Case Name: BRASILCOM vs. Ministro de Minas e Energia (Writ of Mandamus and CBios)

Summary

This is a Collective Writ of Mandamus (MSCol), with a request for preliminary injunction, filed by the Association of Fuel Distributors (BRASILCOM). The Association challenges the mandatory annual target for reducing Greenhouse Gas (GHG) emissions by fuel distributors for the year 2020, an act whose respondent authority is the Minister of Mines and Energy, in his capacity as President of the National Council for Energy Policy (CNPE), the target having been disclosed through CNPE Resolution 8/2020 and individualized for companies through Dispatch 797/2020 of the National Agency of Petroleum, Natural Gas and Biofuels (ANP). The updated annual target, reduced by 50% due to the COVID-19 pandemic, was released by the CNPE on September 10, 2020, and individualized for distribution companies on September 25, 2020, to be met by December 31, 2020. The mandatory annual target for reducing GHG emissions is an instrument of the National Biofuels Policy - RenovaBio (Federal Law 13.576/2017), created to meet the goals of the Paris Agreement (promulgated by Federal Decree 9.073/2017) and aims to promote greater participation of biofuels in the national energy matrix by encouraging energy generation from renewable sources. In order to meet the established annual target, fossil fuel distributors must purchase Biofuel Decarbonization Credits (CBios) in the financial market. The petitioner alleges that the 2020 target is illegal, since, from the publication of the new annual target, distribution companies would only have 3 months to meet it, arguing that its volume would not be proportional to the time needed to acquire the CBios. It argues that the quantity of CBios available on the market is insufficient to meet the annual target, that the increased demand for the asset has led to an overvaluation of its price, and that if fuel distributors fail to meet the target, they will be subject to penalties including suspension of their activities, potentially causing a collapse of the national fuel distribution system. Finally, the petitioner requests (i) the granting of a preliminary injunction ordering the CNPE to reduce the new mandatory annual target for distributors for the year 2020, proportionally to the time available for acquiring CBios, and (ii) on the merits, the granting of the injunction definitively, confirming the preliminary injunction.

The Minister of Mines and Energy responded by arguing that the Superior Court of Justice (STJ) lacked absolute jurisdiction, since the National Energy Policy Council (CNPE) has merely proactive competence, directed at advising the President of the Republic, and the impugned act was effectively carried out by the President. He argued that there was no illegality, disproportionality, or unreasonableness in relation to the 2020 annual target. He alleged that there was no delay in the publication of the annual targets, added that there are sufficient CBios (Brazilian Biofuel Certificates) on the market and time for their acquisition, and that the petitioner intends to claim an alleged right to pollute more, thus affronting public order, health, and the economy. He stated that granting the preliminary injunction interferes (i) with the fulfillment of international commitments to reduce carbon emissions to which Brazil is an integral part, such as the Paris Agreement, (ii) negatively impacting the population's quality of life, given the reduction in the quality of the environment in which they live, and (iii) impacting the economic model created for the implementation of Renovabio instruments and the Federal Government's own revenue estimates. Finally, he requested recognition of the absolute lack of jurisdiction of the Superior Court of Justice (STJ), as this is a writ of mandamus seeking to challenge an act of the President of the Republic, and also requested that the preliminary injunction and the security sought not be granted.

A single-judge decision was issued denying the preliminary injunction request, as the mandatory annual targets had been known since March 2020 and no illegality or disproportionality was found in the disclosure of the target reduction. Subsequently, the Reporting Justice issued a decision denying the injunction, recognizing the lack of jurisdiction of the Superior Court of Justice (STJ) to process and judge a writ of mandamus against an act of a collegiate body presided over by a Minister of State (STJ Precedent 177) and recognizing the lack of standing of the respondent authority. BRASILCOM filed an internal appeal against the decision, which was denied by the Justices of the First Section. Thus, the lack of jurisdiction of the Superior Court of Justice to analyze the claim was confirmed.

In November 2022, the case was definitively closed.

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Main norms mobilized

• Article 5th of the Federal Constitution (CRFB/88)
• Federal Constitution (CRFB/88)
• National Biofuels Policy Act - RenovaBio (Federal Law 13.576/2017)
• Paris Agreement (Federal Decree 9.073/2017)

Case timeline

Case documents