Case Name: Ministério Público Federal e INCRA vs. Cleide Guimarães Machado (Deforestation and climate damage in the Antimary Environmental Impact Assessment Program)

Summary

This is a Public Civil Action (ACP) filed by the Federal Public Prosecutor's Office (MPF) against Cleide Guimarães Machado due to the deforestation of an area of 292.84 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant's occupation of the land was illegal because it is an area included in an Agro-extractive Settlement Project (PAE), owned and of interest to the Federal Government, managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractive communities. This class action lawsuit is part of a set of 22 actions filed by the Federal Public Prosecutor's Office (MPF) as a result of the investigation carried out in civil inquiry no. 1.13.000.001719/2015-49, concerning illegal deforestation within the Antimary Agrarian-Extractive Settlement Project (PAE), but against different defendants. The lawsuit's arguments are based, among other points, on Brazilian Environmental Law, regarding the constitutional protection of the environment, the accusation of deforestation, civil liability propter rem for environmental damages, including climate damages, and collective moral damages. It also mentions, as an environmental liability, the unauthorized emissions of Greenhouse Gases (GHG) resulting from the illegal deforestation of the area, calculated at 160,574.33 tons of carbon dioxide, which are directly related to the Brazilian State's departure from its climate goals, out of step with national and international commitments assumed by Brazil in the National Policy on Climate Change – PNMC (Federal Law 12.187/2009) and the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests, the following are made: (i) reparation for the damages caused by the illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual environmental material damages; (iv) payment of compensation corresponding to climate damages; and (v) payment of compensation corresponding to collective moral damages.

Subsequently, INCRA was included in the active party as a co-litigant assistant to the plaintiff.

In its defense, the defendant argued its lack of standing because its possession only occurred in 2019, while the facts narrated in the initial complaint indicate that the deforestation in the area took place between 2011 and 2020, with no proof that it deforested the area after taking possession. On the merits, it argued for the complete dismissal of the action. Among other issues, it was alleged that the propter rem nature of the environmental obligation refers only to the recovery of the area and that, due to the lack of proof that the defendant was responsible for the deforestation, there is no causal link that allows for its civil liability for material and moral damages.

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Main norms mobilized

• Article 170 of the Federal Constitution (CRFB/88)
• Article 225 of the Federal Constitution (CRFB/88)
• Article 5th of the Federal Constitution (CRFB/88)
• Federal Constitution (CRFB/88)
• Forest Code (Federal Law 12.651/2012)
• ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)
• 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)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

Case timeline

Case documents