Case Name: Instituto Saúde e Sustentabilidade e Defensoria Pública da União vs. União Federal e outros (Pollutant emissions from motor vehicles)

Summary

This is a Public Civil Action (ACP) filed by the Health and Sustainability Institute, with a request for urgent relief, against the Federal Government, IBAMA, Toyota do Brasil Ltda., Nissan do Brasil Automóveis Ltda., and Renault do Brasil SA, with the objective of declaring the nullity of Normative Instruction (IN) 23/2021, issued by IBAMA, which extends the validity of Licenses for the Use of Vehicle or Engine Configuration for models that do not meet the new pollutant emission limits of the PROCONVE L-7 phase, provided for in CONAMA Resolution 491/2018, relating to light road vehicles. The Resolution deals with the Air Pollution Program for Motor Vehicles (PROCONVE), which, among its objectives, seeks to reduce pollutant emission levels from motor vehicles to meet Air Quality Standards. The plaintiff organization emphasizes that the extension established in the IN was the result of a request made by the defendant companies. The argument is that the IN (Normative Instruction) extends the permission for the production and sale of vehicles that emit more greenhouse gases (GHG) and goes against the emission reduction commitments assumed by Brazil under the Paris Agreement (promulgated by Federal Decree 9.073/2017). Furthermore, it contradicts the duty of the Public Authorities to protect the environment, as stipulated in Article 225 of the Federal Constitution, and the principles of prevention, precaution, and prohibition of environmental regression. It also states that the regulatory change generates environmental damage, harm to human health, and damage to the climate system, insofar as it authorizes the unrestricted growth of the automotive fleet, characterized by the burning of fossil fuels, demonstrably responsible for exacerbating the greenhouse effect. It argues that the effects of the climate crisis disproportionately affect the most socioeconomically vulnerable populations. For these reasons, it requests, among other measures, in advance, (i) the suspension of the effects of IN 23/2021 and, on the merits, (ii) the declaration of nullity of said IN, (iii) the condemnation of the defendants for material damages to the environment and (iv) the condemnation of the defendants to pay compensation for collective damages.

In its ruling, the court noted the participation of the Institute of Collective Law (IDC) as an interested third party and informed that it will consider the amicus curiae request in due course.

The court granted the request for urgent relief and ordered the defendants to submit reports detailing the number of vehicles produced between December 31, 2021, and March 31, 2022, that did not meet the emission limits of the PROCONVE L-7 phase, and suspended the effects of IN 23/2021. Furthermore, it granted the admission of amicus curiae and the admission of the Federal Public Defender's Office as a co-litigant assistant to the plaintiff.

IBAMA filed an interlocutory appeal against the decision granting preliminary injunction, arguing primarily that the annulment of IN 23/2021 would not bring any benefit to the environment, considering that its validity has already expired, but would only render illegal the vehicles completed and marketed under its validity. In this sense, it requested the reversal of the appealed decision so that the consolidated situations are maintained. Subsequently, the appeal was partially granted by the Federal Regional Court of the 3rd Region (TRF-3) to revoke the appealed decision regarding the suspension of the effects of IN 23/2021 and regarding the order for the defendants to present documents. The argument that the non-renewal of the licenses would generate significant environmental damage was accepted, since it would interrupt the production of these automobiles, transforming them into environmental waste.

In its defense, Toyota do Brasil argued that, although it had requested temporary authorization from IBAMA and CONAMA to finalize the manufacture of vehicles according to the specifications of phase L-6 of PROCONVE, it did not use the extension granted by IN 23/2021, as all vehicles related to that phase were completed in 2021. It argued for the recognition of the inadequacy of the chosen legal avenue for filing the lawsuit and for the company's lack of standing to be sued. It defended the legality of IN 23/2021, as it was a measure widely discussed and issued by a competent body. It clarified that the IN only covered vehicles whose engines were already authorized for the PROCONVE L-6 phase, but which had not been completed due to the COVID-19 pandemic, thus negating any claim of regression or environmental damage. It requested, preliminarily, the dismissal of the case without prejudice. In his final statement, he requested that the initial claims be dismissed.

In its defense, Nissan argued that it was not a legitimate party to be named as a defendant in the lawsuit because it did not fall under the scope of IN 23/2021. It alleged that it did not extend the production of PROCONVE vehicles from phase L-6 beyond the date established in the IN and that all vehicles produced by the defendant from 2022 onwards already complied with the requirements of phase L-7 of the program. It argued that the IN is valid and maintained that the company's liability for the alleged damages had not been proven. Furthermore, it clarified that its production activities are compatible with national and international climate goals and commitments. It requested recognition of the company's lack of standing as a defendant and, subsidiarily, that the claims be dismissed.

IBAMA also filed a rebuttal. It raised preliminary objections regarding the inadequacy of the chosen legal avenue for the requested judicial protection. It argued for the legality and constitutionality of IN 23/2021, since the administrative act only extended the validity of some Licenses for Use of Vehicle or Engine Configuration (LCVM) issued in phase L-6 of PROCONVE, totaling 5,398 vehicles manufactured during its period of coverage. It clarifies that the IN (Normative Instruction) stipulated that vehicle manufacturers and importers with vehicles whose production was incomplete due to a lack of electronic components caused by the COVID-19 pandemic should inform IBAMA (Brazilian Institute of Environment and Renewable Natural Resources) of the affected quantities by January 31, 2022, in order to complete their production by March 31, 2022, and conclude their commercialization by June 30, 2022. The normative act stipulated that if the vehicles could not have their final assembly completed by the beginning of 2022, they could not be used and would be discarded. Therefore, the IN established a "carry-over stock" of vehicles to allow the entry into the market of those already in the manufacturing process, whose engines did not represent an increase in emissions beyond what was already foreseen for phase L-6 of PROCONVE (Brazilian Vehicle Emissions Control Program) and, thus, would not constitute environmental damage. IBAMA requested the dismissal of the action without prejudice and, alternatively, a judgment of dismissal of the claims, with the revocation of the provisional injunction granted.

In its defense, the Federal Union argued, preliminarily, that it lacked standing to be sued and that the chosen legal avenue for filing the claim was inappropriate. It defended the validity and effectiveness of IN 23/2021, which was issued due to force majeure caused by the COVID-19 pandemic, aiming to prevent a greater financial crisis. It argued that the Union had no civil liability, that there were no material damages to the environment or collective moral damages, and challenged the amount of compensation requested in the initial claim. It requested that the preliminary objections be upheld in order to dismiss the action without prejudice and, subsidiarily, that the claims be dismissed.

Renault do Brasil SA, in its defense, argued that, of the 5,398 vehicle units whose manufacture was completed in 2022 based on IN 23/2021, only 125 belong to the brand. It stated that, also during 2021, Renault had produced other vehicles ahead of schedule that already met phase L-7 of PROCONVE. It clarified that the IN did not imply an increase in the circulating vehicle fleet beyond what was foreseen for phase L-6 of the program. It reiterated arguments used by the other defendant automotive companies regarding the legality, validity, and proportionality of the IN. It defended that the completion of the production of 125 vehicles in accordance with phase L-6 of PROCONVE by the company did not cause environmental damage. It requested a judgment dismissing the claims made in the initial complaint. Alternatively, it requested that the fact that Renault produced and marketed 125 vehicles based on IN 23/2021 (2.31% of existing vehicles covered by the IN) be considered, so that Renault's eventual liability for environmental damage or collective moral damage should be limited to that proportion.

The parties were called upon to state what evidence they intended to produce. On this occasion, the Institute of Collective Law (IDC), amicus curiae, filed a petition requesting that the documents and studies submitted by the plaintiff be analyzed, also determining the reversal of the burden of proof requested and that all requests made in the initial complaint be deemed admissible, considering that IN 23/2021 is inconsistent with Brazilian efforts to reduce the impact on the climate crisis, and should be clearly [discussed/corrected].

The court issued a judgment dismissing the claims made in the initial petition, highlighting the self-restraint of the Judiciary and the deference shown towards the examinations carried out by IBAMA, considering the technical discretion and expertise of the agency in environmental matters and the non-disregard for the presumptions of truthfulness and legitimacy of the administrative act. In view of the opinions presented, it was noted that the extension of the licenses and, consequently, of the stock transfer period, by only three months, would not have significantly worsened the environmental condition. It was considered that there is no increase in the number of vehicles in phase 6, but only the late completion of a small number of vehicles (5,398), duly cataloged, whose production had already begun in 2021 and could not be finalized due to a lack of essential components. Thus, it considered that there was no illegality or violation of constitutional provisions and emphasized that the publication of IN 23/2021 in the last days of 2021 was due to the actual impossibility of meeting the deadline for completing the manufacturing of vehicles already licensed in that year. Finally, the court considered that the negative environmental impact that would result from the implementation of IN 23/2021 would not exceed the values already considered in the CONAMA Resolutions.

The Federal Public Defender's Office filed an appeal.

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Main norms mobilized

• Article 170 of the Federal Constitution (CRFB/88)
• Article 225 of the Federal Constitution (CRFB/88)
• Federal Constitution (CRFB/88)
• National Environment Policy Act - PNMA (Federal Law 6.938/1981)
• Paris Agreement (Federal Decree 9.073/2017)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

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