Health and Sustainability Institute v. the Federal Union and others (Emission of pollutants by motor vehicles) (“Instituto Saúde e Sustentabilidade vs. União Federal e outros (Emissão de poluentes por veículos automotores)

This is a Public Civil Action (ACP) filed by the Health and Sustainability Institute, with a request for urgent relief, against the Federal Union, IBAMA, Toyota do Brasil Ltda, Nissan do Brasil Automóveis Ltda and Renault do Brasil S.A., with the aim of declaring the nullity of Normative Instruction (IN) 23/2021, issued by IBAMA, which extends the validity of Licenses for the Use of Vehicle or Engine Configuration for models that do not meet the new pollutant emission limits of the PROCONVE L-7 phase, provided for in CONAMA Resolution 491/2018, referring to light road vehicles. The Resolution deals with the Program on Air Pollution from Motor Vehicles (PROCONVE), which, among its objectives, seeks to reduce the levels of pollutant emissions from motor vehicles in order to meet Air Quality Standards. The plaintiff organization points out that the extension established in the IN was the result of a request made by the defendant companies. It argues that the IN extends the permission to produce and sell vehicles that emit more greenhouse gases (GHG) and goes against the commitments to reduce emissions made by Brazil under the Paris Agreement (enacted by Federal Decree 9.073/2017). In addition, it goes against the public authorities' duty to protect the environment, set out in Article 225 of the Federal Constitution, and the principles of prevention, precaution and prohibition of environmental setbacks. It also claims that the normative change generates environmental damage, to human health and to the climate system, insofar as it authorizes the unrestricted growth of the automotive fleet, characterized by the burning of fossil fuels, which is proven to be responsible for worsening the greenhouse effect. It argues that the effects of the climate crisis disproportionately affect the most socio-economically vulnerable populations. For these reasons, it requests, among other measures, in advance, (i) the suspension of the effects of IN 23/2021 and, on the merits, (ii) the declaration of nullity of said IN, (iii) the condemnation of the defendants for material damages to the environment and (iv) the condemnation of the defendants to pay compensation for collective damages. In an administrative order, the court noted the participation of the Collective Law Institute (IDC) as an interested third party and informed that, in due course, it would consider the request for amicus curiae. The court granted the request for injunctive relief and ordered the defendants to submit reports containing the number of vehicles produced between December 31, 2021 and March 31, 2022 that did not meet the emission limits of the PROCONVE L-7 phase and suspended the effects of IN 23/2021. In addition, it granted amicus curiae status and the Federal Public Defender's Office as an active litigation assistant. In its defence, Toyota do Brasil Ltda. claimed that, although it had arequested IBAMA and CONAMA for a temporary authorization to end the manufacture of vehicles in accordance with the specifications of PROCONVE phase L-6, it had not made use of the time extension granted by IN 23/2021, since all the vehicles relating to this phase were completed in 2021. It sought recognition that the court chosen to file the lawsuit was inappropriate and that the company was not a party to the lawsuit. It defended the legality of IN 23/2021, as it had been widely discussed and issued by a competent body. It clarified that the IN only covered vehicles whose engines were already authorized for the PROCONVE L-6 phase, but which had not been finalized due to the COVID-19 pandemic, which rules out the existence of retrogression or environmental damage. It requested, on a preliminary basis, that the case be dismissed without a decision on the merits. In a final plea, it requested that the initial claims be dismissed. In its response, Nissan argued that it was not a legitimate party to the lawsuit because it did not fall within the scope of IN 23/2021. It claimed that it did not extend the production of PROCONVE phase L-6 vehicles beyond the date established in the IN and that all vehicles produced by the defendant as of 2022 would already comply with the requirements of phase L-7 of the program. It argued that the IN is regular and argued that the company's responsibility for the alleged damage had not been proven. It also explained that its production activities are compatible with national and international climate targets and commitments. It requested that the company be recognized as an illegitimate party in the case and, in the alternative, that the claims be dismissed. IBAMA also filed a defense. It raised the preliminaries of inadequacy of the chosen forum for the judicial relief sought. It argued for the legality and constitutionality of IN 23/2021, since the administrative act only extended the validity of some Licenses for the Use of Vehicle or Engine Configuration (LCVM) issued during PROCONVE's L-6 phase, totaling 5,398 vehicles manufactured during its coverage period. It clarifies that the IN stipulated that vehicle manufacturers and importers who had cars that had not been manufactured due to the lack of electronic components caused by the COVID-19 pandemic should inform IBAMA of the quantities affected by January 31, 2022, in order to complete their manufacture by March 31, 2022 and complete their marketing by June 30, 2022. The normative act stipulated that if the vehicles could not be assembled by the beginning of 2022, they could not be used and would be discarded. In this way, the IN set up a "carry-over stock" of vehicles to allow those that were already in the manufacturing process to enter the market, whose engines did not represent an increase in emissions beyond what was already foreseen for PROCONVE's L-6 phase and, therefore, environmental damage would not be configured. IBAMA requested that the action be dismissed without a decision on the merits and, in the alternative, that the claims be dismissed, with the revocation of the provisional injunction granted. In its opposing brief, the Federal Government argued, preliminarily, that it was illegitimately liable to be sued and that the chosen via was inappropriate. It defended the validity and effectiveness of IN 23/2021, which was issued due to force majeure caused by the COVID-19 pandemic in order to avoid a greater financial crisis. It argued that the Union's civil liability was not established, that there was no material damage to the environment or collective moral damage and challenged the amount of compensation requested in the initial claim. It requested that the preliminary objections be accepted in order to extinguish the action without resolving the merits and, in the alternative, that the claims be dismissed. Renault do Brasil S.A., in its defense, claimed that of the 5,398 units of vehicles whose manufacture had been completed in 2022 based on IN 23/2021, only 125 belonged to the brand. It claimed that, during 2021, Renault had produced other vehicles in advance that already complied with phase L-7 of PROCONVE. It clarified that the IN did not imply an increase in the circulating fleet of vehicles beyond what was planned for the L-6 phase of the program. It reiterated the arguments used by the other defendant car companies regarding the legality, validity and proportionality of the IN. It argued that the company's completion of production of 125 vehicles in accordance with phase L-6 of PROCONVE did not cause environmental damage. It requested that the claims made in the initial petition be dismissed. In the alternative, it requested that consideration be given to the fact that Renault produced and sold 125 vehicles based on IN 23/2021 (2.31% of existing vehicles covered by the IN) so that any liability of Renault for environmental damage or collective moral damage should be limited to this proportion. The parties were called to comment on the evidence to be produced. On this occasion, the Institute of Collective Law (IDC), amicus curiae, filed a petition requesting that documents and studies submitted by the plaintiff be analyzed, also determining the reversal of the burden of proof required and that all the requests made in the initial petition be upheld, considering that IN 23/2021 is at odds with Brazilian efforts to reduce the impact of the climate crisis and should be clearly informed and justified. The merits have not yet been judged.