Instituto Internacional Arayara vs. National Electrical Energy Agency and Brazil

On September 27, 2022, the NGO, Instituto Internacional Arayara filed a Public Civil Action (environmental class-action) against National Agency of Electrical Energy (ANEEL) and the Federal Government to challenge the implementation of ANEEL Auction N 08/2022, which aims to hire energy from gas-fired thermoelectric plants. The Auction results from the Federal Law 14.182/2022, which determined the privatization of Brazilian Energy Company Eletrobras, but whose legislative process included the insertion of unrelated content, determining the contracting of energy from gas-fired thermoelectric plants. The plaintiff alleges that the climate crisis is incompatible with the increase in greenhouse gas emissions (GHG) that will be generated by the thermoelectric plants, which could lead to a 39% increase in annual GHG emissions for the electricity sector compared to the levels registered in 2021. It points to several negative impacts associated with the projects of gas-fired thermoelectric plants to be installed in areas of the Legal Amazon. They will generate socio-environmental impacts on traditional communities, native peoples, and protected areas; compromise the use of local water resources, due to the high water-use; and increase the price of electricity for consumers. This would worsen climate change and violate the National Environmental Policy Act (Federal Law 6.938/1981), the National Climate Change Policy (Federal Law 12.187/2009), the Paris Agreement, and compromise the achievement of the Brazilian NDC. It is requested, as a preliminary injunction: (i) the suspension of ANEEL Auction or the suspension of its effects; (ii) in the event the Auction is maintained, it is requested that the defendants submit an inventory of GHG emissions from all the thermoelectric plants involved, as well as the impact of the emissions on compliance with the Brazilian NDC. In final, it is requested: (i) the cancellation of Auction nº 008/2022, with the annulment of all its effects and the determination that no new similar auction be held on the basis of Federal Law 14,182/2022; (ii) in the event the Auction is maintained, that the defendants be required, definitively, to submit an inventory of GHG emissions of all the thermoelectric plants involved, as well as the impact of the emissions on compliance with the Brazilian NDC. On June 22, 2023, the court rejected the request for an injunction, considering that there was no urgency or danger of delay; on the contrary, it recognized that suspending the effects of ANEEL's auction would entail a danger of reverse damage. An interlocutory appeal was then filed against the decision, in which it was requested that the effects of ANEEL Auction 08/22 be suspended or, if the auction is maintained, that the defendants submit, within ninety days, an inventory of greenhouse gas emissions from all the fossil fuel-fired thermoelectric plants involved in the auction, as well as the impact of these emissions on compliance with the NDCs.