Case Name: Ministério Público Federal vs. Ricardo Salles e União Federal (Administrative Misconduct Action)

Summary

This is a Civil Action for Administrative Impropriety, with a request for precautionary removal from office, in which the Federal Public Prosecutor's Office (MPF) alleges the practice of intentional acts that violated the constitutional duty to protect the environment by the then Minister of the Environment, Ricardo Salles. It indicates that the former Minister, through actions, omissions, practices, and speeches, allegedly promoted the dismantling of environmental policies and the undermining of legal precepts, by favoring interests that have no relation to the purpose of the Ministry, in violation of the constitutional principles that guide Public Administration. The MPF cites a vast set of acts by the former minister that allegedly contributed to the intentional dismantling of environmental protection structures, based on four pillars: (i) normative dismantling; (ii) dismantling of transparency and participation bodies; (iii) budgetary dismantling; and (iv) oversight dismantling. Regarding the regulatory dismantling, it indicates four normative acts considered illegal and abusive: Decree 10.347/2020, which transferred the granting power for public forests from the Ministry of the Environment (MMA) to the Ministry of Agriculture, Livestock and Supply (MAPA); MMA Dispatch 4.410/2020, which allowed the regularization of illegal deforestation in permanent preservation areas in the Atlantic Forest biome; Decree 9.672/2019, which extinguished the Secretariat for Climate Change and Forests; and Joint Ordinance 298/2019, which altered the composition of the Federal Environmental Compensation Committee. The argument related to climate is highlighted in the discussion regarding the extinction of the Secretariat for Climate Change and Forests, which worked to combat climate change and actions that generate potential imbalance in the planet's ecosystem, with the Federal Public Prosecutor's Office alleging that such an act would signal that the matter would not be a priority for the federal government. In this regard, it emphasizes that there has been no re-evaluation of the topic, which has practically disappeared from the Ministry's structure. It states that this is distancing Brazil from efforts to fulfill international climate commitments undertaken under the United Nations Framework Convention on Climate Change (UNFCCC), especially the Copenhagen Accord (2009) and the Paris Agreement (2015), enacted by Federal Decree 9.073/2017, and internal commitments within the scope of the National Policy on Climate Change – PNMC (Federal Law 12.187/2009). Regarding the dismantling of transparency and participation bodies, the document alleges reduced civil society participation in the National Environment Council (CONAMA), the removal of information from the official website of the Ministry of the Environment (MMA), interference in the dissemination of deforestation data by the National Institute for Space Research (INPE), and the restriction of information related to the activities of the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) and the Chico Mendes Institute for Biodiversity Conservation (ICMBio). Regarding budgetary dismantling, it questions the reduction of budgetary resources allocated to IBAMA and the inactivation of the Amazon Fund through the extinction of its operational and guiding bodies. It is noteworthy that, regarding the paralysis of the Amazon Fund, dedicated to financing REDD+ actions linked to the reduction of Greenhouse Gas (GHG) emissions, the Federal Public Prosecutor's Office (MPF) mentions the connection between this paralysis and the lack of funding and implementation of the Plan for Prevention and Control of Deforestation in the Legal Amazon (PPCDAm), foreseen in the National Policy on Climate Change (PNMC). The increase in deforestation and the Ministry's inaction in combating it are once again linked to the failure to meet climate commitments and deforestation reduction targets set out in the PNMC (National Policy on Climate Change), UNFCCC, Paris Agreement, and Copenhagen Accord. Regarding the weakening of oversight, it is stated that the former Minister, through his actions, was contributing to hindering the work of career civil servants, which is especially relevant in a context of increased deforestation. Given this broad picture of the weakening of the protection of the fundamental right to an ecologically balanced environment, the Federal Public Prosecutor's Office (MPF) requested, as a preliminary measure, the precautionary removal of Ricardo Salles from the position of Minister of the Environment, and presented a definitive request that the aforementioned actions be declared improper, thus condemning him to the loss of his public office.

The judge at first instance ruled against the preliminary injunction request.

In its defense, the Federal Government denied the existence of any illicit act on the part of former Minister Ricardo Salles. It invoked the principle of separation of powers, asserting that it is inappropriate to require a judicial decision regarding the choice of the Head of the Federal Executive Branch concerning the appointment of public positions of trust. It emphasized that there is no legal impediment to the various acts imputed to it, as they are decisions of administrative merit, within the scope of the public manager's competencies to direct public policies, carried out in accordance with the environmental agenda and in compliance with the laws and the Constitution. It argued that there is no basis for alleging an act of impropriety, stressing that the environmental damage attributed to the defendant, especially the increase in deforestation, occurs due to various factors that are distant from and unrelated to the personal acts performed by a Minister of State.

In his defense, Ricardo Salles alleged the non-existence of an act of impropriety, claiming that the action was an attempt to impose on the Judiciary the power to interfere in political choices. Specifically regarding the environmental and climate issue, he stated the absence of proof or indication of alleged predatory intent, as well as any evidence of the overriding of public, diffuse, or collective interests by Ricardo Salles' private interests. The defense maintains that there was no normative disorganization, contrary to what was alleged in the initial complaint. It also argued that there was no disorganization of transparency and participation bodies, since government policies can vary without this immediately signifying administrative impropriety. It also rejected the argument of the alleged decrease in social representation on councils with the enactment of Decree No. 9,806/2019. Regarding the removal of information containing maps of priority areas for biodiversity conservation from the internet, the defendant alleged the initial complaint was flawed, emphasizing that this claim is based solely on journalistic "news" reports, which are not confirmed by simply accessing the links attached to the case file. Regarding the alleged interference in the dissemination of data by INPE (National Institute for Space Research), the defendant stated that it has no influence over the agency, as it is a research unit subordinate to the Ministry of Science, Technology and Innovation (MCTI). Concerning the undue restriction of institutional communication, the defendant argued that the initial complaint was flawed due to a lack of supporting evidence and an insufficient description of the facts. The defendant further argued that there was no budgetary disruption, since it is not within the competence of the Minister of State to draft or discuss the Budget Law. The defendant emphasized that there were no dismissals of employees with improper purpose, and also refuted the claim that there was no risk to employees in their field activities or that the defendant's management had impacted their safety in any way. Finally, he concluded by emphasizing the non-existence of an act of impropriety due to the absence of a material violation of the norm and the absence of intent, requesting, preliminarily, the immediate dismissal of the action, in favor of the retroactive application of the more lenient norm – with the new wording of Law 8.429/92, by Law 14.240/21. Subsidiarily, he alleged the need for the immediate dismissal of the action due to the lack of competence of the defendant to perform the acts embodied in the decrees and the absence of a causal relationship with the alleged illicit acts, affirming the manifest non-existence of an act of administrative impropriety. Should the previous arguments be overruled, alleging the inadequacy of the initial pleading due to the atypical nature of the facts presented in the accusatory pleading, as well as the absence of individualization and evidentiary basis demonstrating the occurrence of the imputed conduct, he requested that the initial pleading be rejected. On the merits, it requested that the initial claim be dismissed as unfounded and that the Public Prosecutor's Office be condemned for bad faith litigation.

A judgment was issued rejecting the claims and dismissing the action. It concludes that the conduct attributed to the defendant was not a crime and that there were no acts of administrative misconduct, given the changes introduced by Law 14.230/2021 to Article 11 of Law 8.429/92, which eliminated the generic classification of acts that violate the principles of public administration and now requires explicit classification of the conduct, as well as the lack of adaptation of the plaintiff's claim to the new legal provisions, since it would be up to the Federal Public Prosecutor's Office to impute to the defendant one of the conducts expressly described in the legislation.

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Main norms mobilized

• Article 225 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 Environment Policy Act - PNMA (Federal Law 6.938/1981)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• National System of Conservation Units Law - SNUC (Federal Law 9.985/2000)
• Paris Agreement (Federal Decree 9.073/2017)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

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