Instituto Preservar et. al. v. Copelmi Mineração Ltda. and IBAMA

In May 2021, four NGOs (AGAPAN, INGÁ, COONATERRA-BIONATUR and CEPPA) filed a request for precautionary measures against the Brazilian environmental agency, IBAMA, and Copelmi, a mining company, related to an open-pit coal mining project within the Nova Seival coal-fired power plant, which, if approved, will be the largest coal power plant in Brazil. The plaintiffs identified a series of irregularities in the permitting process, including: (i) inadequate public participation, (ii) the lack of analysis of the EIA by the environmental agency, and (iii) the risks and impacts caused by the project. The request was subsequently converted into a public civil action. The plaintiffs sought to suspend a public hearing and the permitting procedure until several material issues with the EIA are resolved. The Ministério Público, asked to opine on the case, specifically noted the need to undertake a strategic environmental assessment and asked for the assessment of climate change impacts in the general terms of reference for EIAs related to thermal power stations. On August 18, 2020, the Public Prosecutor's Office filed a statement on the case, requesting that: (i) the anticipation of relief claimed by the plaintiffs be granted, with subsequent annulment of the public hearing, (ii) the immediate suspension of the UTE's environmental licensing process Nova Seival until the defects pointed out by IBAMA are remedied, (iii) held at least three public hearings in the cities of Porto Alegre, Hulha Negra or Candiota, (iv) acknowledged the omissions present in the EIA/RIMA and (v) summoned IBAMA for the presentation of a merit analysis study and the EIA/RIMA, prepared by a multidisciplinary team. On August 31, 2021, the court partially granted the precautionary measures to (i) annul the public hearing previously held, (ii) suspend the permitting procedure of the Nova Seival coal-fired power plant until the irregularities in the EIA are addressed, (iii) hold at least three public hearings, and (iv) include specific requirements in the terms of reference of thermoelectric power plants in the state of Rio Grande do Sul related to climate change, the need for a strategic environmental evaluation, and potential risks to public health. The requirements to assess potential climate change damages are grounded in the National Policy of Climate Change and the State Law No. 13.594/2010 (state policy on climate change) in the terms of reference of permitting procedures of thermal power stations in the state of Rio Grande do Sul. On August 12, 2022, a judgment was handed down in which the court: (i) accepted the Union's preliminary illegitimacy of passive standing, as it understood that there was no claim directed at the entity; and (ii) dismissed Copelmi's preliminary illegitimacy of passive standing, understanding that the company is related to the project. On the merits, the court highlighted the climate issue, emphasizing the UN General Assembly's recognition of a clean, healthy, and sustainable environment as a universal human right, and various other jurisdictional positions on the climate emergency. Thus, it ratified the conclusions reached in the trial in which the injunction was granted. It held that there had been no effective participation by the affected populations in the environmental licensing procedure. It considered that participation should be allowed through transparent and accessible information. It emphasized the importance of measuring the synergistic and cumulative impacts resulting from the Nova Seival TPP and the Seival Mine, and that environmental licensing should not be split up. In this way, an effective analysis of the environmental impact is possible, including the climate impact. It highlighted the measures provided for in the Paris Agreement (enacted by Federal Decree 9.073/2017), the United Nations Framework Convention on Climate Change - UNFCCC (enacted by Federal Decree 2.652/1998), the PNMC, and the PGMC. It also considered that the environmental study presented did not provide for mitigation or compensation measures for GHG emissions, as provided for in IBAMA's Normative Instruction, nor did it analyze air quality standards. It emphasized that the principle of prevention applies, given that there is legal certainty of environmental damage with the installation and operation of the project. Regarding the strategic environmental assessment study, it considered necessary to carry it out based on the Rio Grande do Sul State Policy on Climate Change, which is the most beneficial and protective environmental standard. It highlighted the principle of the integrity of the climate system. Finally, it upheld the plaintiffs' claims and concluded that the environmental licensing of the UTE disagreed with the technical, regulatory, and legal standards of the case and with the commitments signed at the international level by Brazil, as it ignored transgenerational health and climate issues. AGAPAN, Instituto Gaúcho de Estudos Ambientais, Instituto Preservar, COONATERRA - Bionatur and CEPPA filed an appeal.