Instituto Preservar, AGAPAN and Núcleo Amigos da Terra vs. Federal Union and others (Climate emergency in Rio Grande do Sul state)

On July 6, 2023, Instituto Preservar, Associação Gaúcha de Proteção ao Ambiente Natural - AGAPAN and Núcleo Amigos da Terra - Brasil filed a Public Civil Action (ACP) against the Federal Union, Federal Environment Agency - IBAMA, National Electric Power Agency - ANEEL, Companhia de Geração e Transmissão de Energia Elétrica do Sul do Brasil - Eletrobras CGT Eletrosul (SE & UTE Cantiota III), the State of Rio Grande do Sul, Rio Grande do Sul environmental agency - FEPAM and Companhia Riograndense de Mineração - CRM. The lawsuit seeks to order the defendants to adopt effective measures to comply with the guidelines, deadlines and targets set out in federal and Rio Grande do Sul 's climate laws. It is argued that in the period from 2009 to 2023, the Federal Government, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with the legal guidelines and did not meet the deadlines and targets set out in the National Policy on Climate Change (PNMC), the Paris Agreement and the Rio Grande do Sul ‘s Policy on Climate Change (PGMC), as there was no effective implementation of instruments such as the Strategic Environmental Assessment (SEA), equal and transparent composition of the Rio Grande do Sul Climate Change Forum (FGMC) and the Brazilian Climate Change Forum and no measures have been taken to reduce greenhouse gas (GHG) emissions from coal-fired power plants in the state of Rio Grande do Sul, with a Just Energy Transition (TEJ) plan, which results in the ineffectiveness of these climate standards. It is pointed out that the climate crisis has led to water shortages in the municipality of Candiota, which has been recognized by municipal decree and that, in parallel to this situation, the various coal-fired thermoelectric plants in the region use local water for cooling, causing damage to the water system, the biome and the climate. It is alleged that the defendants have neglected climate policy when dealing with the licensing and renewal of licenses for these projects in the state. At the same time, the Federal Government has encouraged coal-fired thermoelectric projects through energy auctions authorized by ANEEL. CRM, responsible for the Candiota coal mine, and CGT Eletrosul, responsible for the Candiota III Thermoelectric Plant - the most polluting and least efficient plant in the country - have been operating in disregard of environmental climate laws. It is argued that it is up to the Judiciary, based on the principle of the prohibition of regression and duties of protection, to guarantee effective compliance with the rules in question and prevent the climate scenario from worsening. It is argued that the entire situation of alleged unlawfulness gives rise to a claim for compensation for collective moral damages. The plaintiffs make several requests for injunctive relief for the various defendants, so that the defendants' conduct is brought into line with the environmental climate standards. On the merits, it is requested that (i) the requests for preliminary injunctions be confirmed; (ii) it be declared that in the period from 2009 to 2023, the Federal Government, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with climate standards and did not meet the deadlines and targets set out in the PNMC, the Paris Agreement and the PGMC, because they did not give effect to the regulations and did not act to reduce GHG emissions from coal-fired thermoelectric plants in the state; (iii) to declare that Rio Grande do Sul has failed to meet the targets and deadlines set out in international, national and state regulations; (iv) the suspension of public incentives to exploit coal in the state, the implementation of a TEJ plan for the contested plants; the publication of public notices to finance educational projects and research projects with universities and federal institutes that encourage environmental awareness and the guidelines of the PNMC and PGM; the creation of a WG for the decommissioning and energy transition of coal-fired projects; the suspension and non-renewal of energy sales contracts for the contested plants; (v) ordering the defendants to pay compensation for climate damage; (vi) ordering the Federal Government and the state of Rio Grande do Sul to bear the costs of the requests made; (vii) ordering all the defendants to pay the sum of ten million reais as collective moral damage in environmental and climate matters. The request for injunctive relief was rejected by the judge, which ruled that the analysis of the claims would require a more in-depth hearing. The judge argued that the plaintiffs' claims were too broad and had high economic, political and social impacts. In addition, he argued that the effects of climate change are recognized by the international community, that the process of adaptation by countries is slower than desirable, and could cause irreversible damage to the environment and future generations. CRM defended that all its activities are in line with environmental legislation and that, in accordance with current regulations, it is already drawing up a mine closure plan. In September 2023, the defendants filed their defenses, claiming that the activities were in line with environmental legislation. CRM claimed that it had already drawn up a mine closure plan. ANEEL pointed out that the participation of non-renewable sources in energy auctions is not the result of ANEEL's discretionary choice, but rather of compliance with the guidelines established by the Ministry of Mines and Energy and that the agency does not have a licensing function. It claimed that Rio Grande do Sul has 80% of its energy matrix made up of renewable energies and that the forecast for the expansion of energy supply in the state does not include an increase in fossil sources. The state of Rio Grande do Sul argued that it complies with current federal and state regulations, that the causes of climate change are global and that there is no causal link between the state's conduct and the damage alleged in the lawsuit. IBAMA argued that there is a lack of rules on the mitigation and reduction of GHG emissions; that decisions on the reduction of GHG emissions and the need to replace the national energy matrix are made by technical bodies and it is not up to the Judiciary to intervene; that the causes of air pollution are diffuse and that there is no proof of damage caused by IBAMA. The Union highlighted the lack of sectoral sub-national targets for reducing GHG emissions in Brazilian legislation and the absence of a causal link that could connect the Union to the environmental damage referred to in the initial petition, whether by action or omission. Eletrobras CGT Eletrosul claimed that the licensing of the Candiota III TPP regularly took place, that climate factors were taken into account in the procedure; that its operation complies with the GHG emission parameters established in the licensing; and that the plant is not the most polluting in the country. It argued that the Paris Agreement, the PNMC and the Gaucho Policy on Climate Change are general and programmatic norms, which do not generate obligations; and that there is no specific legal provision that substantiates climate environmental licensing. It also pointed out that the country has a scenario for reducing GHG emissions from thermoelectric power plants. It argued that the damage allegedly caused by the plant's operation had not been proven in the initial petition.