Rio de Janeiro

Brazil

Roraima

Espírito Santo

Rio Grande do Sul

Goiás

Santa Catarina

Maranhão

Sergipe

Minas Gerais

São Paulo

Mato Grosso do Sul

Tocantins

Mato Grosso

Pará

Acre

Paraíba

Alagoas

Pernambuco

Amazonas

Piauí

Amapá

Paraná

Bahia

Ceará

Rio Grande do Norte

Distrito Federal

Rondônia

On October 28, 2022, the NGO, Instituto Internacional Arayara filed a Public Civil Action (environmental class-action) against the National Environmental Agency (Brazilian Institute of the Environment and Renewable Natural Resources – IBAMA), the Federal Union, the Rio de Janeiro&#39;s State Environmental Agency (INEA), the State of Rio de Janeiro, and the companies EDF Norte Fluminense SA - Usina Termelétrica Norte Fluminense SA, Global Participações em Energia SA, Usina Termelétrica Nossa Senhora de Fátima and Litos Energia Ltda. The plaintiff seeks the annulment of the previous environmental licenses issued by IBAMA for thermoelectric projects located in the municipality of Macaé, in the state of Rio de Janeiro. It also seeks the annulment of the (i) water resources use right grants and (ii) Water Availability Reserve Certificates referring to the Macaé and Ostras River Hydrographic Basin, granted by INEA for the same projects. The plaintiff institution argues that the installation of a thermoelectric complex in the region, consisting of eighteen enterprises, is contrary to the need for investment in a clean energy matrix and the fight against climate change. It argues that there should be a determination that licensing agencies require, prior to issuing licenses: (i) a Strategic Environmental Assessment (AAE) for the analysis of synergistic and cumulative impacts of enterprises to be installed in the same hydrographic basin; (ii) the updating of the plan of the Hydrographic Basin of the Macaé and Ostras River and the study of water availability of the Basin; and (iii) the presentation of a Climate Diagnosis, with an inventory of Greenhouse Gas (GHG) emissions by the enterprises. The plaintiff argues that the failure to conduct AAE prior to the issuance of the licenses invalidates the administrative procedures already carried out, since it was not possible to investigate the various cumulative impacts of the activities to be licensed. It is emphasized that emissions of pollutants by thermoelectric plants contribute to air pollution, damage to human health, and loss of agricultural productivity. From the climatic point of view, it is argued that in order to maintain the limit of planetary temperature increase at 1.5°C, to fulfill the commitments made in the Paris Agreement, COP 26 and NDCs, the installation of new enterprises that use fossil fuels cannot be allowed. The plaintiff highlights the consolidation of jurisprudence favorable to environmental and climate issues at the Supreme Federal Court, exemplified by the judgment of ADPF 708 (Climate Fund), which recognizes that current Brazilian measures to address climate change are in disagreement with its international commitments. The plaintiff requests, as a preliminary injunction the suspension of the environmental licensing processes of the plants until the defects in the Environmental Impact Studies (EIA/RIMAs) and the defects related to atmospheric dispersions are remedied, including, among others (i) the determination that the Climate Diagnosis be presented and considered for the analysis of the environmental licensing processes, (ii) IBAMA be ordered to include the guidelines set forth in the National Policy on Climate Change (PNMC), the guidelines of the Rio de Janeiro State Policy on Climate Change, and the preparation of an AAE in the terms of reference of the licensing processes for the power plants and (iii) the companies be ordered to refrain from construction work and activities at the thermoelectric complex until the AAE, basin plan update, hydric availability study, and other studies required in the lawsuit have been conducted. In the final stage, it is requested that the preliminary injunction be confirmed, reiterating the requests, with the inclusion of the requirements for the annulment of the environmental licensing processes, licenses and permits already granted by the environmental agencies. IBAMA, the Federal Government, Litos Energia Ltda, Usina Termelétrica Norte Fluminense SA, the State of Rio de Janeiro, INEA and Global Participações filed responses. In relation to climate aspects, IBAMA argued that the terms of reference used for the licensing of the project included the need for a synergistic assessment of atmospheric gas emissions from existing plants and those to be implemented. 

On March 25, 2022, the Federal Public Prosecutor’s Office (Minstério Público Federal - MPF) filed a Public Civil Action (environmental class action) against the Rio de Janeiro’s State Environmental Agency (Instituto Estadual do Meio Ambiente – INEA), and the company Karpowership Brasil Energia Ltda. due to alleged irregularities in the environmental licensing process of 36 temporary towers for power transmission lines in Sepetiba Bay, Rio de Janeiro. The plaintiff informs that INEA, when granting the Integrated environmental license disregarded the synergistic and cumulative impacts with the request for a license to install and operate four floating Thermoelectric Plants in the same region, which are part of the same project. It argues that both the temporary towers for power transmission lines and the floating Thermoelectric Plants should be analyzed together and that there was an absence of an Environmental Impact Study/Environmental Impact Report (EIA/RIMA) and of a public hearing with the participation of the local community. The MPF points out that thermoelectric enterprises are generators of Greenhouse Gas (GHG) pollution. For this reason, INEA should require prior studies to assess the contribution of the project to climate change, taking into account the objectives of the National Policy on Climate Change - PNMC (Federal Law 12.189/2009) and the goals assumed by Brazil in the Paris Agreement.It raises the special protection of the Atlantic Forest biome (under Federal Law 11.428/2006) when it comes to suppression of vegetation. The MPF bases its claim on the duty of the Public Authorities to defend and preserve the ecologically balanced environment provided for in article 225 of the Federal Constitution. 

Among other measures, the plaintiff requests the preliminary suspension of the license and, definitively, the: (i) declaration of its nullity; (ii) evaluation of the project considering its contribution to climate change, so as to ensure that emissions are mitigated; (iii) determination that INEA abstain from granting licenses without conducting an EIA; (iv) determination that INEA considers, after the presentation of the EIA/RIMA, the global analysis of the licensing, considering the cumulative and synergistic effects of the projects; (v) determination that the defendants to recover the already deforested areas and the existing environmental liabilities; and (vi) determination that the defendants compensate for the damages caused, considering their material and extra-patrimonial nature, including collective moral damages.

On September 25, 2022, the judge dismissed the case without resolution of the merits, on procedural grounds. It emphasized that the case should be dismissed on the grounds of (i) lack of standing to sue on the part of the Federal Public Prosecutor's Office (MPF); (ii) absolute lack of jurisdiction of the court; and (iii) lack of interest in suing on the grounds of inadequacy of the chosen legal avenue.

On August 12, 2013, ABRAGET filed a claim with a request for an injunction against the State of Rio de Janeiro. The plaintiff challenges State Decree 41,318/2008, which establishes the Energy Compensation Mechanism (ECM) as part of the Greenhouse Gas Emission Abatement Plan, in order to combat global warming and strengthen the energy supply in the State. 

The decree imposes conditions for obtaining environmental permitting aimed specifically at companies in the energy sector based on fossil fuels, at the state level. The plaintiff states that the planned changes would demand high financial costs, excessively burdening the associated plants. It alleges a breach of the federal government's competence to legislate on electric energy. It further argues that the decree is unconstitutional due to a lack of a previous law to be regulated. It also adds a request for suspension of the effectiveness of the decree. This is based on the National Policy on Climate Change - PNMC (Federal Law 12.187/2009), which, as argued by the plaintiffs, supervened the decree, emphasizing that the national law does not establish any compensation for the energy sector. It clarifies that Brazil has internalized the United Nations Framework Convention on Climate Change - UNFCCC (enacted by Decree 2652/1998), but has made a reservation regarding Annex I, so that it is outside the goals of reducing greenhouse gas emissions. ABRAGET argues that the mitigation commitment provided for in the PNMC is voluntary, and not linked to the environmental permitting process. It requests (i) the granting of anticipation of the effects to suspend the effects of the decree and (i) at the end, the judicial determination for the State of Rio de Janeiro to refrain from enforcing Decree 41.318/2008. 

In response, the defendant State pointed out on November 29, 2013 that the energy compensation mechanism was edited to mitigate and compensate for the scientifically unequivocal adverse environmental effects of energy production. It emphasized the common competence of the federative entities for the adoption of environmental protective measures, and that the member state observed the precautionary principle. The state argued that as thermoelectric plants are more polluting, the discrimination adopted by the State is in accordance with the reality of the facts, and the measure is proportional. The state argued that the decree was not incompatible with the PNMC. Finally, among other issues, it defended the legality and constitutionality of the decree and requested the dismissal of the plaintiff's request. 

On March 6, 2015, the trial court dismissed the plaintiff's request, emphasizing that the judiciary, when carrying out control of public policies, must honor the purposes of the state, given that the decree contributes to the intergenerational maintenance of a healthy environment. The plaintiff appealed reaffirming the points of the initial petition and requested the annulment of the decision. On February 7, 2017, the appellate court considered the evidence of decree's unconstitutionality to be strong, raising an incident of unconstitutionality to be resolved before the Court's Special Body. 

On September 12, 2017, within the scope of the claim of unconstitutionality, the Court's Special Body decided for the validity of the decree, emphasizing, among other issues, that it is an activity inherent to the environmental administrative function with a view to materializing protective measures for the environment. After the decision, the plaintiff stated that the discussion on the application of the decree to ABRAGET's associates remained. A decision was handed down stating that the appellant's claim - to determine the non-application of Decree 41.318/08 to its associates - is generic, not being possible to fulfill the request. In addition, the court stated that any assessment of the improper application of conditions to the contracts in force should be carried out in a separate action. Therefore, the author's appeal was dismissed. 

Subsequently, ABRAGET filed an Extraordinary Appeal, which was held inadmissible. The plaintiff filed an appeal to the Federal Supreme Court (STF). On August 7, 2018, within the scope of the Extraordinary Appeal (ARE 1.317.221/RJ), the Justice, in a monocratic decision, held that the Court has consolidated jurisprudence on the concurrent competence between the federated entities to legislate on environmental protection. Since it would be necessary to go through the factual-evidence review and the interpretation of local legislation to verify that the decree refers to environmental protection standards, and not electricity, it could not hear the case. 

The plaintiffs further filed an Interlocutory Appeal, which was denied by the 2nd Panel of the Court. The judgment became final and the case file was discharged

Rio de Janeiro

Recent cases