Case Name: Ministério Público do Estado de São Paulo vs. Filipe Salles Oliveira e Alexandre Salles Oliveira (Burning of sugarcane straw)

Summary

This is a Public Civil Action (ACP) filed by the Public Prosecutor's Office of the State of São Paulo (MPSP) against Filipe Salles Oliveira, with the subsequent inclusion of Alexandre Salles Oliveira as a defendant. The action questions the practice of setting fire to sugarcane fields for soil clearing, preparation, and harvesting of agricultural goods. The plaintiff argues that burning sugarcane fields leads to environmental degradation, given that the high release of carbon monoxide (CO) and ozone (O3) during combustion generates high air toxicity, compromising atmospheric quality. It emphasizes that the problem is a matter of public health and that the population in sugarcane-growing areas is more susceptible to respiratory and pulmonary diseases. It highlights that the society of Catanduva/SP rejects the practice of burning, which occurs near peripheral neighborhoods, especially because the benefits of burning do not outweigh the burdens arising from the activity. The plaintiff argues that this practice causes a loss of biodiversity, especially harming the wildlife that inhabits the burned areas, victimized by the fire. Finally, the plaintiff requests that the defendant be ordered, among other measures, to: (i) refrain from using fire for soil clearing, planting preparation, and sugarcane harvesting in the areas he cultivates in Catanduva, under penalty of a fine; and (ii) pay compensation for environmental damages already caused since the acquisition of possession. Subsequently, the Public Prosecutor's Office of São Paulo (MPSP) issued a statement, upon learning of new scientific studies on the danger of the activity, requesting the granting of a preliminary injunction to prohibit, immediately, the burning of sugarcane during the planting, soil preparation, or harvesting phases, under penalty of a daily fine.

In a preliminary ruling, the Court recognized the environmental damage and harm to public health, granting the requested injunction. The defendant filed an interlocutory appeal (AI 54.087.5/4) against this decision. The 2nd Chamber of Public Law of the Court of Justice of the State of São Paulo (TJSP), when judging the appeal, found that there was no prima facie case and concluded that the preventive measure has a satisfactive nature, and therefore cannot be the subject of an injunction. Thus, it granted the appeal.

With the citation of the passive co-litigant Alexandre Salles Oliveira, the defendants filed a response. They stated that there was no harm to human health or damage to the environment. They argued that federal legislation (Federal Decree 2.661/1998) allows the use of fire for sugarcane harvesting, with only the need for gradual elimination of the practice. They stated that they observe state legislation (State Decree 42.056/1997), which expressly permits the activity, provided that a Burning Elimination Plan (PEQ) is adopted. They argued that there is no definitive scientific work linking sugarcane burning to harmful effects on human health or environmental damage. They pleaded for the dismissal of the plaintiff's claim.

In its ruling, the Court held that, given the existence of any scientific uncertainty, the doubt should be interpreted in favor of society, considering the right to an ecologically balanced environment (Article 225 of the Federal Constitution). It incidentally declared Decree 42.056/1997 unconstitutional. It upheld the initial request, making the preliminary injunction definitive, ordering the defendants to: (i) immediately cease burning the sugarcane fields, under penalty of a daily fine; and (ii) jointly and severally pay compensation for the environmental damage already caused by the burning, since the acquisition of possession.

The defendants filed a Civil Appeal (ApCiv 360.659-5/1-00), arguing that burning crops is permitted by federal and state laws. They argued that the potential inability to use burning would prevent the continuation of their economic activity, and they also challenged the amount of compensation, claiming it was disproportionate. The Sixth Chamber of Public Law of the TJSP (Court of Justice of São Paulo) issued a ruling recognizing that wildfires destroy the natural environment and cause ecological imbalance, and that their incidental effects have repercussions that harm the health of the population, contributing to the occurrence of diseases. It concluded that there is no express rule prohibiting the conduct, but the practice of wildfires violates constitutional guarantees of environmental preservation and protection of people's health. It emphasized that the social function of property should be applied in a way that prioritizes social interests that do not harm the community. Thus, it concluded that rural property must meet the requirement of preserving the environment. It therefore upheld the sentence, denying the appeal.

Following the ruling by the São Paulo Court of Justice (TJSP), the defendants filed a Special Appeal (REsp 1.094.873/SP) with the Superior Court of Justice (STJ), arguing that the practice of controlled burning is legally supported by Article 27 of the 1965 Forest Code (Federal Law 4.771/1965). They emphasized that the law provides for a gradual reduction in the use of fire, but without immediately eliminating the practice. The Reporting Justice issued a decision in which, on the merits, he ruled in favor of prohibiting the practice, as Article 27 of the 1965 Forest Code is explicit in this regard, according to the majority jurisprudential understanding in the Court.

Thus, the defendant filed an interlocutory appeal within the scope of the Special Appeal. In its ruling, the Second Panel of the Superior Court of Justice (STJ) understood that there are modern instruments and technologies capable of replacing the practice of burning sugarcane fields, without environmental damage, while maintaining the viability of the economic activity. It highlighted that the exception permitting the use of fire in the 1965 Forest Code does not cover organized agro-industrial or agricultural activities. It concluded that environmental protection prevails over economic interests, especially when there are less harmful ways of exploiting the soil. Therefore, it denied the interlocutory appeal. Subsequently, the defendants filed a motion for clarification (EREsp 1.094.873/SP), which was not admitted. The defendants then filed an Extraordinary Appeal to the Supreme Federal Court (STF), which was rejected by the STJ. Therefore, they filed an Appeal in the Extraordinary Appeal against the inadmissibility decision (ARE 1.296.400), which was denied by the Reporting Justice of the Supreme Federal Court. The defendant challenged the decision through an Internal Appeal, which was acknowledged but not granted by the First Panel of the Supreme Federal Court.

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Main norms mobilized

• Article 170 of the Federal Constitution (CRFB/88)
• Article 225 of the Federal Constitution (CRFB/88)
• National Environment Policy Act - PNMA (Federal Law 6.938/1981)

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