Case Name: Ministério Público Federal e INCRA vs. Degmar Serrath de Menezes Caetano (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 Degmar Serrath de Menezes Caetano due to the deforestation of an area of 115.91 hectares, between 2015 and 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendant's occupation of the land was illegal because it is an area included in 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 class action lawsuit is part of a set of 22 actions filed by the Federal Public Prosecutor's Office (MPF) as a result of the investigation carried out in civil inquiry no. 1.13.000.001719/2015-49, concerning illegal deforestation within the Antimary Agrarian-Extractive Settlement Project (PAE), but against different defendants. The lawsuit's arguments are 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) resulting from the illegal deforestation of the area, calculated at 126,491.02 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 are made: (i) reparation for the damages caused by the illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual environmental material damages; (iv) payment of compensation corresponding to climate damages; and (v) payment of compensation corresponding to collective moral damages.

Subsequently, INCRA was included in the active party as a co-litigant assistant to the plaintiff.

In its defense, the defendant argued for the dismissal of the action. Among other arguments, it alleged that there is an overlap in the Rural Environmental Registry (CAR) and that, in reality, the deforested area is smaller than that indicated in the initial petition. Furthermore, it argued that the compensation amounts are excessive; that there is no expert report confirming the value of the climate damage; and that there is a lack of objective parameters for determining the values of interim and residual damages.

A judgment was issued recognizing the relationship between deforestation and climate change, presenting extensive arguments on climate change and civil liability for climate damage, acknowledging said damage in the case. The requests were partially granted, ordering the defendant to: a) comply with the obligation to restore the degraded area according to the Degraded Area Recovery Plan (PRAD); b) refrain from using the area, in order to allow natural regeneration; c) pay compensation for material damages related to interim and residual environmental damages, the value of which will be subject to settlement of judgment; d) pay compensation for climate damages caused by deforestation (using the assigned areas as a parameter), the value of which will be subject to settlement of judgment, using as a basis for calculating the amount of carbon emitted the Technical Note prepared by the Amazon Research Institute (IPAM) and, for pricing purposes, the value of 5 dollars per ton, according to the Amazon Fund; e) to the payment of compensation for collective moral damages, in the amount of 5% of the total material damages determined in the settlement of the judgment. Finally, it declared the respective CAR null and void and allocated all the resources obtained to the Fund for Diffuse Rights.

The defendant filed an appeal requesting the annulment of the judgment for the purpose of conducting a judicial expert assessment and, subsidiarily, its amendment to revise the methodology for calculating climate damages, to eliminate or reduce the amounts of the award for collective moral and material damages, among other things. Among the arguments presented, it defended the lack of a rule that regulates the quantification of CO2 emissions for compensation purposes, establishes its value, and allows for its independent judicial collection.

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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