Brazilian Climate Litigation Platform
Type of Action
Civil Public Action (ACP)
Court of origin
State Court or Court of the Federal District
Filing Date
12/2010
Original case number
0082072-08.2010.8.26.0224
State of origin
São Paulo (SP)
Link to court of origin’s consultation website
http://esaj.tjsp.jus.br/cpopg/open.doSummary
This is a Public Civil Action (ACP) filed by the Public Prosecutor's Office of the State of São Paulo (MPSP) against the company KLM - Royal Dutch Airlines for alleged environmental damage resulting from commercial activities carried out by the defendant at São Paulo International Airport, in Cumbica, Guarulhos, through the landing and takeoff of its aircraft. The action requests that the company be ordered to take specific actions or, subsidiarily, to pay compensation for environmental damage related to the emission of Greenhouse Gases (GHG), negatively impacting climate change. The main request consists of an obligation to restore forest in an area within the same hydrographic basin, in sufficient quantity to fully absorb the GHG emissions and other pollutants resulting from the activity. In its defense, the defendant company alleged that the plaintiff filed 35 lawsuits identical to the present one and that the Court of Justice of the State of São Paulo (TJSP) immediately recognized the inadequacy of 26 of the initial petitions and had the opportunity to rule on the merits of the action in only one case, when judging case 224.01.2010.082070-8, filed against EMIRATES AIRLINES, having dismissed the claims. In this regard, the defendant company argued (i) its lack of standing to be sued, given that it carries out its activity in accordance with the determinations of the National Civil Aviation Agency (ANAC), and cannot be held responsible for complying with what is authorized and imposed on it by the Public Authority; and (ii) the legal impossibility of the claim, since there would be no illicit activity carried out by the defendant.
Initially, the Court understood that the Defendant possessed government authorization to operate certain routes and that the emissions resulting from the normal exercise of said activity were already included within the scope of that authorization.
In an appeal before the São Paulo State Court of Appeals (Appeal No. 0082072-08.2010.8.26.0224), the São Paulo State Public Prosecutor's Office (MPSP), on the merits, again requested the mitigation and reparation of environmental damages caused by the defendant. Subsequently, the National Civil Aviation Agency (ANAC) joined the action, requesting intervention as a third party and the transfer of the case to the federal court. A judgment was issued in the TJSP rejecting the preliminary objection presented by the MPSP and, considering the ANAC's statement, decided to transfer the case to the Federal Regional Court of the 3rd Region (TRF-3). It should be noted that this action was initially filed in the São Paulo State Court of Appeals (TJSP), but was later transferred to the Federal Court due to ANAC's request for intervention. The action was registered in the TRF-3 under the appeal number 0046991-68.2012.4.03.9999. In the context of the appeal, the TRF-3 (Regional Federal Court of the 3rd Region) ruled against it, following the understanding of the court of origin, which understood that an environmental licensing process had already been carried out for Guarulhos Airport and authorization for landing and takeoff activities had been issued by ANAC (National Civil Aviation Agency).
Based on this ruling, the Public Prosecutor's Office of São Paulo (MPSP) filed a Special Appeal (REsp 1.856.031/SP) with the Superior Court of Justice (STJ), where a single-judge decision followed the position of the court of origin, highlighting the specific regulation of the activity by the National Civil Aviation Agency (ANAC) and its efforts regarding the measurement and mitigation of emissions from the aviation sector. It was understood that there was no illicit act committed by the company (or even pollution), and that the MPSP was attempting to impose an unforeseen regulation. After the decision, the Special Appeal was returned to the court of origin. Subsequently, the case was definitively closed. This case is one among other similar cases brought by the MPSP against more than 30 airlines operating at São Paulo International Airport.
Plaintiff
Type of plaintiff
Defendant
Type of defendant
Main norms mobilized
Brazilian biomes
Not ApplicableGreenhouse Gas (GHG) emission sectors
EnergyStatus
Completed
Type of case
Routine case
Climate in environmental licensing
Non-mentioned
Environmental and/or climate justice approach
Non-existent
Claim alignment with climate protection
Aligned
Measures Addressed
Climate approach
Relevant approach
Document type
Decision of a single judge
Origin
Superior Tribunal de Justiça (STJ)
Date
12/2020
Brief description
A single judge decision issued in Special Appeal 1.856.031/SP. The decision follows the position of the court of origin, highlighting ANAC's specific regulation of the activity and its efforts regarding the measurement and mitigation of emissions in the aviation sector. Because the activity is authorized by ANAC, ANAC intervened in the action as an interested third party, echoing the defendant company's argument that it was complying with all the Regulatory Agency's requirements. For this reason, Rapporteur Justice Benedito Gonçalves ruled that there was no reason to speak of an unlawful act committed by the company, or even pollution.
Document type
Appellate Court Decision
Origin
Tribunal Regional Federal da 3ª Região (TRF-3)
Date
06/2017
Brief description
Civil Appeal Judgment 0046991-68.2012.4.03.9999, which denies the appeal filed by the MPSP and confirms the first instance decision on the lawfulness of the emissions once the company's activities were duly authorized.
Document type
Decision of a single judge
Origin
9ª Vara Cível da Comarca de Guarulhos
Date
08/2011
Brief description
Judgment of dismissal in which the court understands that the defendant had government authorization to operate the determined routes and, therefore, the emissions resulting from the normal exercise of said activity would already be included within the scope of that authorization and therefore lawful.
Document type
Answer
Origin
KLM - Cia Real Holandesa de Aviação
Date
06/2011
Brief description
The defendant company argues that there is (i) ineptitude of the initial claim; (ii) passive illegitimacy of the defendant, given that it carries out its activity in accordance with the determinations of the National Civil Aviation Agency (ANAC), and cannot be held responsible for complying with what is imposed and authorized by the Public Authority; (iii) manifest lack of interest in acting by the plaintiff and (iv) legal impossibility of the request since there would be no illicit activity carried out by the defendant.
Document type
Complaint
Origin
Ministério Público do Estado de São Paulo (MPSP)
Date
12/2010
Brief description
It is alleged that environmental damage has resulted from commercial activities carried out by KLM - Royal Dutch Aviation Company at São Paulo International Airport, through the landing and takeoff of its aircraft. The MPSP requests (i) that the company be ordered to undertake the restoration of forests in an area within the same river basin in sufficient quantities to fully absorb the greenhouse gas (GHG) emissions and other pollutants resulting from the activity or, (ii) alternatively, compensation for environmental damage, particularly with regard to GHG emissions, which negatively impact climate change.