Nome do Caso: Conectas Direitos Humanos vs. BNDES e BNDESPAR (Avaliação de riscos climáticos em investimentos públicos)

Resumo

This is a Public Civil Action (ACP), with a request for preliminary injunction, filed by Conectas Direitos Humanos against BNDES and BNDESPAR, with the aim of compelling the defendants to adopt transparency measures and present a plan to align their actions and investment policies with the goals of the Paris Agreement (promulgated by Federal Decree 9,073/2017) and the National Policy on Climate Change – PNMC (Federal Law 12,187/2009). The plaintiff argues that BNDES and BNDESPAR do not have rules or protocols to assess the impacts of their investments on the worsening of the climate crisis, violating articles 225 and 170 of the Federal Constitution and the PNMC, as well as the commitments assumed by Brazil within the scope of the Paris Agreement. It emphasizes that BNDESPAR must consider, in its investment decisions, the inequalities linked to socio-environmental and climate impacts. The author also presents a study that indicates the importance of BNDESPAR for the implementation of measures to mitigate and adapt to climate change in Brazil, demonstrating that the defendant maintains investments in carbon-intensive sectors. For these reasons, she requests, among other measures, that the defendants be ordered to (i) provide information on whether and how they consider climate risks and opportunities in their investment, divestment and reinvestment decisions, (ii) present a Plan aimed at reducing greenhouse gas emissions with governance guidelines, a framework of internal standards, investment policies and other instruments that are necessary to align BNDESPAR's performance with the goals of the Paris Agreement and the PNMC, (iii) install a Climate Situation Room and (iv) impose a daily fine in case of non-compliance. The court issued an interlocutory decision in which it denied the injunction. The plaintiff argued that the urgency requirement was not met, since the PNMC and the Paris Agreement have been public policies in place for years, and it was only in 2022 that the plaintiffs proposed to question the defendants' environmental policy. The plaintiff asserted that the BNDES system is transparently committed to the green economy. BNDES and BNDESPAR filed a defense. They claimed that the acts on granting credit and deinvestment are private and not administrative acts. Therefore, they do not have the authority to reassess the environmental licensing process for the projects they finance, only to require the adoption of best socio-environmental practices within the peculiarities of the activity. They argued that the BNDES system already has internal policies and structured procedures and conduct appropriate to address environmental, social and climate issues, including promoting the carbon market. They highlighted the development of the Social, Environmental and Climate Responsibility Policy - PRSAC, updated in 2022 and available on the website. The defendants reported that they adopt international and national protocols for best ESG and climate practices, such as the NDC Panel - a platform that shows the performance of the BNDES system in relation to Brazilian climate goals, including monitoring emissions from projects it supports. They asserted that the system has a pilot methodology for assessing climate risks of supported projects. They highlighted that, in 2022, the Greenhouse Gas (GHG) emissions of their administrative activities were measured, the GHG emissions financed were calculated and divestment processes were adopted in carbon-intensive companies and activities. They argued that they did not have the legitimacy to be a passive defendant, since the Supreme Federal Court established, in the judgment of ADPF 708 (Climate Fund), that it is the responsibility of the Union to implement public policies related to the climate issue. They alleged that a decision favorable to the ACP would create an obstacle to access to federal resources by interested parties not named as defendants and, therefore, the passive pole should be expanded to include them. The defendants argued that the plaintiff has no legal interest in the lawsuit, in addition to having made generic and impossible requests. They alleged that the deadline for filing requests related to the PNMC had already expired and that the initial requests disregard possible consequences on the economic activities carried out by the defendants. They argued that the Paris Agreement proposes that the treatment of climate issues by countries be conditional, voluntary and long-term and that Brazil already occupies a leading position in the fight against climate change. They pointed out that climate litigation would imply a violation of the separation of powers, as it seeks to make the Judiciary an instance of political climate governance. Since they are state-owned companies, they alleged that they do not have the autonomy to develop their own environmental policy, but must observe the policies defined by the Federal Government, environmental legislation and the Federal Constitution. They argued that the plaintiff's procedural and extra-procedural stance causes damage to the image, objective morality and reputation of the BNDES system. The defendants requested: (i) procedural communication of potentially interested entities; (ii) dismissal of the lawsuit without resolution of its merits; (iii) if the lawsuit is not dismissed, recognition of BNDESPAR as a mere plaintiff, or recognition of the need for a necessary and unitary passive joint litigation between BNDES, BNDESPAR and all interested institutions and companies listed in the procedural document; (iv) acceptance of the thesis of prescription of the lawsuit; (v) judgment for the dismissal of the claims; and (vi) conviction of the plaintiff for bad faith litigation. Conectas Direitos Humanos filed a reply, in which it refuted arguments brought by the defense and highlighted the importance of the Judiciary's role in climate disputes in order to protect citizens' rights. It pointed out that the climate measures sought by the lawsuit are different from the environmental measures listed by the defendants. It clarifies that the core of the ACP debate is (i) that the Brazilian legal system implies the necessary collaboration of BNDESPAR to achieve the country's climate goals and (ii) that the entity does not adopt measures in this sense, considering the most advanced technical criteria that exist.

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Principais recursos

Não se aplica

Principais normas mobilizadas

• Diretrizes Nacionais sobre Empresas e Direitos Humanos (Decreto Federal 9.571/2018)
• Constituição da República Federativa do Brasil de 1988 (CRFB/88)
• Art. 170 da Constituição da República Federativa do Brasil de 1988 (CRFB/88)
• Art. 225 da Constituição da República Federativa do Brasil de 1988 (CRFB/88)
• Política Nacional sobre Mudança do Clima - PNMC (Lei Federal 12.187/2009)
• Código Florestal (Lei Federal 12.651/2012)
• Convenção-Quadro das Nações Unidas sobre Mudança do Clima - UNFCCC (Decreto Federal 2.652/1998)
• Acordo de Paris (Decreto Federal 9.073/2017)

Timeline do Caso

Documentos do Caso