Case Name: ONG Costa Legal e outros vs. Município de Florianópolis e outros (Environmental governance for Lagoa da Conceição)

Summary

This is a Public Civil Action (ACP), with a request for preliminary injunction, filed by the NGO Costa Legal, UFECO, and Associação Pachamama, with legal assistance from the Research Group on Environmental Law and Political Ecology in the Risk Society (GPDA) and the Research Group on the Observatory of Ecological Justice (OJE), both from the Federal University of Santa Catarina (UFSC). Subsequently, the Federal Public Prosecutor's Office (MPF), the Public Prosecutor's Office of the State of Santa Catarina (MPSC), and the National Association of People Affected by Dams (ANAB) joined the action. The action was filed against the Municipality of Florianópolis, FLORAM, the State of Santa Catarina, IMA/SC, CASAN, and ARESC. The ACP aims at the implementation of a socio-ecological governance system for the protection, control, monitoring, and oversight of the ecological integrity of Lagoa da Conceição, located in Florianópolis, Santa Catarina, through the adoption of structural measures. The authors present Lagoa da Conceição as a subject of ecological rights and affirm that, due to the organized irresponsibility in the functioning of the current institutional structure, there is an unconstitutional state of affairs. They highlight that its surroundings contain a complex mosaic of dunes, coastal vegetation, and forests, integral parts of the Atlantic Forest biome, demonstrating an interface between terrestrial and marine ecosystems. They explain the importance of the ecosystem services provided by the Lagoon, especially for greater adaptive capacity to climate change in ecosystems and nearby communities, which are more vulnerable to the effects of rising global temperatures. They emphasize the Lagoon's role in local sociocultural history, highlighting the importance of water quality for the identity of the region's communities. They stress that the risks of deterioration and collapse of the Lagoon's ecosystem integrity are evident and urgent, generating harm to the effectiveness of fundamental rights and causing structural problems related to ineffective management and a lack of effective and systemic ecological governance by the responsible actors. They claim that the impacts of human activities on ecological systems threaten various forms of life, therefore constituting a matter of ecological justice. Finally, they request, among other things: (i) recognition of the active legitimacy of the plaintiff associations to claim, in addition to the protection of collective rights to the environment, the protection of specific rights of the Lagoa da Conceição; (ii) recognition of the existence of a structural problem so that the Judicial Chamber for the Protection of Lagoa da Conceição (CJ-PLC), or a similar body, may be established on an interim basis; (iii) based on the information provided by the CJ-PLC, a determination to establish a Judicial Plan for the Protection of Lagoa da Conceição (PJ-PLC); (iv) the determination that the defendants, based on the results of the PJ-PLC, establish and maintain a Permanent Chamber for the Protection of Lagoa da Conceição (CP-PLC), to continue the activities and structural measures identified, to be executed by the CJ-PLC; and (v) the declaration of the Lagoon as a natural entity holding specific rights.

The preliminary injunction was granted, ordering the creation of the CJ-PLC, with the purpose of assisting the Court in adopting the necessary structural measures to guarantee the ecological integrity of the natural entity, to be composed with the participation of the defendants and interested parties in the case. Furthermore, the decision accepted the inclusion of the Federal Public Prosecutor's Office (MPF) and the Public Prosecutor's Office of Santa Catarina (MPSC) as plaintiffs.

The State of Santa Catarina and CASAN filed interlocutory appeals (AI) against this decision (AI 5025622-12.2021.4.04.0000 and AI 5029519-48.2021.4.04.0000, respectively), both requesting a stay of execution, and which, among other preliminary points, similarly argue: (i) the non-verification of the requirements necessary for granting urgent relief; (ii) that granting the injunction exhausts the object of the action; and (iii) that the decision violates the separation of powers.

Monocratic decisions were issued, within the scope of the appeals, concluding with the partial granting of the suspensive effect, establishing that the CJ-PLC is a merely advisory body, not equivalent to a public body, and that it does not have decision-making power or the power to impose obligations on any party in the process, nor does it enjoy prerogatives for the use of public resources, in addition to its actions being limited only to the subject matter of the legal actions related to the preservation of the Lagoon that are being processed before the court of origin. This understanding was subsequently confirmed in the judgment of the appeals, in rulings that partially granted the appeals to affirm the advisory nature of the CJ-PLC and the absence of decision-making power, the power to impose obligations, and the use of public resources. Both rulings became final and the appeals were definitively closed.

In the context of the original action, the State of Santa Catarina filed a defense, arguing, among other points: (i) the incompetence of the Federal Court, since the Union, or its entities, are absent from any of the parties to the action; (ii) the absence of a claim against the State; (iii) the passive illegitimacy of the federative entity, with only the IMA/SC being involved; (iv) the exclusively local interest of the claim; (v) the absence of legal provision permitting the creation of the Judicial Chamber; (vi) the redundancy in relation to other committees created by law; (vii) the exhaustion of the object of the action due to measures taken in a related action (ACP 5004793-41.2021.4.04.7200); and (vii) that the requested measures violate the principle of separation of powers, and the requests for provisional relief should be denied. Finally, it requests (i) the recognition of the incompetence of the Federal Court; (ii) their exclusion from the case; and (iii) the dismissal of the claims.

CASAN also contested the initial claim on several grounds. It stated that the claim is structured around vague, abstract, and common-sense expressions, criticizing the request regarding the Judicial Chamber on several points. It cited the decision rendered in the context of the AI (Incident of Appeal) regarding the new contours given to the role of the requested collegiate body. Furthermore, it asserted that the requested Judicial Chamber does not offer any difference compared to existing popular collegiate bodies. It argued that there is lis pendens with respect to other lawsuits with the same claim. It asserted that there is no unconstitutional state of affairs, refuting the alleged lack of environmental governance. Finally, it requested the dismissal of the case without prejudice, or, if the merits are analyzed, the dismissal of the Public Civil Action.

Subsequently, IMA/SC also filed a response. In its defense, it stated that there was a lack of procedural interest and emphasized the discretionary power of the Executive Branch and its autonomous agencies, as well as stating that the proposed Chamber has no legal basis. It requested the dismissal of the case without prejudice against IMA and, alternatively, the rejection of the claim as formulated. Nevertheless, it highlighted its lack of opposition to the creation of the CP-PLC as long as it has a purely advisory character.

The Municipality of Florianópolis and FLORAM filed a response stating that the plaintiffs' claim eliminates the autonomy of the municipal Executive Branch and creates obligations based on generic and unsubstantiated allegations. They asserted that there is no justification for the creation of the external body, given that the public entities have fulfilled all their legal obligations. Finally, they requested: (i) the dismissal of the claims, in respect of the principle of separation of powers and the autonomy of administrative bodies; or (ii), should the Court decide otherwise, maintaining the CJ-PLC, the limitation of the Chamber's scope to a merely advisory body.

ARESC contested the initial claim, highlighting the actions taken in the sewage system. Furthermore, it emphasized the autonomy and independence of its decisions. Therefore, it requested that the claim against ARESC be dismissed, arguing that it has been fulfilling its duties and expressing its lack of opposition to the Chamber's participation if it is merely advisory.

A decision was rendered in the first instance in which the court dismissed the preliminary objections (i) of lack of jurisdiction of the Federal Court, (ii) of lack of standing of the plaintiff, (iii) of lack of passive standing of the State of Santa Catarina and (iv) of the occurrence of lis pendens and violation of res judicata.

Following a conciliation hearing between the parties, a ruling was issued in April 2022 approving the final proposal for the composition of the Judicial Chamber for the Protection of Lagoa da Conceição (CJ-PLC) and its Internal Regulations.

In October 2024, the first instance court issued a preliminary injunction ordering (i) the implementation of the Lagoa Viva Project for the recovery of the Lagoa da Conceição ecosystem; (ii) the creation of a native seedling nursery as an emergency measure to restore degraded areas around the lagoon; and (iii) the immediate renewal of the Trato pela Lagoa Program so that CASAN, together with other interested parties, reestablishes inspection, sanitary regularization, and environmental awareness activities in the region, establishing a 60-day deadline for the implementation of the measures, under penalty of a fine of R$ 100,000.00 for the defendants. According to the court, this decision was based on the conclusion of the CJ-PLC that the adoption of measures to mitigate the pollution of Lagoa da Conceição would be indispensable and urgent to prevent the environmental damage from becoming irreversible.

Subsequently, CASAN filed Appeal No. 5039438-56.2024.4.04.0000 against the decision, arguing, in summary, that (i) the CJ-PLC's role was limited to assisting the court in making decisions; and (ii) the decision had exceeded the limits of the initial petition, determining obligations beyond those requested by the plaintiff. In November 2024, the Federal Regional Court of the 4th Region issued a decision granting the request to suspend the effects of the preliminary injunction decision.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• Article 5th of the Federal Constitution (CRFB/88)
• Atlantic Forest Law (Federal Law 11.428/2006)
• Federal Constitution (CRFB/88)
• Forest Code (Federal Law 12.651/2012)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• National System of Conservation Units Law - SNUC (Federal Law 9.985/2000)
• National Water Resources Policy (Federal Law 9.433/1997)

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