decision

Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) - decision

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Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) - petition

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Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) - judgment

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Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) - opinion

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Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) - reply

Filing Year For Action

On January 22, 2024, Observatório do Clima has filed a Public Civil Action (ACP) against the federal environmental agency IBAMA and the National Department of Infrastructure and Transport (DNIT), seeking the annulment of the Preliminary License for the reconstruction and paving of the “middle section” of the BR-319 highway. The plaintiff claims that paving the BR-319 would open new fronts for deforestation and land occupation in the Amazon. It says that in 2005, IBAMA began the licensing process for the paving of the middle section of the BR-319 highway, during which the environmental agency showed great concern about the increase in deforestation around the highway, the threat to biodiversity, and the potential for the grabbing of public land in the Amazon. However, according to Observatório do Clima, IBAMA's issuance of Preliminary License (LP) 672/2022 did not consider the environmental agency's previous concerns. It claims that the license was granted (i) without a climate impact study; (ii) without prior consultation with the traditional communities that the project would impact; (iii) despite the lack of minimum environmental governance to deal with the complexity of the environmental consequences of the project; and (iv) contrary to the guidelines of a Working Group formed by environmental agencies and an Inter Ministerial Committee, which indicated the need to adopt a series of measures associated with environmental governance before issuing the preliminary license. It highlights the importance of the Amazon rainforest for climate balance. It points out that deforestation in the biome would increase carbon dioxide emissions, exacerbate climate change, and that the absence of Free, Prior, and Informed Consultation would infringe on the rights of indigenous peoples. Observatório do Clima argues that the Brazilian legal system requires environmental licensing to assess the climate variable and failure to do so would render the preliminary license granted null and void. Based on the above, it requests a preliminary injunction to suspend the effectiveness of LP 672/2022, the reversal of the burden of proof, and, at the end of the trial, the annulment of the preliminary license, as well as any administrative acts arising from it. On May 16, 2024, DNIT presented its defense, arguing that it had no legal standing and that the chosen procedure was inappropriate, and requested that the injunction be rejected. It argued for the presumption of legitimacy of administrative acts and the impossibility of judicial interference in administrative merit under penalty of violating the principle of separation of powers. It argued that it could not guarantee the socio-environmental measures needed around the BR-319 project, which are the responsibility of environmental, indigenous, land, and other bodies and agencies. Thus, it stated that environmental licensing could not make up for the lack of structure of the various bodies and authorities involved in environmental inspection policies and the prevention and control of deforestation in the Amazon. As for the request for a climate impact study, it argued that such an impact would derive from the possible increase in illegal deforestation generated by insufficient environmental governance in the areas close to the highway and would not be related to the technological solution applied to the project. It claimed that there had been prior consultation with indigenous peoples. In this way, it argued that it had complied with the environmental licensing process determined by IBAMA.  On May 17, 2024, IBAMA presented its defense, arguing the presumption of legitimacy of administrative acts and the impossibility of judicial review. It argued that DNIT, the project's proponent, lacked the administrative competence to carry out environmental policy measures, especially in the context of licensing. As for carrying out a climate impact study, it mentioned that the technical analyses assessed the issues directly related to the subject, such as deforestation, changes in land use, and adapting the project to climate events, and that the EIA/RIMA contained data for defining measures to control and mitigate these impacts. It argued that halting the licensing process would imply additional costs in preparing new assessments and studies and that there was no risk of damage to the useful outcome of the process, among other allegations. 

On July 24, 2024, an injunction was issued in favor of the plaintiff's claims. The decision stated that the presumption of legality of administrative acts is relative and that the judiciary can control their constitutionality and legality. It questioned the validity of the preliminary license given the potentially severe environmental damage, such as deforestation, loss of biodiversity, damage to the climate system, and impacts on indigenous and traditional communities, among others. In this sense, the judge stated that a balanced environment is a human right and essential for the enjoyment of other rights, such as life and health, and that the judiciary is responsible for guaranteeing its protection against harm. The decision recognized that the case aims to ensure that the licensing process is carried out responsibly and adequately, guided by the technique and the best science applicable to control risks and damages, to allow the BR-319 project to coexist without undermining the duty to protect the Amazon rainforest. To this end, the lawsuit seeks compliance with the legal procedures for conducting technical studies, including climate impact studies and prior consultation with indigenous peoples and traditional communities. The decision stated that environmental licensing must include a climate diagnosis to establish adequate and proportionate mitigation and compensation measures under Brazilian legislation and international commitments. It affirmed the importance of the dimensions of climate mitigation and adaptation. It considered that the insufficiency of public policies and the lack of adequate state structures to prevent the rehabilitation of the BR-319 highway from destroying the Amazon rainforest had been demonstrated, ruling that the project was environmentally unfeasible. It, therefore, granted the request for the immediate suspension of the preliminary license.

IBAMA, the Federal Union, and DNIT appealed the decision, and after a series of diverging decision, the Court of Appeals maintained the original decision granting the injunction.

Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319)

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

People with different national or cultural traditions from the dominant population

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Using laws and the legal system more broadly to protect vulnerable entities

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Activities that relate to the production of goods and services from forests.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector involves activities to move goods and people, alongside the storage of products.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) - decision

Target

Policy instrument

Risk

Impacted group

Just transition

Greenhouse gas

Economic sector

Adaptation/resilience

Finance