Case Name: Instituto Verdeluz, Conselho Indígena do Povo Anacé de Japiman e Associação Indígena do Povo Anacé da Aldeia Planalto Cauipe vs. Portocem Geração de Energia S.A. e SEMACE (Installation of thermoelectric power plant at the Pecém Industrial and Port Complex)

Summary

This is a Public Civil Action (ACP), with a request for preliminary injunction, filed by the Verdeluz Institute, the Indigenous Council of the Anacé People of Japiman, and the Indigenous Association of the Anacé People of the Planalto Cauipe Village against Portocem Geração de Energia SA and the Secretariat of the Environment of the State of Ceará (SEMACE). The objective is to suspend and subsequently annul the environmental licensing process for the Portocem Thermoelectric Power Plant (UTE), powered by natural gas, to be installed in the Pecém Industrial and Port Complex (CIPP). The authors claim that there were violations of legal norms and several omissions in the Environmental Impact Study (EIA), among which they highlight (i) the invisibility of indigenous communities in the vicinity of the project, (ii) the disregard for impacts related to water resources, (iii) the disregard for potential socioeconomic impacts and the potential to increase the existing conflict in the region, (iv) the underestimation of health damage, and (v) the disregard for climate impacts. They also believe that there was no adequate analysis of the synergistic and cumulative impacts with other projects in the region, considering its inclusion in the CIPP (Integrated Planning and Production Complex). Regarding climate impacts, the authors argue that the EIA failed to list important consequences for climate balance, considering that it is a gas-fired thermoelectric plant that uses less efficient methods of energy generation. The authors cite reports from the Intergovernmental Panel on Climate Change (IPCC) and how the use of fossil fuels is at odds with sustainable development goals and the guiding principles of national energy policy. They argue that Brazil and the State of Ceará have legally committed to climate protection and reducing greenhouse gas (GHG) emissions, which contradicts the implementation of yet another gas-fired power plant. The authors also highlight that the Northeast is one of the regions of Brazil most vulnerable to climate change and emphasize the importance of risk analysis of the project for the region's water security, considering that Northeastern water resources are under pressure from climate change. They state that the social groups that contribute least to climate change, such as traditional, indigenous, and marginalized communities, are already the most affected by its consequences, mobilizing the fundamentals of climate justice. In addition to problems in impact assessment and the preparation of the Environmental Impact Assessment (EIA), the authors point to flaws in the licensing process due to a lack of effective public participation. This is because only one public hearing was held, without proper publicity and without collecting criticisms or suggestions from those present. The authors also question the absence of prior, free, and informed consultation with the indigenous people of the Anacé ethnic group. They believe there was a violation of national and international norms on the rights of indigenous peoples, especially Convention 169 of the International Labour Organization (ILO). They also question the lack of a statement from FUNAI (National Indian Foundation) and the absence of a study of the indigenous component (ECI) in the licensing process. Given these various irregularities, the plaintiffs argue that the licensing of the Portocem Thermal Power Plant should be suspended. They argue that SEMACE (State Superintendency for the Environment) is violating constitutional, conventional, legal, and infra-legal norms in conducting the procedure, making it necessary to initiate a new environmental licensing process at the federal level, under the direction of IBAMA (Brazilian Institute of Environment and Renewable Natural Resources). Therefore, in a preliminary injunction, they request the suspension of the installation license granted by SEMACE, an order that Portocem Energia SA refrain from starting the construction work, and that SEMACE refrain from granting authorizations within the scope of the plant's licensing process, until the merits of the action are judged. On the merits, they request the annulment of the licensing process and the carrying out of a new environmental licensing process, conducted by the federal licensing body; or the condemnation of the defendant company to present a new EIA that remedies the identified flaws and includes the carrying out of an ECI and the prior, free, informed and good-faith consultation of the affected indigenous peoples.

A decision was issued denying the preliminary injunction request due to the absence of the requirements of urgency and probability of the right, especially considering that the licensing process in question has been ongoing for years and that it concerns a project that could benefit the entire state of Ceará. Regarding the need for prior consultation, the court understood that it would only be necessary if the project were located in indigenous territories and prospected or exploited resources there, which was not the case here. At the same time, the plaintiffs were ordered to request the summons of IBAMA and FUNAI as necessary passive co-litigants, under penalty of dismissal of the case without prejudice. Thus, these agencies became part of the passive side of the action.

SEMACE filed a response defending the regularity and legality of the environmental licensing process. It states that the environmental agency adhered to all technical and legal requirements and considered all environmental impacts generated by the activity. It further states that no indigenous community was found in the project area during the process, either directly or indirectly affected. Finally, regarding the allegation of lack of public participation, it informs that this was remedied by holding a public hearing. Therefore, it requests the complete dismissal of the claim.

Subsequently, in its defense, FUNAI argues that there is no request made directly against it and that it is not a legitimate party to be included in the passive side of the case, since there was no request from the licensing body for its formal statement in the aforementioned environmental licensing process. It also argued that it is necessary to include the location of the project to verify the existence or not of an indigenous community in the area that would justify its intervention.

In turn, IBAMA filed a counterclaim stating that it is not within its purview to conduct prior, free, and informed consultation with indigenous and traditional communities. It also alleged that no claim had been filed against it and further informed that it had rescinded its cooperation agreement with SEMACE, which had authorization to carry out the licensing process, initiating administrative proceedings to verify any possible provision of incorrect information regarding the existence of Indigenous Lands near the project. Therefore, FUNAI and IBAMA requested the dismissal of the case without prejudice, accepting the preliminary objections presented, or a judgment of dismissal of the claim.

Portocem contested the initial claim, alleging incorrectness of the chosen legal avenue and inadequacy of the initial pleading. It stated that questioning the legality of the environmental licensing seeks recognition of indigenous territory, which would not be possible through a public civil action, nor judicially. It also asserted that the statute of limitations had expired, considering the year 2017 in which approval was obtained for the environmental licensing of the Portocem Thermal Power Plant. Furthermore, it argued that the circumstances of the case do not allow for the application of the environmental principles of precaution and prevention; that the effects of the project on water resources were considered during the licensing process; and that the project area does not overlap with indigenous land in a way that would trigger a duty to consult with indigenous peoples, thus there was no violation in this regard either.

In a subsequent decision, IBAMA and FUNAI were excluded from the passive side of the case.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• Article 231 of the Federal Constitution (CRFB/88)
• CONAMA Resolution 1/1986
• CONAMA Resolution 237/1997
• Environmental Crimes Law (Federal Law 9.605/1998)
• IBAMA's Normative Instruction 12/2010
• ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)
• National Environment Policy Act - PNMA (Federal Law 6.938/1981)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• National Water Resources Policy (Federal Law 9.433/1997)
• Paris Agreement (Federal Decree 9.073/2017)
• State Policy on Climate Change - PEMC

Case timeline

Case documents