Case Name: Ministério Público do Estado do Rio de Janeiro vs. Município de Niterói (Neighborhood Impact Study)

Summary

This is a Public Civil Action (ACP) filed by the Public Prosecutor's Office of the State of Rio de Janeiro (MPRJ) against the Municipality of Niterói, aiming to compel the defendant to conduct a Neighborhood Impact Study (EIV) prior to granting a license for the construction of large residential and commercial buildings, with more than six floors, in the Icaraí neighborhood, in Niterói. The plaintiff argues that the urban infrastructure of the neighborhood cannot accommodate greater population density, and that real estate expansion has harmed the quality of life of the local population. It argues that new building permits are being granted without the requirement of a prior urban planning study, in violation of municipal urban policies, especially the Master Plan (Municipal Law 1.157, updated by Municipal Law 2.123) and the City Statute (Federal Law 10.257/01). It states that the expansion of the real estate market must occur in accordance with municipal planning, preserving urban sustainability and environmental protection. In this sense, in anticipation of a final injunction, it requests that the defendant be ordered to conduct a prior Environmental Impact Assessment (EIA) for all large-scale real estate developments, as a condition for obtaining a building permit, in the Icaraí neighborhood. On the merits, among the requests, it seeks confirmation of the injunction and that the defendant be ordered to compensate the community for the moral and material damages suffered due to the omission of the EIA.

In a preliminary ruling, the court found that there was a risk of irreparable or difficult-to-repair damage. It ordered the defendant to proceed with the licensing of the questioned projects after obtaining prior approval from the Environmental Impact Assessment (EIA), under penalty of a fine.

In its defense, the Municipality of Niterói argued, preliminarily, the lack of standing of the plaintiff. It alleged that the claim in this Public Civil Action is already absorbed by the subject matter of a previous Public Civil Action (2009.002.051167-6). It argued that it is impossible to conduct a constitutional review of a municipal law within the context of a Public Civil Action. It maintained that the plaintiff's allegations are generic, and that conducting an Environmental Impact Assessment (EIA) for the aforementioned projects does not fall within the parameters established by the Municipal Legislative Branch that require such an assessment. It further argued that the Municipality has no civil liability for moral and material damages. It emphasized the lack of technical evidence capable of proving the plaintiff's allegations. It requested the revocation of the preliminary injunction. Among the requests made, it was (i) that the lawsuit be dismissed due to lack of standing, inadequacy of the chosen procedure, and lis pendens, and (iv) that the plaintiff's claim be dismissed as unfounded.

In its ruling, the court understood that the City Statute introduced several instruments that allow the state to take preventive measures to avoid imbalances in urban growth and guarantee minimum conditions for the occupation of habitable spaces, such as the Environmental Impact Assessment (EIA). It affirmed that it is an instrument for implementing the principles of prevention, precaution, and sustainable development. It considered that the criterion used by the Public Prosecutor's Office of Rio de Janeiro (MPRJ) for requiring the EIA is based on the law, which considers large-scale developments to be those with more than six floors. It reinforced that the right to quality of life necessarily requires a guarantee of an ecologically balanced environment, and that the City Statute, in outlining instruments for environmental protection, is linked to the collective system of diffuse rights. It did not grant the request for material and moral damages. The court partially granted the request, confirming the preliminary injunction and ordering the defendant to obtain prior approval of the Environmental Impact Assessment (EIA) for all large-scale real estate developments, whether multi-family residential or commercial, with more than six floors, in the Icaraí neighborhood, in the section corresponding to the urban areas IC-06, IC-07 (up to Pedra Itapuca), IC-08, IC-12, and IC-14, under penalty of a fine.

Subsequently, the Municipality of Niterói filed an appeal. In its ruling, the Seventeenth Civil Chamber of the Court of Justice of the State of Rio de Janeiro (TJRJ) emphasized that the right to an ecologically balanced environment (Article 225 of the Federal Constitution) includes urban planning as an integrating factor and the right to sustainable cities, which is a fundamental right related to the guiding principles of urban development (Article 182 of the Federal Constitution). It understood that the Environmental Impact Assessment (EIA) seeks to consider the positive and negative impacts of projects on the quality of life of the local population and surrounding areas. It highlighted that the principle of adaptation, included in the Paris Agreement (promulgated by Federal Decree 9.073/2017) and foreseen in the National Policy on Climate Change – PNMC (Federal Law 12.187/2009), obliges the reduction of the vulnerability of natural and human systems, such as cities, to the effects of climate change. The court considered that the action does not seek a declaration of unconstitutionality of a municipal law, but rather aims to enforce urban and environmental regulations in order to oblige the Municipality to require an Environmental Impact Assessment (EIA) before approving large-scale projects, with a view to reducing urban risks and ensuring the sustainability of cities. Therefore, the appeal was denied.

The Municipality of Niterói filed a Constitutional Claim (Rcl 35.699/RJ) with the Supreme Federal Court (STF) alleging a violation of the decision of the TJRJ (Court of Justice of Rio de Janeiro) and Binding Precedents 10 and 37. The Claim was dismissed in a single-judge decision and, after the filing of an Internal Appeal, in a final judgment. The First Panel of the STF understood that there was no violation of the plenary session clause, as per Binding Precedent 10, since the basis of the decision does not concern the unconstitutionality of the municipal law. It also concluded that the discussion concerns the prior approval of an Environmental Impact Assessment (EIA) for the granting of a license for the construction of large-scale projects, which is not related to Binding Precedent 37.

The Municipality of Niterói filed Special and Extraordinary Appeals against the appeal decision, which were admitted by the Third Vice-Presidency of the TJRJ (Rio de Janeiro State Court of Justice). The Special Appeal (REsp 1.923.322/RJ) was assigned to the Superior Court of Justice (STJ), where it was denied in a decision that recognized that the appealed judgment presented concrete and sufficient grounds to support its conclusions. The Extraordinary Appeal (RE 1.522.706/RJ) was assigned to the Supreme Federal Court (STF), which also denied its appeal, understanding that the appealed judgment did not diverge from the STF's jurisprudence regarding the possibility of judicial intervention in public policies aimed at realizing fundamental rights. The judgments became final and the case was closed in the first instance, with the commencement of the enforcement of the sentence.

The execution is deemed terminated, given the information from the Public Prosecutor's Office regarding the approval of Municipal Law No. 3,385/2019, which establishes the new Master Plan for the city, and the consequent fulfillment of the obligation by the defendant. The judgment is certified as final, with the case being duly closed and archived.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• Article 5th of the Federal Constitution (CRFB/88)
• City Statute (Federal Law 10.257/2001)
• Federal Constitution (CRFB/88)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• Paris Agreement (Federal Decree 9.073/2017)

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