Case Name: Associação Arayara de Educação e Cultura vs. Copelmi Mineração Ltda. e FEPAM (Guaíba Mine Project and hydrological risks)

Summary

This is a Public Civil Action (ACP), with a request for provisional urgent protective measures of an incidental nature, filed by the Arayara Association for Education and Culture against Copelmi Mineração Ltda., FEPAM, and the National Water Agency (ANA). It is alleged that the implementation of the Guaíba Mine Project, which aims to be the largest open-pit coal mine in Brazil, will cause harmful impacts to the inhabitants of the Porto Alegre metropolitan region, in the state of Rio Grande do Sul, especially due to hydrological risks. A project of this magnitude has a high potential for water pollution. The plaintiff organization points out flaws in the Environmental Impact Study/Environmental Impact Report (EIA/RIMA) of the project, neglecting the fulfillment of important licensing phases, such as holding public hearings with directly and indirectly affected communities. The author argues that the project poses a pollution risk, especially to the Jacuí River, which contributes 86.3% of the average flow of Lake Guaíba, responsible for supplying drinking water to several municipalities, such as Porto Alegre, Canoas, Eldorado do Sul, Guaíba, and Barra do Ribeiro. She highlights the need to analyze the extent of the potential environmental damage resulting from the project and its synergies with other infrastructure planned for the region. She further argues that the Guaíba Mine Project will impact the balance of water resources, which is inextricably linked to climate change, thus triggering the National Climate Change Policy – PNMC (Federal Law 12.187/2009). This is because actions such as the pollution of water sources, diversion of watercourses, lowering of groundwater levels, drainage of aquifers, among other harmful measures related to the Project, are directly or indirectly linked to climate change. Among other points, the preliminary injunction requests the suspension of the licensing process for the Guaíba Mine Project until the merits of the Public Civil Action are judged, so that the installation of the mine is prohibited and, on the merits, (i) the prohibition of the installation of the project in the originally planned location, due to the irreversible environmental damage it will cause to the region, (ii) the declaration of nullity of the environmental licensing procedure with the initiation of a new procedure that considers all risks and (iii) the preparation of an emergency action plan, with a view to mitigating the consequences of any environmental damage.

Following the preliminary statements from the defendants, a decision was issued recognizing the lack of standing of ANA (National Water Agency) and, consequently, the lack of jurisdiction of the Federal Court to process and judge the action. Therefore, the action was redistributed to the Court of Justice of the State of Rio Grande do Sul (TJRS) under number 5002559-45.2021.8.21.0001, and is now being processed before the 1st Court of the 10th Public Treasury Court of the Central Forum of the Porto Alegre District. In this regard, it is noteworthy that the present action was initially filed in the Federal Court of Rio Grande do Sul (JFRS), but was subsequently transferred to the State Court of Justice due to the lack of standing of ANA.

Due to the licensing procedure for the Mina Guaíba project having been declared null and void within the scope of Public Civil Action 5069057-47.2019.4.04.7100 (Arayara Association of Education and Culture and others vs. FUNAI, Copelmi Mineração Ltda. and FEPAM), the court in this action decided to suspend this process for six months, in order to await the exhaustion of the appeal phase and the confirmation or not of the decision in the aforementioned Public Civil Action.

Subsequently, a judgment was issued dismissing the case without prejudice, due to the supervening loss of the object of the proceedings, given Copelmi's withdrawal from the Guaíba Mine Project and the consequent archiving of the environmental licensing process. The judgment became final and the case was archived.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• Article 5th of the Federal Constitution (CRFB/88)
• Federal Constitution (CRFB/88)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• National Water Resources Policy (Federal Law 9.433/1997)

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