Case Name: IBAMA vs. Dirceu Kruger (Illegal deforestation in the Amazon and climate damage)

Summary

This is a Public Civil Action (ACP) filed by the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) against Dirceu Kruger due to climate damage. The defendant is a cattle rancher and has been repeatedly fined by the plaintiff environmental agency for the illegal deforestation of a total of 5,600 hectares in the state of Amazonas, using fire. It is argued that his illegal activity impacts the biomass of the Amazon, illegally interfering with the forest's carbon stock and emitting greenhouse gases (GHG), intensifying the climate crisis. Resolution 433/2021 of the National Council of Justice (CNJ) is used to establish the Judiciary's role in recognizing and acting upon climate damage. It is argued that climate damage is ongoing and addresses residual environmental damage in climate matters, which corresponds to the set of effects that cannot be remedied. It also addresses intergenerational environmental damage, since damage to the climate propagates indefinitely, causing future harm. The initial petition expressly mentions environmental and climate justice. It argues that the defendant's conduct violated the provisions of the Paris Agreement and that the international obligations incorporated by Brazil bind the Judiciary, implying the determination of reparability for environmental and climate damage. It presents a means of quantifying climate damage based on studies from the CADAF Project (Carbon Dynamics of Amazonian Forest), representing 160.34 tons of carbon emitted per hectare deforested; on a study developed by the Center for Management and Strategic Studies: "REDD in Brazil: an Amazonian approach", establishing 161 tons of carbon per hectare; and on the social cost of carbon (SCC), arguing that there is a direct proportion between the amount of hectares deforested and carbon generation, in line with the parameters established by the Amazon Fund. The defendant argues that climate damage can be identified on an individual scale by multiplying the estimated GHG emissions from the activity (5,600 hectares multiplied by 161 tons emitted per hectare) by the CSC (based on the OECD's calculated cost of 60 euros per ton). Thus, deforestation generated the illegal emission of 901,600 tons of carbon, resulting in an obligation to pay the amount of R$292,118,400.00. The defendant requests the reversal of the burden of proof. As a matter of urgency, the defendant requests that (i) the litigious nature of the property in question be recognized; (ii) official letters be sent to the National Registry of Titles and Documents of Civil Registry of Legal Entities; (iii) the defendant be prohibited from transferring the occupation of the area to third parties; (iv) the defendant be prohibited from accessing or borrowing chainsaws and other deforestation instruments. (v) that the defendant be prohibited from selling or donating cattle or agricultural products; (vi) that the blocking or unavailability of assets in the equivalent value of R$ 292,118,400.00 be ordered; (vii) the suspension or restriction of access to tax benefits and credit lines by the defendant; (viii) that the defendant be ordered to implement carbon sinks. In the final stage, it is requested that the defendant be ordered, in the forms specified in the initial pleading, to (i) repair the climate environmental damage through ecological compensation; (ii) repair the interim climate damage; (iii) promote ecological compensation; (iv) promote financial compensation for illegal greenhouse gas emissions, with the amount of R$ 292,118,400.00 reverting to the National Climate Change Fund; (v) promote financial compensation, to be determined by the court, with the amounts to be reverted to funds for the prevention and response to climate disasters; (vi) compensate for the amount related to disgorgement of profits; and (vii) confirmation of requests made on an urgent basis.

The court ordered an amendment to the initial complaint to better specify the claims, especially regarding the amounts to be compensated and to indicate the georeferenced coordinates of the area in question.

IBAMA presented the amendment. It clarified that its requests aim at the development of projects that repair the ecological attribute (the atmosphere affected by illegally emitted GHGs). It presented an explanatory table of the requests made, which explicitly stated the reparative object and its reference parameterization for settlement, and attached the georeferencing of the area to the records.

A single-judge decision was issued in which the court partially granted the requested urgent relief to: (i) order the freezing of the defendant's assets, up to the limit of R$ 292,118,400.00; (ii) order the defendant to implement carbon sinks, considering for this purpose the emission of 901,600 tons of carbon and, for the purposes of deduction, any recovery/restoration verified in the deforested areas, which must be proven at the time of presentation of the project within 90 days, under penalty of a daily fine; (iii) suspend and prohibit the defendant's access to financing lines in official credit institutions; (iv) suspend and prohibit the granting of tax benefits to the defendant; (v) notify national financial institutions regarding the processing of this public civil action; (vi) to prohibit the defendant from acquiring, selling, renting, or lending chainsaws, tractors, chainsaws, and associated instruments, as well as to prohibit the defendant from acquiring, selling, renting, or lending cattle or agricultural products, under penalty of a fine for each transaction that is carried out; and (vii) to prohibit the defendant from carrying out any transaction involving the properties affected by the deforestation discussed in the case, under penalty of a fine for each transaction that is carried out. The confidentiality assigned to the decision was lifted. In addition, the initial petition was partially dismissed, with only the requests for the implementation of carbon sinks and the adoption of environmental compensation measures related to the climate damage caused, for condemnation to financial compensation for the social cost of carbon, and for condemnation to restitution of illicitly obtained profits being processed.

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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)
• 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)

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Case documents