Case Name: Duda Salabert Rosa vs. estado de Minas Gerais e Taquaril Mineração S.A. (Serra do Taquaril Mining Complex)

Summary

This is a preventive Public Action (APop) with a request for preliminary injunction filed by an individual against the state of Minas Gerais, Taquaril Mineração S/A, and Vale S/A – later excluded from the passive pole – due to omission regarding the analysis of the aggravation of extreme weather events in the environmental licensing process of mining projects in the state of Minas Gerais. The plaintiff alleges that mineral exploration in the state is being affected by extreme atmospheric phenomena, a situation that is being neglected by the federative entity. Thus, it points out that the negligence regarding the climatic issue resulted in the flooding of the Downstream Containment Structure (ECJ) dam built by Vale S/A in the Municipality of São Sebastião das Águas Claras after intense rains, flooding roads in the region, leaving the district without access to water, electricity, transportation, garbage collection, and other essential services. The objective of the ECJ is to minimize any damage caused by the rupture of the B3/B4 dam. The author indicates that the project was not preceded by an Environmental Impact Study (EIA) or the required environmental licensing. She highlights that the company cannot measure the impacts of a potential breach of the B3/B4 dam if the ECJ reservoir is filled with water and tailings. She asserts that a review of the hydraulic modeling for this type of project is therefore necessary through a corrective environmental licensing process. Regarding Vale S/A, she requests the suspension of the Apolo Project, which intends to implement mining exploration between the municipalities of Caeté and Santa Bárbara, since the studies presented within its environmental licensing processes did not analyze the influence of the intensification of extreme weather events on the operation of the activity. Similarly, she seeks to halt the environmental licensing process for the Serra do Taquaril Mining Complex, managed by Mineração Taqueril S/A, considering that the effects of climate change on the project have not been evaluated. According to the EIA, due to the Complex, sediment containment basins BS-1 and BS-2 will be built, which, if they rupture, will directly impact the water intake pipeline of Bela Fama, Nova Lima, affecting the supply of approximately 70% of the capital's population. The argument is that the National Policy on Climate Change – PNMC (Federal Law 12.187/2009) and the State Policy for the Prevention and Combat of Disasters Resulting from Intense Rainfall (State Law 15.660/2005) should guide environmental licensing in the State of Minas Gerais, so as to include the climate variable in the procedure, following a decision issued by the 9th Federal Court of Porto Alegre that determined the inclusion of climate guidelines in the Terms of Thermoelectric Power Plants in Rio Grande do Sul, in reference to Public Civil Action 5030786-95.2021.4.04.7100 (AGAPAN and others vs. IBAMA and others). The request is for the suspension of environmental licensing for the Serra do Taquaril Complex and the Apolo Project, and for the immediate commencement of corrective licensing for ECJ.

In its defense, Vale S/A stated that the Apolo Project was in a preliminary phase, still under analysis by the competent environmental agency, and therefore did not represent a danger to the environment. Similarly, it stated that ECJ was already undergoing a corrective licensing phase with SEMAD, which is why the plaintiff had no interest in pursuing the matter. Furthermore, it argued that there was no impossible passive joinder of parties, since there was no relationship between the defendants or any affinity between the claims made against each defendant.

Subsequently, the plaintiff requested an amendment to the initial complaint, in order to exclude Vale S/A from the defendant's side, as it would be more beneficial for the debate on Project Apollo and the ECJ to take place in a separate action.

Thus, in August 2022, a partial judgment was issued that dismissed the case in relation to Vale S/A. Subsequently, the court dismissed the action without prejudice due to the inadequacy of the chosen legal avenue. It understood that the Public Action for Non-Compliance with Public Prosecution (APop) is not an appropriate procedural means for the claim, as it involves requests for an order compelling a public entity to perform an action. According to the court, the APop is intended for the annulment or invalidation of an act detrimental to public assets; therefore, it cannot be used for the purposes of this action.

The case files were sent for mandatory review by the 2nd instance of the TJMG (Court of Justice of Minas Gerais), which upheld the sentence and reaffirmed the inadequacy of the chosen legal avenue. The ruling stated that there was no concrete harmful act, but rather a presumption or fear of harm to the environment, and that the acts in question could be the subject of a public civil action or an action for specific performance, with a popular action not being the appropriate legal avenue.

In view of the conclusion of the process, the case files were permanently archived.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• CONAMA Resolution 1/1986
• National Environment Policy Act - PNMA (Federal Law 6.938/1981)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)

Case timeline

Case documents