Prosecutor’s Office of the State of Goiás v. State of Goiás (State public policy on air quality control)

This is a Public Civil Action, with a request for an injunction, brought by the Public Prosecutor's Office of the State of Goiás (MPGO) against the state of Goiás. It seeks to compel the state to take the necessary measures to improve air quality and, consequently, safeguard the health of the population by implementing a public environmental policy for monitoring and controlling air pollution and climate change. The plaintiff claims that the regional government has failed to comply with public environmental control policies aimed at protecting air quality and the climate. It stresses the state's repeated inertia in combating climate change, controlling air pollution and monitoring vehicle pollution, evidenced by the lack of technical actions, such as implementing a network of air quality monitoring stations, carrying out an inventory of greenhouse gas (GHG) emissions and mobile sources, as well as implementing Vehicle Inspection and Maintenance Programs. The Public Prosecution highlights the omission in the analysis of climate impacts in environmental licensing procedures in the state, claims that, in line with the National Policy on Climate Change - PNMC (Federal Law 12.187/2009), the State Policy on Climate Change - PEMC (State Law 16.497/2009) was instituted, but few public policies have been implemented. It also points out the lack of implementation of instruments to prevent atmospheric pollution and climate change, especially the Atmospheric Emissions Control Plan (PCEA) and the Vehicle Pollution Control Plan (PCPV). It highlights the inadequacy of the PCPV in the state of Goiás. It outlines the risks of damage to human health and the environment caused by air pollution and noise pollution. It links air pollution caused by the burning of fossil fuels to the climate crisis. It requests, as an injunction, that the State of Goiás be ordered to adopt measures aimed at implementing Conama Resolutions 01/1993, 02/1993, 418/2009 and 491/2018, Federal Laws 8.723/1993, 9.503/1997 and 12.187/2009, the Paris Agreement (enacted by Federal Decree 9.073/2017) and State Law 16.497/2009. On the merits, it requests that the State of Goiás be ordered, among other measures: (i) to implement public environmental policies to control pollution and combat climate change, by drawing up the PCEA, including a network to monitor air quality throughout the state, from both mobile and stationary sources of gas emissions; (ii) to implement a network to monitor air quality throughout the state;(iii) to update the PCPV; (iv) to draw up, implement and carry out the Vehicle Inspection and Maintenance Program (I/M) and the annual Environmental Vehicle Inspection Program for gas and noise emissions in motor vehicles; (v) to define and publish Administrative Regulations establishing (v.1) activities with significant GHG emissions for the purposes of environmental licensing and the requirement to submit a GHG Emission Inventory, (v.2) Term of Reference (TR) criteria for drawing up the Inventory and (v.3 ) technical criteria and standards for assessing environmental impacts on the micro and macroclimate in environmental licensing procedures in the state, as well as GHG mitigation and compensation instruments; (vi) to prove that all environmental licensing procedures in progress that have an Environmental Impact Study and respective Environmental Impact Report (EIA/RIMA) require an inventory of GHG emissions, as well as the obligation to present an assessment of environmental impacts on the micro and macroclimate in the TRs; and (vii) to draw up a State Inventory of GHG Emissions. In response to the request for injunctive relief, the judge granted the preliminary injunction, ordering the immediate implementation of the violated normative provisions, considering that the failure of the government to comply with its legal and constitutional obligations would be enough to prove fumus boni juris, while the danger of damage would be characterized by the risk to collective health. In contrast, the state of Goiás filed an interlocutory appeal with suspensive effect, asking for the injunction to be overturned, indicating, in short, (i) the absolute nullity of the decision, since the federal court would be competent to deal with the case, and (ii) the lack of the necessary requirements for granting urgent relief. In addition, the state of Goiás filed an opposition. The state argued that only the Executive Branch can determine the form and condition of implementation of environmental public policies, considering the financial resources available. It argued that the Public Prosecutor uses the judicial process to request the implementation of public policies, which is not the appropriate way and interferes with the principle of separation of Powers. It requested, among other things, a preliminary ruling: (i) a declaration of the court's lack of jurisdiction, since the subject matter of the lawsuit deals with the administrative competence of the Federal Union and the municipalities; (ii) the calling to account of the State Traffic Department (Detran/GO), the Goiás Infrastructure and Transport Agency (Goinfra), the Federal Union and the municipalities of Goiás; (iii) the suspension of the dispute for 365 days so that the parties can begin negotiations to establish objective parameters for the implementation of public policies; and (ii) the creation of a Working Group with professionals with knowledge in the areas subject to regulation. On the merits, among other issues, it requested that the injunction be dismissed and that the plaintiff's claims be declared unfounded. In the alternative, it asked that the limits on the reviewability of administrative acts by the Judiciary, the separation of powers and the federal pact be respected. In the context of the interlocutory appeal 5245769-11.2022.8.09.0051, the Court of Justice issued a ruling in which it partially accepted the appeal filed by the state of Goiás. It held that it was not possible for the Court to examine the preliminary thesis of absolute incompetence of the Common State Court, as it had not been examined by the previous court. On the merits, it considered that the requirements for granting the injunction requested by the Public Prosecutor's Office had been met. He stressed that the installation of systems to control noise and air pollution emitted by motor vehicles in the state of Goiás has a normative basis for compliance, and recognized that they had not been effectively implemented, resulting in a violation of the constitutional duty to protect the environment. He stated that the aggravated decision merely ordered the appellant to comply with environmental laws. It held that the state had sufficient time to implement public policies, such as those aimed at monitoring and controlling air pollution and climate change and controlling noise pollution, which constituted an omission. It therefore dismissed the appeal.