Brazilian Climate Litigation Platform
Type of Action
Civil Public Action (ACP)
Court of origin
State Court or Court of the Federal District
Filing Date
11/2019
Original case number
5044993-20.2019.8.21.0001
State of origin
Rio Grande do Sul (RS)
Link to court of origin’s consultation website
https://www.tjrs.jus.br/novo/busca/?return=proc&client=wp_indexSummary
This is a Public Civil Action (ACP), with a request for urgent relief, filed by the Arayara Association for Education and Culture and the Z-5 Fishermen's Colony against the company Copelmi Mineração Ltda. and FEPAM (State Foundation for Environmental Protection) regarding the Guaíba Mine Project. Copelmi intends to implement the Guaíba Mine Project on the banks of the Jacuí River. The project is considered the largest open-pit coal mine in Brazil and has a high pollution potential. The undertaking is located in areas inhabited by traditional communities, such as the Z-5 Fishermen's Colony and indigenous territories. It is related to the State Policy on Mineral Coal and the Petrochemical Hub of Rio Grande do Sul (RS) – created by State Law 15.047/2017 – which the plaintiffs claim were established without public consultation. They allege that, after two public hearings, the period for submitting comments and opinions ended. They claim that other hearings were requested by affected communities, but the requests were ignored. Furthermore, they point out that there was no prior, free, and informed consultation with the fishermen of the Z-5 Colony. They assert that Copelmi ignored the area of influence of the Atlantic Forest biome and the rights of the affected communities in the Environmental Impact Study/Environmental Impact Report (EIA/RIMA). They argue that socio-environmental impacts must encompass the cultural or symbolic dimension of social life, and that the Public Authority has a legal duty to prevent damage and, should it occur, the obligation to adopt all necessary measures to reduce its effects. They allege a violation of Convention 169 of the International Labour Organization (ILO), the Federal Constitution, and the State Environmental Code of Rio Grande do Sul, which renders the licensing process for the Guaíba Mine Project null and void. Among other issues, they request: (i) as a preliminary measure, the suspension of the project's licensing process; and (ii) on the merits, the prohibition of the installation of the Guaíba Mine Project at the location specified in the EIA/RIMA carried out, as it contradicts the fight against climate change consolidated in the National Policy on Climate Change – PNMC (Federal Law 12.187/2009) and, subsidiarily, the declaration of nullity of the licensing process.
A preliminary decision was issued denying the request for urgent relief, based on the following grounds: (i) the lack of opportunity for the fishermen of Colony Z-5 to express their views had not been unequivocally proven; (ii) there was no urgency at that time, as the preliminary license does not yet authorize the start of the company's activities; and (iii) FEPAM had not yet prepared an opinion on the EIA/RIMA after the company's additions, so it could not be stated that the fishermen were not considered in the preparation of the study.
In its defense, FEPAM argues, among other things, that: (i) the initial complaint is flawed because there is no basis for the request to prohibit the installation of the Guaíba Mine Project, which would violate the PNMC (National Policy for Climate Change), among other reasons; (ii) the Judiciary cannot assess the environmental viability of the project, especially its compatibility with the PNMC; (iii) the licensing process is regular, since public hearings were held and no impediment to the participation of the fishermen of the Z-5 Colony was found, also arguing that the EIA (Environmental Impact Assessment) does not need to be exhaustive, and that it is possible to make additions after the granting of the environmental license.
Copelmi also filed a response, alleging, among other points, that: (i) the requests to prohibit the project in relation to the violation of the PNMC and the request for annulment lack cause of action; (ii) the environmental licensing of the project held public hearings in the municipalities that comprise its area of direct influence, in compliance with environmental legislation; (iii) the issues raised by the plaintiffs were duly analyzed in the EIA/RIMA; (iv) ILO Convention 169 does not apply to artisanal fishermen in the Jacuí Delta region, as they do not qualify as a tribal people; and (v) the Guaíba Mine Project will not cause a direct impact on fishermen.
Subsequently, a decision was issued ordering the consolidation of this action with Public Civil Action No. 9065931-65.2019.8.21.0001, filed by the Public Prosecutor's Office of the State of Rio Grande do Sul (MPRS) regarding the Petrochemical Complex, due to the connection between the claims. Because of incompatibility between the electronic systems of the Court of Rio Grande do Sul, this Public Civil Action was redistributed under number 9019860-68.2020.8.21.0001, and subsequently attached to the Public Civil Action concerning the Petrochemical Complex.
The licensing procedure for the Mina Guaíba project was declared null and void within the scope of Public Civil Action No. 5069057-47.2019.4.04.7100 (Arayara Association of Education and Culture and others vs. FUNAI, Copelmi Mineração Ltda. and FEPAM). Therefore, the court decided to suspend the present Public Civil Action for six months, in order to await the exhaustion of the appeals phase and the confirmation or not of the decision in the aforementioned action.
The case was transferred to another electronic system of the Court, and is now numbered 5125450-05.2020.8.21.0001. With the deadline having expired, the procedural suspension has been lifted.
Copelmi announced its withdrawal from the Guaíba Mine Project and requested the archiving of the environmental licensing process. Therefore, the judge recognized the loss of the object of the project and dismissed the case without prejudice. The case was archived.
Plaintiff
Type of plaintiff
Defendant
Type of defendant
Main norms mobilized
Brazilian biomes
Atlantic Forest (tropical forest)Greenhouse Gas (GHG) emission sectors
Status
Completed
Type of case
Routine case
Climate in environmental licensing
Mentioned
Environmental and/or climate justice approach
Implicit in the content of the action
Claim alignment with climate protection
Aligned
Measures Addressed
Climate approach
Contextual approach
Document type
Decision
Origin
Vara Regional do Meio Ambiente
Date
03/2025
Brief description
Decision to terminate the proceedings without resolution of merit due to loss of purpose.
Document type
Decision of a single judge
Origin
10ª Vara da Fazenda Pública do Foro Central da Comarca de Porto Alegre
Date
03/2022
Brief description
Decision that suspends the progress of the process for six months, 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), in order to await the exhaustion of the appeal phase and the confirmation or not of the decision of the referred process.
Document type
Court order
Origin
10ª Vara da Fazenda Pública do Foro Central da Comarca de Porto Alegre Data 09/2020 10ª Vara da Fazenda Pública do Foro Central da Comarca de Porto Alegre
Date
09/2020
Brief description
Order recognizing the connection between this action and Public Civil Action (ACP) 9065931-65.2019.8.21.0001, which discusses the Carbochemical Complex in the State. Due to the incompatibility of the electronic systems of the Court of the State of Rio Grande do Sul, it ordered the dismissal of the case and the redistribution of the action for later reunion with the ACP of the Carbochemical Complex.
Document type
Answer
Origin
Copelmi Mineração Ltda.
Date
03/2020
Brief description
It is argued, among other arguments: (i) that the requests for prohibition of the project due to violation of the PNMC and the request for nullity lack cause of action; (ii) that the environmental licensing of the project held public hearings in the municipalities that make up its area of direct influence, in compliance with environmental legislation; (iii) that the issues raised by the authors in the initial complaint were duly studied in the EIA/RIMA; (iv) Convention 169 of the International Labor Organization (ILO) does not apply to artisanal fishermen in the Jacuí Delta region; and (v) the Mina Guaíba Project will not have a direct impact on fishermen.
Document type
Answer
Origin
Fundação Estadual de Proteção Ambiental Henrique Luís Roessler (FEPAM)
Date
02/2020
Brief description
The following are defended: (i) the inadequacy of the initial claim, since, among other arguments, there would be no basis for the request to prohibit the installation of the Guaíba Mine Project, which would violate the PNMC; (ii) the impossibility of the Judiciary evaluating the environmental viability of the project, especially its compatibility with the PNMC; (iii) the regularity of the licensing process, since public hearings were held and no obstacles to the participation of the fishermen of Colônia Z5 were found, as well as there would be no need for the EIA to be exhaustive, with supplements being possible after the granting of the environmental license.
Document type
Decision of a single judge
Origin
10ª Vara da Fazenda Pública do Foro Central da Comarca de Porto Alegre
Date
12/2019
Brief description
Preliminary decision denying the request for urgent relief. There are no relevant points for discussing the climate issue.
Document type
Complaint
Origin
Instituto Internacional Arayara de Proteção ao Patrimônio Público e Social, Educacional e Cultural, do Meio Ambiente, do Consumidor, da Ordem Econômica, dos Direitos Humanos, da Democracia e do Patrimônio Artístico, Cultural, Estético, Histórico, Turístico, Ambiental e Paisagístico (Associação Arayara de Educação e Cultura); e Colônia de Pescadores e Aquicultores Z-5 (Colônia de Pescadores Z-5)
Date
11/2019
Brief description
It is requested: (i) as a preliminary injunction, the suspension of the licensing process for the Mina Guaíba project; and (ii) on the merits, the prohibition of installing the project at the location specified in the Environmental Impact Study/Environmental Impact Report (EIA/RIMA) carried out, as it contradicts the fight against climate change consolidated in the National Policy on Climate Change – PNMC (Federal Law 12,187/2009) and, subsidiarily, the declaration of nullity of the licensing process.