ONG Costa Legal and others vs. Municipality of Florianópolis and others

On May 19, 2021, three NGOs, ONG Costa Legal, UFECO and Associação Pachamama filed an Public Civil Action (environmental class-action) seeking structural measures to protect the Conceição Lagoon, located in Florianópolis, Santa Catarina. Later, the Federal Public Prosecutor's Office (MPF), the Public Prosecutor's Office of the State of Santa Catarina (MPSC) and the Associação Nacional dos Atingidos por Barragens (ANAB) joined the plaintiffs. The environmental class-action was filed against the Municipality of Florianópolis; the Municipal Environment Foundation (FLORAM); the State of Santa Catarina; the Santa Catarina Environmental Institute (IMA/SC); the Santa Catarina Water and Sanitation Company (CASAN); and the Santa Catarina Public Services Regulation Agency (ARESC). The lawsuit seeks the implementation of a socio-ecological governance system for the protection, control, monitoring and inspection of the ecological integrity of the Conceição Lagoon. The plaintiffs present the Conceição Lagoon as the subject of ecological rights and claim that, due to the organized irresponsibility of the current institutional structure, there is an unconstitutional state of affairs. They point out that there is, in its surroundings, a complex mosaic of dunes, sandbanks and forests, part of the Atlantic Forest biome. They explain the importance of the ecosystem services provided by the lagoon, especially for a greater capacity to adapt to climate change of the surrounding ecosystems and communities, which are more vulnerable to the effects of global temperature increase. The plaintiffs emphasize the role of the Lagoon for the local socio-cultural history, highlighting the importance of water quality for the identity of the communities in the region. They claim that the risks of perishing and collapse of the Lagoon's ecosystem are evident and urgent, generating violations of fundamental rights. They allege structural problems related to ineffective governance by the responsible actors. They claim that the impacts of human activities on ecological systems threaten diverse forms of life and are a matter of ecological justice. Finally, the plaintiffs request, among other things the recognition of the active legitimacy of the associations to claim, besides the protection of the collective right to the environment, the protection of the rights of the Conceição Lagoon. They seek a declaration of the Lagoon as a natural entity with specific rights. Also, they request the recognition of a structural problem which requires the institution of a Judicial Chamber for the Protection of the Conceição Lagoon (CJ-PLC); and, based on its findings, the establishment of a Judicial Plan for the Protection of Conceição Lagoon (PJ-PLC). A preliminary injunction was granted, determining the creation of the CJ-PLC, with the purpose of advising the Court in the adoption of structural measures necessary to guarantee the ecological integrity of the Lagoon as a natural entity. The Chamber is to be composed by the defendants and interested parties. In addition, the decision welcomed the inclusion of the Federal Public Prosecutors' Office (MPF) and the Public Prosecutors' Office of Santa Catarina (MPSC) as plaintiffs. The decision was appealed, and the Court of Appeal conclude that the CJ-PLC is not equivalent to a state agency; it does not have decision-making power or the power to impose obligations on any party to the proceedings. It clarifies that the CJ-PLC does not enjoy the prerogative of using public resources and is merely consultative nature to to advise the Court on issues that have already been litigated. After a conciliation hearing between the parties, an order was handed down in April 2022, approving the definitive proposal for the composition of the CJ-PLC and its Internal Regulations. In October 2024, the court of first instance granted the requests for preliminary relief, ordering (i) the implementation of the Lagoa Viva Project to recover the Lagoa da Conceição ecosystem; (ii) the creation of a native seedling nursery as an emergency measure to restore the degraded areas around the lagoon; and (iii) immediate renewal of the Trato pela Lagoa Program so that CASAN, together with the other interested parties, can re-establish inspection, sanitary regularization and environmental awareness activities in the region, setting a deadline of 60 days for the implementation of the measures, under penalty of a fine of R$ 100. 000.00 to the defendants. According to the judge, this decision was based on the CJ-PLC's conclusion that the adoption of measures to mitigate the pollution of Lagoa da Conceição would be indispensable and urgent to prevent the environmental damage from becoming irreversible. The decision was challenged by means of an interlocutory appeal, which is awaiting judgment.