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Santa Catarina

This is a Public Civil Action (ACP) with a request for an injunction filed by the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) on October 30th, against the Municipality of Pitimbu and private individuals due to the irregular construction of eleven properties in a permanent preservation area (APP), located on the banks of the Acaú River and in a mangrove swamp. The plaintiff argued the aggravating factor of the lack of infrastructure in the properties, which dump waste and sewage into the mangroves and the river, causing pollution and degradation to the environment. In addition, the lawsuit points to the omission of the Municipality of Pitimbu, which has never tried to effectively prevent this problem and act to preserve and defend the environment. It alleges that the municipality is neglecting its responsibility to monitor and enforce compliance with environmental regulations in urban areas by ignoring the rampant exploitation in the region. It therefore requested, as an injunction, that the individual defendants refrain from building, renovating, expanding or carrying out any act that modifies the current state of their properties, as well as that the Municipality monitor compliance with the injunction. On the merits, it requested that the 11 properties be demolished and that the defendants be ordered to repair, correct or compensate for the environmental damage caused. 

At first, the injunction was granted. Subsequently, a sentence was handed down, recognizing that the properties are located in a place prohibited by environmental legislation on the banks of the river, encroaching on APP. It was also identified that the properties cause environmental pollution. However, the Court concluded that environmental protection was not the only value at stake, indicating that the occupation of the Acaú River was long-standing, and was made up mostly of low- to very low-income families. The Court considered that it could not grant the claim in full in order to avoid greater social damage - loss of housing. However, given the evident responsibility of the residents for the irregular occupation and the discharge of sewage into the river, it deemed appropriate to make the measures granted as a precautionary measure definitive, partially upholding the claim. 

IBAMA was dissatisfied with the ruling and filed an appeal claiming that the right to housing cannot be exercised in an absolute manner, but must respect the environmental rules that prevent construction in permanent preservation areas, such as a mangrove swamp. The Appeal was dismissed and IBAMA then filed a Special Appeal against the ruling. On May 9, 2019, a ruling was then handed down by the Brazilian High Court (STJ), in a Special Appeal, which upheld IBAMA's appeal. The ruling emphasized that the legislator conferred an absolute presumption of untouchability on permanent preservation areas. In addition, it drew attention to the fact that, with the ever-increasing impact of climate change on our planet, water crises are intensifying, so these protections are even more important, and illegal occupation or exploitation of springs and the banks of watercourses, lakes and lagoons cannot be allowed as if they were necessary sacrifices to solve the housing shortage. It stated that any private or state action, including judicial action, must take into account scientific knowledge about climate change and the risks associated with it, worrying about climate integrity. It also stated that, for those in need who had built strictly residential houses before IBAMA's notice, it will be up to the omission municipality to provide them with material support, including by means of "social rent" and priority in housing programs, but this duty is neither a condition nor an impediment to the immediate execution of the court order to remove the illegitimate constructions. In its ruling the omission and negligence of the Municipality of Pitimbu was also recognized, identifying its responsibility for joint and several liability and subsidiary enforcement.

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