i) that it is not a party to the lawsuit since it does not have the authority to carry out such licensing, (ii) that the technical criteria relating to the assessment of impacts are acts of technical discretion and (iii) that environmental licensing is unnecessary for the burning of sugarcane straw. The State of São Paulo, in its opposition, argues that the abrupt stoppage of the sugarcane harvesting system will cause damage to economic and social values that will outweigh the impacts on the environment and human health. It identifies the presence of federal and state legislation authorizing the controlled burning of sugarcane straw and that there is state competence to authorize this practice, without the need to prepare an EIA/RIMA. CETESB, in its defence, argues that authorizations for the controlled burning of sugarcane straw include measures to mitigate the negative impacts of the practice, and that the state agency is competent to issue such authorizations. It also argues that it is not necessary to prepare an EIA/RIMA in order to grant authorization for this activity and that the licensing of a sugar-alcohol enterprise covers all activities related to the end activity, such as the agricultural area planted. Finally, it states that the practice respects national and state climate change policies, since the aim is to mechanize sugarcane harvesting and gradually reduce the practice of burning. A preliminary injunction was issued, in which part of the injunction was granted, determining, among other measures: (i) that CETESB and the State of São Paulo should not grant environmental licenses and permits for the burning of sugarcane straw without first carrying out an EIA/RIMA in the region referring to the Campinas Judicial Subsection; and (ii) that IBAMA should monitor the requirement for licensing and EIA/RIMA. The court found that it was unreasonable to immediately suspend all sugarcane straw burning activities and ordered that the measures be applied from the next harvest onwards. Subsequently, the court handed down a sentence in which it ordered CETESB and the state of São Paulo to refrain from granting new licenses and authorizations that do not include specific licensing with EIA/RIMA and take into account the consequences of the activity for the atmosphere, global temperature and others; and IBAMA was ordered to supervise the damage caused by the burning of sugarcane straw. The defendants filed an appeal and in their reasons reiterated the arguments put forward in their defense, requesting that the sentence be reformed and that the initial claims be dismissed. The court unanimously upheld the appeals. The preliminary objections of inadequate legal remedies and the lack of jurisdiction of the Federal Court were rejected. In the decision, it was concluded that the interstate or national dimension of the environmental damage was not established, nor was the omission of CETESB such as to impose IBAMA's competence to supervise the activity, confirming the competence of the state agency. The court highlighted that Resolution 237/1997 of the National Environment Council (CONAMA) did not list the burning of sugarcane straw as an activity subject to environmental licensing, and that the Forest Code and state legislation support the authorization granted by CETESB for the burning of sugarcane straw. It also recognized that the activity is suitable for protecting the environment, since the legislation that regulates it provides for the gradual reduction of the use of fire, and that the sudden suspension of the activity would cause serious economic damage, as well as pointing out that CETESB adopts a specific system for issuing authorization for the activity. In October 2022, the case was definitively closed.