Federal Public Prosecutor’s Office vs. Volkswagen do Brasil Indústria Ltda

In August 2020, the Federal Public Prosecutor's Office (MPF) filed a Public Civil Action (ACP) against Volkswagen do Brasil Indústria de Veículos Automotores Ltda., due to the installation of software that defrauds emissions tests in diesel vehicles, masking the real emissions of nitrogen oxides (NOx) in "Amarok" vehicles sold in Brazil. The plaintiff alleges that 17,057 Amarok vehicles with the fraudulent device were sold, from the entire 2011 fleet and part of the 2012 fleet of these vehicles in the country. It is pointed out that the practice was discovered in the United States, a scandal known as "dieselgate," affecting more than 11 million vehicles globally. It is alleged that, nationally, the practice occurred in the context of phase L4 of PROCONVE (Program for the Control of Air Pollution by Motor Vehicles), in order to obtain the License for Use of Vehicle or Engine Configuration (LCVM) for the fleets in question.

According to Civil Inquiry 1.34.001.007121/2015-23, a technical report prepared by CETESB (Environmental Company of the State of São Paulo), and the defendant’s confession to IBAMA in 2015, the installed device would "optimize" the NOx results to comply with the legislation, reducing the levels recorded during laboratory tests. It is estimated that the fraud generated a production of pollutants approximately 31% above what is permitted by law, releasing 2,737.2 tons of NOx between 2011 and 2016. It is also noteworthy that in 2015 the defendant was administratively fined R$ 50,000,000.00 by IBAMA, but has not yet made the payment.

In 2017, a recall of the affected vehicles was initiated, but reached less than 30% of the fleet equipped with the fraudulent software (approximately 4,835 vehicles). Additionally, its methodology was not certified by IBAMA (Brazilian Institute of Environment and Renewable Natural Resources), meaning that a large portion of the vehicles emitting NOx above permitted limits are still in circulation. A claim is filed for compensation for collective moral and environmental damages in the amount of R$ 30,000,000.00, payable to the Fund for the Defense of Diffuse Rights.

In its defense, Volkswagen denied any fraudulent practices, arguing that the lawsuit is based on conduct carried out abroad and under foreign law, supported by technical reports produced outside the scope of national judicial scrutiny and without affording the company the opportunity to present its case. It maintained that Volkswagen vehicles sold in the country do not exceed the pollutant emission limits established by Brazilian legislation and that the software would not be capable of altering the measurements. It disputed the validity of the report issued by CETESB, pointing to "severe methodological flaws and inconsistent conclusions" with those obtained in the laboratory by the company. The defendant attached a technical report produced by the Mauá Institute, which concludes that the software could not alter the detected NOx levels and that Amarok vehicles have always complied with the pollutant limits stipulated by national environmental legislation. The defendant argued that the situation in the United States could not serve as a parameter in Brazil, given that the NOx limit established by US legislation is 70 mg/mile, while in Brazil the limit is 1,000 mg/km (approximately 20 times lower). The defendant pointed to a lis pendens between the action and other allegedly similar cases. The defendant argued that the amount requested by the Public Prosecutor's Office was arbitrary and excessive. The defendant requested, preliminarily, the recognition of partial lis pendens, with a proportional reduction in the value of the case and, on the merits, the total dismissal of the plaintiff's claims.

In April 2026, a judgment was issued, condemning Volkswagen to pay compensation for collective environmental moral damages for R$ 15,000,000.00, to be fully reverted to the Fund for the Defense of Diffuse Rights. The preliminary objection of lis pendens was rejected. In its reasoning, the court considered the report of the judicial technical expert, who analyzed the evidence presented by the parties and affirmed the defendant's acknowledgment of the presence of the fraudulent device to IBAMA. Based on the evidence, the report attested that there was a difference between the types of Amarok vehicles and their respective NOx emissions, understanding that the 120kW models (approximately 74% of the affected fleet) met the legal emission limits, while the 90kW models (approximately 26% of the fleet, approximately 4,448 vehicles) exceeded the maximum limit. The court concluded that the "undesirable action device" was present, but, based on the expert report, only used the 90kW vehicle segment to determine the environmental damage and consequently reduced the amount of compensation. It considered the reduction in the sample scope of the damage, from the initial 17,064 vehicles to only 4,448 units, the initiative of a partial recall, and the fact that it had already been fined by IBAMA as mitigating factors in favor of the defendant, thus justifying a reduction in the initially requested compensation amount.

The Federal Public Prosecutor's Office appealed the judgment, requesting an increase in the defendant's conviction to the initial amount of R$ 30,000,000.00. It is noteworthy that this is the procedural stage where the climate is most directly mobilized in this action. The Federal Public Prosecutor's Office argued that the damage stems from the licensing fraud itself, regardless of subsequent quantification of emissions, since the license obtained through fraud is null and void, and the sale and emissions of the Amaroks are illegal from the outset, so the sentence could not restrict the damage to the 90kW vehicles. It points to the technical superiority of the CETESB report which conducted practical tests over the judicial expert report, with the environmental agency concluding that the average emission would be 1.101 g/km of NOx above the legal limit without the software. It is argued that the recall was not voluntary and was not even effective, having been imposed by Brazilian authorities and reaching less than 30% of the fleet.

The use of IBAMA's administrative fine as a factor in reducing civil compensation was rejected, due to the independence of the spheres of responsibility for environmental damage. The use of mitigating factors typical of criminal law was also criticized, as it would be incompatible with collective environmental civil liability. In this sense, it argued that in the context of a climate emergency and crisis, and with NOx associated with respiratory damage, acid rain, and photochemical pollution, the amount of R$ 15 million would be insufficient to fulfill the functions of reprimand, restoration, and deterrence in the face of a multinational company the size of Volkswagen.