Case Name: IBAMA vs. Silmar Gomes Moreira (Illegal logging in Anapu and climate damage)

Summary

This is a Public Civil Action (ACP), with a request for urgent relief, filed by IBAMA against Silmar Gomes Moreira seeking compensation for environmental and climate damages based on an infraction notice for the storage of logs without an environmental license. This ACP is part of a set of 9 actions filed by IBAMA with the same grounds, but against different defendants, to challenge illegal timber storage and climate damage. The plaintiff alleges that the storage of timber without proven origin is associated with illegal deforestation and predatory exploitation in the Amazon biome. Thus, it seeks compensation for associated environmental damages, including (i) damage caused to flora and fauna, (ii) soil erosion, (iii) contribution to global warming. Regarding climate damage, it claims that the illegal conduct not only removed carbon sinks from the forest but also caused the release of carbon into the atmosphere. The author seeks to have determined (i) an obligation to restore vegetation in an area equivalent to that estimated by IBAMA, based on the volume of seized logs, totaling 20.6365 hectares, and (ii) an obligation to pay for climate damage based on the Social Cost of Carbon (SCC). Based on the polluter-pays principle, the author argues that the negative climate externality represents an external social cost that was not internalized by the illegal vegetation suppression activity. The author maintains that climate damage can be identified on an individual scale by multiplying the estimated GHG emissions from the activity by the SCC. In this specific case, IBAMA uses the Amazon Fund methodology to estimate emissions based on the area of the Amazon biome considered deforested, totaling 7,573.5955 tons of carbon. The author expressly mentions environmental justice and argues that accountability for climate damage consists of legally affirming the correction of the distortion of environmental burdens and benefits. The author requests, as an urgent measure: (i) suspension of financing, tax incentives, and access to credit lines for the offender, (ii) freezing of assets in the estimated amount for the obligation to restore vegetation and the obligation to pay for climate damage, and (iii) a court order to halt the illegal polluting activity. The author further asserts the need for reversal of the burden of proof and, definitively, requests that the defendant be ordered to restore an area equivalent to the deforested area and to pay the amount corresponding to the social cost of carbon emissions.

The court ruled that the preliminary injunction was denied, finding no urgency in the provision or danger in delay. IBAMA filed an interlocutory appeal against the decision (AI 1012699-74.2019.4.01.0000), which was subsequently dismissed due to loss of object with the supervening judgment on the merits.

The defendant filed a response alleging the initial complaint was flawed regarding the claim for compensation for environmental damages, arguing that the concrete facts of liability had not been indicated. He asserted the insignificance of the deforestation, which he claimed occurred to ensure the family's survival and was irrelevant in extent when compared to the total preserved area. On the merits, he questioned the infraction notice that forms the basis of the initial complaint, stating that a milder penalty of vegetation restoration could have been applied. He alleged that the infraction notice issued by IBAMA was illegal and that his right to due process and a full defense had been violated; in addition to abuse by the inspectors involved. He asserted the absence of the elements necessary to characterize objective liability, alleging the non-existence of specific and consequential environmental damage (to fauna, flora, soil erosion, and global warming). Finally, he asserted that the preliminary injunction requests and the reversal of the burden of proof were inadmissible. IBAMA submitted a rebuttal contesting the points raised in the defense, and attached Technical Information No. 10/2019-COREC/CGBIO/DBFLO, which explains how the calculation is made to arrive at the amount of compensation sought regarding the application of the Social Cost of Carbon (CSC).

There was a procedural decision in which the court denied the reversal of the burden of proof and summoned the plaintiff to, if desired, specify in detail the evidence they intended to produce. IBAMA filed an interlocutory appeal (AI 1012274-13.2020.4.01.0000) against the decision based on the understanding of the Superior Court of Justice (STJ) that the precautionary principle attracts the determination of reversal of the burden of proof in actions for liability for environmental damage. The appeal was granted by the Court.

Subsequently, a judgment was issued that partially granted the requests. The defendant's arguments were refuted, and it was affirmed that the infraction notice met the validity requirements. It was understood that both the environmental damage and the causal link necessary for liability were demonstrated in the document. Thus, the defendant was ordered to carry out the in-kind restoration, being required to prepare and implement a reforestation project for the deforested area, under penalty of fine. The court also ordered the freezing of the defendant's assets to ensure compliance with the judgment, and the suspension of credit, incentives, and tax benefits granted by the Public Authorities until full reparation of the damage is proven. However, the request regarding the obligation to pay for climate damage was not granted. The court considered payment based on the CSC (Consumer Safety Code) not to be a feasible obligation, stating a lack of delimitation due to insufficient expert evidence.

IBAMA filed an appeal, reiterating the argument for the need for compensation based on the CSC (Construction Site Safety Code). The appellant states that the initial petition indicated and demonstrated the probable amount of GHG emissions caused by the suppression carried out by the defendant, as well as indicating monetary values for its due compensation. It affirmed that the values presented are reasonably accurate estimates based on scientific data. The judgment, however, despite condemning the defendant for the damage and ordering the restoration of the area, denied the request for payment for climate damage. The appellant argues that, since the damage is certain and proven, it cannot be allowed to go unrepaired, and the judgment should be reformed in this respect. The appellee presented counter-arguments defending the maintenance of the judgment, and the appeal is still awaiting judgment.

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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)

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