Case Name: IBAMA vs. V. de Souza Brilhante EIRELI (Illegal logging in Porto Grande and climate damage)

Summary

This is a Public Civil Action, with a request for urgent relief, filed by IBAMA against the company V. de Souza Brilhante EIRELI seeking compensation for environmental and climate damages due to the deposit of timber in logs without an environmental license. This Public Civil Action is part of a set of 9 actions filed by IBAMA with the same grounds, but against different defendants, to question illegal timber deposits and climate damages. The plaintiff claims that the storage of timber without proven origin is associated with illegal deforestation and predatory exploitation in the Amazon biome. Thus, he seeks compensation for associated environmental damages including (i) damages caused to flora and fauna, (ii) soil erosion, (iii) contribution to global warming. Regarding climate damage, he claims that illicit conduct not only removed carbon sinks from the forest, but also caused the release of carbon into the atmosphere. The author seeks to determine (i) the obligation to carry out vegetation recovery in an area equivalent to that estimated by IBAMA, based on the volume of seized logs, totaling 14.90763 hectares, and (ii) the obligation to pay for climate damage based on the Social Cost of Carbon (CSC). Based on the polluter-pays principle, he claims that the negative climate externality represents an external social cost that was not internalized by the illegal vegetation removal activity. He argues that climate damage can be identified on an individual scale by multiplying the estimated GHG emissions from the activity by the CSC. In this specific case, IBAMA uses the Amazon Fund methodology to estimate emissions based on the area of the Amazon biome considered deforested. He expressly mentions environmental justice and argues that liability for climate damage consists of legally asserting the correction of the distortion of environmental burdens and benefits. The plaintiff requests, as a preliminary injunction: (i) suspension of financing and tax incentives and access to credit lines for the offender, (ii) unavailability of assets worth the estimated value for the obligation to restore vegetation and the obligation to pay for climate damage, and (iii) judicial embargo on the illicit polluting activity. He also claims the need to reverse the burden of proof and, definitively, requests that the defendant be sentenced to the obligation to restore an area equivalent to that deforested and to pay, in the amount corresponding to the social cost of carbon. The court ruled in favor of the preliminary injunction and reversed the burden of proof. In its defense, the defendant preliminarily alleged lack of standing to sue due to lack of evidence regarding authorship of the deforestation and the inadequacy of the initial claim, understanding that there was no claim or cause of action. On the merits, the defendant was found to be unresponsible due to lack of evidence that the defendant was the author of the damage, in addition to having no influence over the area where the alleged deforestation had taken place. Subsequently, a judgment was handed down that upheld the claims. The defendant's arguments were refuted and it was stated that the notice of violation met the requirements for validity and delimited the environmental damage. The claim of passive illegitimacy was also refuted, stating that, in the environmental sphere, civil liability of a purely objective nature prevails. Thus, the defendant was ordered (i) to carry out and establish the recovery of the area, and to prepare and comply with a reforestation project for the deforested area, under penalty of a fine, and (ii) to pay compensation for property damages, in the event that it is impossible to recover the degraded area, in an amount to be defined in the liquidation phase, by arbitration. In view of the ruling, IBAMA filed a motion for clarification requesting that the defendant be ordered to pay the amount of R$1,447,650.20 for the social cost of carbon, which was not addressed in the ruling. Subsequently, an integrative ruling was issued in which the court remedied the omission in the previous decision by including in the ruling the obligation to pay for the social cost of carbon.

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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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