Case Name: Ministério Público Federal e INCRA vs. Nilma Félix (Deforestation and climate damage in the Antimary Environmental Impact Assessment Program)

Summary

This is a Public Civil Action (ACP) filed by the Federal Public Prosecutor's Office (MPF) against Nilma Félix due to the deforestation of an area of 135.80 hectares in 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendant's occupation of the land was illegal because it is an area within an Agro-extractive Settlement Project (PAE), owned and of interest to the Federal Government, managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractive communities. This ACP is part of a set of 22 actions filed by the MPF as a result of the investigation carried out in civil inquiry no. 1.13.000.001719/2015-49, for illegal deforestation carried out within the Antimary Agro-extractive Settlement Project (PAE), but against different defendants. The argument for the action is based, among other points, on Brazilian Environmental Law, regarding the constitutional protection of the environment, the accusation of deforestation, civil liability propter rem for environmental damages, including climate damages, and collective moral damages. It also mentions, as an environmental liability, the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 77,583.75 tons of carbon dioxide, which are directly related to the Brazilian State's departure from its climate goals, out of step with national and international commitments assumed by Brazil in the National Policy on Climate Change – PNMC (Federal Law 12.187/2009) and the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests, the following is sought: (i) reparation for the damages caused by the illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual environmental material damages; (iii) payment of compensation corresponding to climate damages; and (iv) payment of compensation corresponding to collective moral damages.

INCRA joined the lawsuit as a co-litigant assistant to the plaintiff, and the defendant was declared in default.

In its judgment, the court ordered the defendant to (i) restore the degraded area; (ii) pay compensation for material damages related to interim and residual environmental damages, in an amount to be determined during the settlement phase; (iii) pay compensation for climate damages caused by deforestation, in the amount of R$ 2,133,553.12; and (iv) pay compensation for collective moral damages in the amount of R$ 2,000.00 per hectare deforested. The funds obtained from this action shall be allocated to the Fund for Diffuse Rights. The judgment recognized the existence of climate damage, unlawful conduct, and causal link, even though the defendant was not responsible for the deforestation itself, benefiting from the damage caused by a third party. For the calculation of the value of climate damage, the price of US$ 5.00 per ton of CO2e was adopted, according to Ordinance No. 176/2023.

The judgment has become final and the process is currently in the judgement enforcement phase.

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Main norms mobilized

• Article 170 of the Federal Constitution (CRFB/88)
• Article 225 of the Federal Constitution (CRFB/88)
• Article 5th of the Federal Constitution (CRFB/88)
• Federal Constitution (CRFB/88)
• Forest Code (Federal Law 12.651/2012)
• 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)
• Paris Agreement (Federal Decree 9.073/2017)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

Case timeline

Case documents