Just months after we discussed a recent climate lawsuit filed in Brazil against a rural landowner due to alleged illegal deforestation in the Amazon, a new chapter in Brazilian climate litigation unfolds and reinforces the trend of climate change lawsuits against public and private entities. In this Blog Post, we take a look at this new precedent and how it further impacts climate change discussions in the context of carbon-intensive activities.
In May 2021, a group of five NGOs filed a lawsuit against IBAMA (the Brazilian federal environmental agency) and a company developing a coal mining and associated thermal power plant project in the state of Rio Grande do Sul. The NGOs sought to suspend a public hearing scheduled in connection with the project’s environmental licensing, claiming that relevant information regarding the project was not publicly available so it was not possible to have effective public engagement. In addition to this claim, the NGOs argued that the environmental impacts of the project were not duly assessed, among other reasons, because “the environmental impact assessment must contain clear information regarding the contributions of the thermal power plant to GHG emissions and what these emissions represent vis-à-vis Brazilian emission reduction targets submitted under the Paris Agreement”.
Even though the initial claim was dismissed and the public hearing was conducted in May, the lawsuit continued and the Federal Public Prosecutor’s Office was called upon to take part in the litigation. In their petition, the Prosecutors added that, “based on the precautionary principle and considering the current climate emergency situation”, IBAMA should be compelled to “include climate change guidelines in the environmental impact assessment requirements applicable to thermal power plants located in Rio Grande do Sul”, as provided in the Brazilian Climate Change Policy Act and the Rio Grande do Sul State Climate Change Policy Act.
Based on these arguments, an injunction was granted on August 31 to not only invalidate the public hearing that had been held in May, but also to suspend the environmental licensing of the project until the alleged flaws of its environmental impact assessment are addressed. In line with the Prosecutor’s claim, the judge also ruled that climate change guidelines must, indeed, be required in environmental impact assessments of thermal power plants located in Rio Grande do Sul, which should also include strategic assessments covering the impacts of coal projects in overcoming climate change challenges.
This is a precedent that once again clearly demonstrates how climate change litigation is consistently developing in Brazil, and how Public Prosecutor’s Offices have been adopting a proactive approach to litigating these types of cases. Even more, this precedent shows how climate change litigation can concurrently impact governments and private entities alike – in this case, the company had the environmental licensing of its project halted, while IBAMA is now compelled to require specific GHG and climate change inputs from licensees interested in licensing thermal power plants in Rio Grande do Sul. Nevertheless, as this is still an injunction granted in the beginning of the litigation, it will be interesting to watch how this case develops towards a merit verdict, both in first-level court and the court of appeals.