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Litigation

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judgment

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - judgment

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - Other

petition

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - petition

Filing Year For Action

This is a State Direct Action of Unconstitutionality, with a request for a precautionary measure, filed by the Public Prosecutor's Office of the State of Rondônia (MPRO) due to the publication of state Complementary Law (LC) 1.089/2021, initiated by the State Governor, questioning in particular: (i) art. 1º, caput, and its paragraphs 1º and 2º; (ii) art. 2º, caput and paragraphs 1º and 2º; (iii) art. 15, caput and sole paragraph; (iv) art. 17, caput and its items; and (v) Annexes I, II, V, VI, VII and VIII. The author points out that the LC reduces the area of the Jaci-Paraná Extractive Reserve and the Guajará-Mirim State Park and, as compensation, creates the Ilha das Flores and Abaitará State Parks, the Bom Jardim and Limoeiro Sustainable Development Reserves and the Pau D'Óleo Fauna Reserve. In addition, the LC allows the environmental regularization of the property or possession of the owners or possessors in the disused areas of the Extractive Reserve and the State Park. It states that these Conservation Units (UCs) are illegally occupied and deforestation occurs to the detriment of the rights of traditional populations (extractivists and others), being used mainly for livestock farming. The removal of these areas directly impacts the Uru-eu-wau-wau, Karipuna, Igarapé Lage, Igarapé Ribeirão, Karitina Indigenous Lands and the peoples in voluntary isolation in the surrounding region. 

It argues that the reduction in Conservation Units, by harming environmental protection and contradicting the purpose for which the UCs were created, violates the right to an ecologically balanced environment and the duty of the public authorities and the community to defend and preserve it for present and future generations. It points out that the creation of new protected areas by the LC is insufficient and is an environmental step backwards. In addition, it argues that no hearings were held with the communities affected during the project that resulted in the LC and that no technical studies were carried out to remove the areas, which violates the principles of prevention and precaution. It argues that the precautionary measure should be granted because there is a risk of irreversible environmental damage and an imminent risk to the lives of indigenous peoples and traditional populations. It emphasizes that the Jaci-Paraná Extractive Reserve is already the 2nd most deforested in the Legal Amazon, while the Guajará-Mirim State Park is the 9th most deforested. Finally, it requests, among other things: (i) an injunction suspending the effectiveness of the provisions in question; and (ii) on the merits, a declaration that the provisions are unconstitutional, with the decision to be communicated to the Legislative Assembly to suspend their implementation.


In a monocratic decision, the Reporting Judge, José Jorge Ribeiro da Luz, decided that the Court should rule only the merits of the action, because, since the precautionary measure in the ADI must be granted by an absolute majority of the members of the Court, the time for both would end up being the same. In the same decision, he granted the request for admission as amicus curiae of the Minas Novas Rural Producers Association (ASPRUMIN).


Subsequently, the request for admission as amicus curiae of the Association for Ethno-Environmental Defense (KANINDÉ), the Organization of Indigenous Peoples of the Guarajá-Mirim Region (Oro Wari), Ecoporé Ecological Action (ECOPORÉ), the SOS Amazon Association (SOS Amazônia) and the World Wildlife Fund (WWF-Brazil) was granted. It is noteworthy that, in their amicus curiae briefs, the organizations, in defending the unconstitutionality of LC 1.089/21, pointed out that the rule represents damage to biodiversity, to local traditional and indigenous populations and to climate stability by summarily acquitting environmental offenders who have occupied and degraded protected areas, receiving the seal of approval from the Government. They highlighted the violation of the principles of prevention and precaution, set out in the National Environmental Policy - PNMA (Federal Law 6.938/1981) and the National Policy on Climate Change - PNMC (Federal Law 12.187/2009), as well as the violation of the right to prior, free and informed consultation of affected indigenous and traditional peoples, in accordance with Convention 169 of the International Labor Organization (ILO). They argued that the reduction of UCs results in climate damage, violating the right to climate stability provided for in art. 225 of the Federal Constitution and also argued that there is a failure by the Government to implement the PNMC and the State Policy on Climate Governance and Environmental Services - PGSA (State Law 4.437/2018).

A ruling was rendered, in line with the vote of the Reporting Judge, who, by a majority, declared the unconstitutionality of the contested provisions, as well as recognizing the unconstitutionality of LC 1.096/2021, which amends the wording of §1 of art. 2 of LC 1.089/2021. It concluded that there were no prior studies for the disqualification of the Units of Conservation, in violation of the precautionary principle, the principle of prevention and the prohibition of environmental retrogression. He stressed that it is the duty of the Government to protect the environment, and that the justification for anthropization and degradation in the areas is flawed. It also considered that the principles of ubiquity and intergenerational solidarity had been violated. It is worth highlighting the vote of Judge Miguel Monico Neto, who, although also recognizing the unconstitutionality of the rules, was defeated in the part where he stressed the need for a structuring measure due to the abuse of the legislative institutional function of the State Governor and the Legislative Assembly. The judge emphasized the importance of the UCs for protection against the climate emergency and argued that the environmental impacts resulting from new agricultural projects in the area, if the reduction in protected areas were to be implemented, would represent a threat to the environment, water security, the safety of the climate system, soil fertility, atmospheric air, fauna and flora, the health and lives of present and future generations, as well as the sustainability of agriculture and livestock and the export of state and Brazilian products.

An interlocutory appeal (ARE 1417998) was filed against the decision to reject the extraordinary appeal, which was denied admissibility due to the lack of pre questioning and the need to discuss factual matters. The Minas Novas Rural Producers' Association (Asprumin) was admitted as amicus curiae in the ARE. Subsequently, an interlocutory appeal was filed in the ARE, which was not upheld on the same grounds as the contested decision.

The appeals were unsuccessful and, as a result, the lawsuit was dismissed.

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park)

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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

A loan is a policy instrument where funds are provided to a borrower with the expectation of repaying the principal plus interest.

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

Financial actors and resources that are primarily directed towards climate change mitigation, adaptation and compensation.

Dedicated pool of financial resources for climate-related projects.

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

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

Actions or measures to adapt terrestrial systems to climate change.

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

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.

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

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.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

People with different national or cultural traditions from the dominant population

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

Jobs that contribute to preserving or restoring the environment. We include jobs which require a high amount of green skills or which spend much of their time on green activities, as well as jobs transforming polluting industries.

Households employing domestic workers, for activities like cooking, cleaning and subsistence farming, for their own use.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

This sector involves the wholesale and retail selling of goods.

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

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

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

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

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

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

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.

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.

State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) - Other

Policy instrument

Risk

Impacted group

Just transition

Greenhouse gas

Economic sector

Adaptation/resilience

Finance