Case Name: AMOREMA e AMORETGRAP vs. Sustainable Carbon e outros (Carbon Credits and Extractive Reserves)

Summary

This is a Public Civil Action (ACP), filed by AMOREMA and AMORETGRAP, against Sustainable Carbon - Projetos Ambientais Ltda., Ecomapuá Conservação Ltda., Eccaplan Consultoria em Sustentabilidade, Bio Assets Ativos Ambientais Ltda., Deloitte Touche Tohmatsu Consultores Ltda., Barilla G. and RFlli SPA, Banco Santander SA, ISA CTEEP - Companhia de Transmissão de Energia Elétrica Paulista, Deloitte Touche Tohmatsu Auditores Independentes, BB MAPFRE Participações SA, IATA International Air Transport Association, Swire Pacific Offshore Operations (PTE.) Ltd., Inter-American Development Bank, Companhia de Locação das Américas, Groupe Air France, 17er Oberlandenergie GMBH, Wienerberger GMBH, Brockhaus Stahl GMBH and other companies that acquired carbon credits from the Ecomapuá Project that could not be identified by the plaintiffs. It is alleged that the defendant companies are illegally trading carbon credits generated within or around the Mapuá Extractive Reserve (RESEX Mapuá) and the Terra Grande-Pracuúba Extractive Reserve (RESEX Terra Grande-Pracuúba), located in the Amazon and more specifically in the state of Pará, on the voluntary market, which constitutes a kind of "land grabbing" of these assets. This is because the defendant companies obtain economic advantage due to the improper appropriation of credits, based on the environmental preservation promoted by the traditional extractive population, without them receiving fair remuneration or compensation. According to specific legislation, the Extractive Reserves are public lands of the Federal Union, whose real right of use is granted to the traditional populations that inhabit them. This discussion concerns the generation and sale of carbon credits from 2015 onwards from the “Ecomapuá Project” in the Amazon, developed and/or marketed by the companies Ecomapuá, Sustainable Carbon, Bio Assets, and Evento Neutro. This project involves the sale of assets originating from REDD+ projects (credits generated by avoided deforestation, sustainable management, and increased forest carbon stocks). The other defendant companies are being sued for acquiring the assets without due diligence, thus entering into contracts that are null and void due to illicit purposes, or for supporting the project. It is argued that areas of the Project, specifically the Brasileiro, Lago do Jacaré, and São Domingos farms, overlap with the territories of the Mapuá and Terra Grande-Pracuúba Extractive Reserves, where hundreds of families reside. Therefore, the certified credits from these areas should belong to the extractive communities that inhabit them. It is argued that the preservation of forests in the project areas stems from the activities of the region's extractive communities and that the sale of assets from the Ecomapuá Project included "social carbon" certification, claiming that there would be benefits for the communities, which did not occur. Therefore, the plaintiffs allege that the companies improperly used the name, image, and cultural heritage of the communities and distorted the facts by advertising the project's socio-environmental responsibility. The associations argue that the companies caused collective material and moral damages to the extractive families and profited from the intervention. The following is requested: (i) that the defendant companies selling carbon credits present detailed reports on said assets; (ii) that the defendant companies present contracts and other documents regarding the transactions carried out within the scope of the Ecomapuá Project; (iii) the joint and several liability of the defendant companies to pay the plaintiffs compensation for material damages, restitution of benefits obtained by the defendant companies, and compensation for collective moral damages. and (iv) a determination, under penalty of fine, that the defendants cease buying or selling carbon credits from within or around the Mapuá and Terra Grande-Pracuúba Extractive Reserves and cease using the name and image of the extractive populations, their associations and the respective Extractive Reserves.

Initially, the lawsuit was assigned to a court in the Federal Justice system of Pará specializing in environmental and agrarian matters, which issued a decision declaring its absolute lack of jurisdiction to analyze the matter. It recognized that the lawsuit dealt with the allegedly improper commercialization of carbon credits by the defendant companies and not with discussions of state intervention in private property, expropriation of real estate for agrarian reform purposes, or environmental issues—matters over which the aforementioned court could be considered competent. Subsequently, jurisdiction to hear the lawsuit was transferred to the Breves District Court of the Court of Justice of the State of Pará (TJPA), as the court understood that the parties are private legal entities, not justifying the jurisdiction of the Federal Justice system. At the TJPA, the class action lawsuit was identified as case number 0801546-94.2022.8.14.0010.

Subsequently, the first instance court of the TJPA (Court of Justice of Pará) raised a negative conflict of jurisdiction before the Superior Court of Justice (STJ) with the intention that the Court declare the Federal Court competent to process and judge the case, given that the Inter-American Development Bank (IDB) – an international organization – was one of the defendants. The STJ ruled that the Federal Court of the 9th Environmental and Agrarian Court of Belém was competent.

Upon the return of the case files, the judge of the 9th Environmental and Agrarian Court of the Judicial Section of Pará issued a ruling declaring the case dismissed without prejudice, due to the inadequacy of the chosen legal avenue. The court determined that the claim concerned private property rights and, therefore, a class action lawsuit could not have been used.

AMOREMA and AMORETGRAP appealed the decision, arguing that a class action lawsuit was appropriate due to the collective, transindividual, and indivisible nature of the rights debated in the action, or subsidiarily, because it deals with homogeneous individual rights. They also raised procedural issues, stating that the judgment was given without prior hearing of the parties. They requested a reconsideration of the judgment and, subsidiarily, the reversal of the sentence so that the process can be analyzed regularly by the first instance court, or a declaration of its nullity. The Federal Public Prosecutor's Office (MPF) also filed an appeal. It argued that the action seeks to protect the fundamental rights of traditional peoples and communities to the exclusive enjoyment of their territories, dealing with practices of "carbon land grabbing" or "carbon credit land grabbing," which are matters of public interest and related to environmental protection. He pointed out that the sentence was handed down without prior consultation with the Federal Public Prosecutor's Office, in violation of the Public Civil Action Law. He requested the annulment of the sentence so that the process can be analyzed in a regular manner by the first instance court. The defendant companies filed counter-arguments to the appeal, which has not yet been judged.

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Main norms mobilized

• Federal Constitution (CRFB/88)
• ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)
• National System of Conservation Units Law - SNUC (Federal Law 9.985/2000)

Case timeline

Case documents