Case Name: Ministério Público Federal vs. INEA e Karpowership Brasil Energia Ltda. (Transmission lines and UTE in Sepetiba Bay)

Summary

This is a Public Civil Action (ACP) filed by the Federal Public Prosecutor's Office (MPF), with a request for preliminary injunction, against INEA and Karpowership Brasil Energia Ltda., due to alleged irregularities in the Environmental Licensing process for 36 temporary power transmission line towers in Sepetiba Bay, in Itaguaí, Rio de Janeiro. The plaintiff alleges that INEA, when granting Integrated Environmental License (LAI IN000312), disregarded the synergistic and cumulative impacts when analyzing the request for installation and operation licenses for four floating thermoelectric power plants (UTE) in the same region, which are part of the same project. It is argued that the absence of an Environmental Impact Study/Environmental Impact Report (EIA/RIMA) and a public hearing with the participation of the local community was verified. The MPF bases the claim on the duty of the Public Power to defend and preserve the ecologically balanced environment as provided for in Article 225 of the Federal Constitution. Based on Complementary Law 140/2011, it argues that the authority to license projects likely to cause environmental impacts in the coastal zone and territorial sea belongs to the Federal Government and, therefore, the environmental licensing of the four thermoelectric plants is the responsibility of the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA). Thus, the cumulative and synergistic impacts of the projects, which require a joint assessment of viability, also attract federal jurisdiction over the 36 energy transmission towers. It emphasizes the special protection afforded to the Atlantic Forest biome (granted by Federal Law 11.428/2006) when it comes to vegetation suppression. The Federal Public Prosecutor's Office points out that the thermoelectric projects generate pollution from Greenhouse Gases (GHG). For this reason, INEA should require prior studies to assess the project's contribution to climate change, taking into account the objectives of the National Climate Change Policy - PNMC (Federal Law 12.189/2009) and the targets assumed by Brazil under the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other measures, the following is requested: the preliminary suspension of the LAI and, definitively, the: (i) declaration of nullity of the LAI; (ii) assessment of the project considering its contribution to climate change, in order to ensure that emissions are mitigated; (iii) condemnation of INEA to the obligation not to grant licenses without conducting an EIA; (iv) condemnation of INEA to the obligation to consider, after the presentation of the EIA/RIMA, the overall analysis of the licensing, considering the cumulative and synergistic effects of the projects; (v) condemnation of the defendants to the obligation to recover the already deforested areas and the existing environmental liabilities; and (vi) condemnation of the defendants to indemnify and compensate for the damages caused, considering their material and non-material nature, including collective moral damages.

The Federal Public Prosecutor's Office (MPF) subsequently added a document in which the Z-15 RJ Fishermen's Association of Sepetiba Bay expressed its opposition to the project. It argues that fishing is an activity of social and economic importance, but above all, it is part of the life history of generations of fishermen. It maintains that the fishermen should be included, as they will be directly affected.

In its defense, Karpowership Brasil Energia Ltda. argued that: (i) there was no separation of environmental licensing, since the project is treated as part of the “UTE Rio de Janeiro Project”; (ii) the characteristics of the transmission line do not require an EIA/RIMA or a public consultation; (iii) there is a Technical Cooperation Agreement between IBAMA and INEA with the objective of transferring the execution of the environmental licensing of the Project; (iv) the project implementation site is a consolidated area; (v) the project is part of the Federal Government's emergency energy generation policy and has been declared strategic by the Government of the State of Rio de Janeiro; and (vi) there is a study identifying the trees to be removed, a management report for species vulnerable to extinction, and a Fauna Monitoring Plan. For these reasons, it requests, among other measures, the dismissal of the requests for preliminary injunction and that the claims made in the initial complaint be dismissed.

A judgment was issued dismissing the case without prejudice. The court analyzed, jointly, the present Public Civil Action and Public Civil Action No. 5041112-20.2022.4.02.5101, also filed by the Federal Public Prosecutor's Office, due to the connection and complementarity between the claims. It highlighted that both proceedings should be dismissed due to (i) lack of standing of the Federal Public Prosecutor's Office; (ii) absolute lack of jurisdiction of the court; and (iii) lack of interest in bringing the action due to the inadequacy of the chosen procedure. It was understood that the claim filed by the Federal Public Prosecutor's Office would be the responsibility of the Attorney General of the Republic, with original jurisdiction belonging to the Supreme Federal Court. It argued that the requested claim would be, without due process of law, a type of intervention representation action. It pointed out that the fact that the thermoelectric plant is located in territorial waters does not remove it from state territory and, therefore, does not give rise to the intervention of the Federal Public Prosecutor's Office. In this regard, he pointed out that the Federal Public Prosecutor's Office filed a similar lawsuit, obtaining a favorable decision, but it has already been suspended by the President of the Court of Justice of the State of Rio de Janeiro.

The Federal Public Prosecutor's Office filed an appeal with a request for urgent provisional relief, challenging the decision to dismiss the case.

The Court issued a ruling that partially granted the appeals and necessary remands, annulling the dismissal judgment and ordering the continuation of the Public Civil Actions, recognizing the standing of the Federal Public Prosecutor's Office and the jurisdiction of the Federal Court. However, it declared the request for annulment of the environmental licenses based on the absence of an Environmental Impact Assessment/Environmental Impact Report (EIA/RIMA) and a public hearing to be moot, due to the supervening loss of interest in pursuing the action, maintaining the case only for the purpose of investigating any potential environmental damage and the corresponding duty to repair it, with the internal appeals also being dismissed as moot.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• Atlantic Forest Law (Federal Law 11.428/2006)
• Complementary Law 140/2011
• CONAMA Resolution 1/1986
• CONAMA Resolution 237/1997
• 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