Case Name: Instituto Preservar, AGAPAN e Núcleo Amigos da Terra vs. União Federal e outros (Climate emergency in the state of Rio Grande do Sul)

Summary

This is a Public Civil Action (ACP) brought by the Preservar Institute, the Rio Grande do Sul Association for the Protection of the Natural Environment - AGAPAN and the Friends of the Earth Center - Brazil against the Federal Union, the Brazilian Institute for the Environment and Renewable Natural Resources - IBAMA, the National Electric Energy Agency - ANEEL, the Southern Brazil Electric Energy Generation and Transmission Company - Eletrobras CGT Eletrosul (SE & UTE Cantiota III), the State of Rio Grande do Sul, the Henrique Luís Roessler State Environmental Protection Foundation - FEPAM and the Rio Grande do Sul Mining Company - CRM. The action aims to condemn the defendants to take effective measures to comply with the guidelines, deadlines and goals set forth in Brazilian and Rio Grande do Sul national climate law. It is argued that in the period from 2009 to 2023, the Union, and from 2010 to 2023, the State of Rio Grande do Sul, by action or omission, failed to comply with the legal guidelines and did not meet the deadlines and targets provided for in the National Policy on Climate Change (PNMC), the Paris Agreement and the Gaucho Policy on Climate Change (PGMC), as there was no effective implementation of instruments such as the Strategic Environmental Assessment (AAE), equal and transparent composition of the Gaucho Forum on Climate Change (FGMC) and the Brazilian Forum on Climate Change and no measures were taken to reduce greenhouse gas (GHG) emissions from coal-fired thermoelectric plants in the state of Rio Grande do Sul, with a Just Energy Transition (TEJ) plan, which results in the ineffectiveness of the aforementioned climate standards. It is pointed out that the climate crisis has caused a water shortage in the municipality of Candiota, which was recognized by municipal decree, and that, in parallel with this situation, the various coal-fired thermoelectric plants in the region use local water for cooling, causing damage to the water system, the biome and the climate. It is alleged that the defendants have neglected national and international standards regarding climate by not considering the climate component in the licensing and renewal of licenses for highly GHG-emitting projects in the state. At the same time, the Federal Government has encouraged coal-fired thermoelectric projects through energy auctions authorized by ANEEL. CRM, responsible for the Candiota coal mine, and CGT Eletrosul, responsible for the Candiota III Thermoelectric Plant - the most polluting and least efficient plant in the country - have operated in disregard of environmental and climate laws. It is argued that it is up to the Judiciary, based on the principle of prohibition of regression and duties of protection, to ensure effective compliance with the standards in question and prevent the worsening of the climate scenario. It is argued that the entire alleged unlawful situation gives rise to a claim for compensation for collective moral damages. The plaintiffs make several requests for urgent relief for the different defendants, so that the defendants' conduct becomes in accordance with the provisions of the environmental and climate standards. On the merits, it is requested that (i) the requests made preliminarily be confirmed; (ii) that it be declared that in the period from 2009 to 2023, the Union, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with climate standards and did not meet the deadlines and targets provided for in the PNMC, the Paris Agreement and the PGMC, for not having given effect to the regulations and not having acted to reduce GHG emissions from coal-fired thermoelectric plants in the state with special attention to the environmental licensing institute; (iii) that it be declared that Rio Grande do Sul failed to meet targets and deadlines provided for in international, national and state standards; (iv) the determination of the suspension of public incentives for coal exploration in the state, the execution of a TEJ plan for the contested plants; the publication of notices for financing educational projects and research projects with federal universities and institutes that encourage environmental awareness and the guidelines of the PNMC and the PGM; the creation of a WG for the decommissioning and energy transition of coal-fired projects; the suspension and non-renewal of the energy commercialization contracts of the contested plants; (v) the conviction of the defendants to pay compensation for climate damages; (vi) the conviction of the Federal Union and the state of Rio Grande do Sul to bear the costs of the requested claims; (vii) the conviction of all defendants to pay the amount of ten million reais as collective moral damages in environmental and climate matters. The request for urgent relief was denied by the court, which understood that the analysis of the requests would require a more in-depth adversarial process. It alleged that the claims of the authors were too broad and had high economic, political and social impacts. Furthermore, it argued that the effects of climate change are recognized by the international community, that the process of adaptation of countries is slower than desirable, and could cause irreversible damage to the environment and future generations. CRM filed a defense, requesting that the claims against the defendant be declared inadmissible, arguing that they are incompatible with each other. It argued that all of its activities are in line with environmental legislation and that, in accordance with current regulations, it has already drawn up a mine closure plan. It requested that the action be dismissed. In a partial decision, the court dismissed the claims related to ensuring job stability and the socioeconomic rights of workers, as it considered that this was a labor matter, which would not be within its jurisdiction. In its response, ANEEL claimed that it lacked standing to be a passive participant. It highlighted the agency's internal initiatives on innovation and energy transition. It stressed that the participation of non-renewable sources in energy auctions is not a discretionary choice by ANEEL, but rather compliance with the guidelines established by the Ministry of Mines and Energy, and that the agency does not exercise the role of a licensing authority. It claimed that 80% of Rio Grande do Sul's energy matrix is composed of renewable energy sources and that the forecast for expanding the state's energy supply does not include an increase in fossil fuels. It requested that the claims be dismissed. The state of Rio Grande do Sul also filed an objection. As a preliminary matter, it requested that the case be dismissed without judgment on the merits due to the inadequacy of the chosen route. On the merits, it argued that the action should be dismissed, since the state complies with current federal and state regulations, that the causes of climate change are global, and that there is no causal link between the conduct of the state entity and the damage alleged in the initial claim. In its response, IBAMA argued for the dismissal of the action. It claimed that its actions comply with all legal standards; that there is no standard governing the mitigation and reduction of GHG emissions; that decisions on reducing GHG emissions and the need to replace the national energy matrix are made by technical bodies, and that the Judiciary Branch has no right to intervene; that the causes of air pollution are diffuse and that there is no evidence of damage caused by IBAMA. The Union, in its defense, requested that the case be dismissed without a resolution of the merits due to lack of standing to sue and ineptitude of the initial claim. On the merits, it alleged that it does not have jurisdiction to monitor mining activities and activities related to the production, transmission, distribution and sale of electric energy. Among other arguments, it argued that the Judiciary Branch should not have jurisdiction over the administrative merits, that Brazilian legislation does not contain subnational sectoral targets for reducing GHG emissions, and that there is no causal link that could link the Union to the environmental damages mentioned in the initial claim, whether by action or omission. In its response, Eletrobras CGT Eletrosul alleged that the licensing of UTE Candiota III was carried out regularly, with climate factors having been considered in the procedure; that its operation complies with GHG emission parameters established in the licensing; and that the plant is not the most polluting in the country. It argued that the Paris Agreement, the PNMC and the Rio Grande do Sul Policy on Climate Change are general and programmatic standards, which do not generate obligations; and that there is no specific legal provision that substantiates the climate environmental licensing. It pointed out that the country has a scenario of reducing GHG emissions from thermoelectric plants. It argued that the damages allegedly caused by the operation of the plant were not proven in the initial claim. As a preliminary matter, it requested that the case be dismissed without a resolution on the merits. On the merits, it requested that the denial of the preliminary claims be maintained and that the requests be dismissed.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• National Environment Policy Act - PNMA (Federal Law 6.938/1981)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• Paris Agreement (Federal Decree 9.073/2017)
• State Policy on Climate Change - PEMC

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