Case Name: Ministério Público Federal e INCRA vs. Estado do Pará e Município de Santarém (Tapajós - Xingu Logistics Corridor)

Summary

This is a Public Civil Action (ACP), with a request for urgent relief, filed by the Federal Public Prosecutor's Office (MPF) against the state of Pará and the municipality of Santarém, aiming at the mandatory inclusion of environmental, climate, indigenous, and quilombola impact studies in the licensing process for port and waterway works in the region of the municipality of Santarém/PA. It is stated that the municipality has been progressively incorporated into the Tapajós-Xingu Logistics Corridor, which includes commodity export corridors in the Madeira and Tocantins river basins and involves the implementation of several infrastructure projects with social and environmental risks. The absence of impact studies has caused serious environmental and social damage, such as deforestation, water pollution, loss of biodiversity, destruction of ecosystems, and threats to the way of life of traditional communities, including indigenous people, quilombola communities, artisanal fishermen, riverside dwellers, and extractivists. It is noteworthy that the operation of multiple ports in the same region can generate cumulative and synergistic effects, increasing pressure on the climate. Therefore, it is fundamental to consider, in the environmental licensing of projects and their databases, the assessment of the climatic dimension of potential impacts. In a preliminary injunction, it is requested that the State of Pará and the Municipality of Santarém be ordered to adapt their environmental licensing procedures for port and waterway works in Santarém, with the mandatory completion of a prior environmental impact study (EIA/RIMA), a study of the Quilombola (ECG) and Indigenous (ECI) components, a climate impact study, and free, prior, and informed consultation with potentially impacted traditional peoples and communities. In a final injunction, it is requested that the action be deemed admissible and the urgent relief be confirmed.

An interlocutory decision was issued granting the request for preliminary injunction, ordering the State of Pará and the Municipality of Santarém to adapt their environmental licensing procedures for port and waterway works in Santarém, including: i) the mandatory performance of a prior environmental impact study; ii) in the EIA/RIMA, the performance of a study of the Quilombola (ECG) and Indigenous (ECI) components; iii) in the EIA/RIMA or before the renewal of the operating license of ports already built and/or in operation, the performance/requirement of a climate impact study, in order to establish conditions related to the negative contribution of these projects to climate change, including adaptation, mitigation and sink measures; iv) the performance of free, prior, informed and good-faith consultation with traditional peoples and communities, according to parameters established in the decision.

The state of Pará argued, in its defense, that the environmental licensing of ports and waterways in Santarém/PA followed all legal procedures, without omissions that justify judicial intervention and without the retroactive imposition of new environmental requirements on projects that had already obtained a Preliminary License (LP), respecting the principle of the perfect legal act and legal certainty. Regarding climate impacts, it emphasized that State Law 9.048/2020, amended by Law 9.781/2022, mentions the need to consider climate change in environmental licensing, but there is no specific regulation that mandates the inclusion of an independent climate impact study. At the federal level, IBAMA also does not have regulations that require this analysis in a binding manner. Therefore, the climate impacts would fall within the existing regulatory limitations. It requested that the action be dismissed.

In its defense, the municipality of Santarém argued that the requirement for an Environmental Impact Study (EIA/RIMA) and Prior, Free and Informed Consultation (FPIC) for all port and waterway works, regardless of size and environmental impact, is disproportionate, making projects essential for the riverside population and local water supply economically unviable. Regarding climate impact, it maintained that there is no specific regulation in state and federal legislation that mandates the inclusion of this component in municipal environmental licensing. Therefore, it requested that the action be dismissed.

In an interlocutory decision, the court granted the admission of FUNAI and the Palmares Cultural Foundation as amici curiae and granted the admission of the National Institute for Colonization and Agrarian Reform (INCRA) as an assistant to the plaintiff.

The State of Pará filed an interlocutory appeal (AI) against the preliminary injunction, which was denied. The judgment on the AI stated that the Superior Court of Justice (STJ) has a consolidated understanding that there is no acquired right to pollute or degrade, which authorizes the imposition of new requirements even for licensing processes in advanced stages, aiming to avoid irreversible damage. The decision refuted the State of Pará's argument that there is no specific legislation requiring the assessment of the climate variable, stating that this obligation stems directly from the Federal Constitution and the National Policy on Climate Change. It highlighted that the Supreme Federal Court (STF), in the judgment of ADPF 708 (Climate Fund), recognized the constitutional duty to mitigate climate change and therefore the licensing of large port structures in the Amazon, a sensitive biome and climate regulator, must require studies of greenhouse gas emissions and cumulative impacts. The court affirmed that Free, Prior and Informed Consultation is a right of traditional communities as required by ILO Convention 169 and must be carried out by the State whenever there is a possibility of impacts on traditional ways of life. It further reaffirmed that the Judiciary must guarantee the effectiveness of environmental policy and prevent ecological regression, as per the thesis of ADPF 760, and that the control of omissions in environmental administrative acts does not violate the limits of the separation of powers, since it is a control of legality and constitutionality. Regarding the conflict between economic interests and the protection of the environment and the rights of traditional peoples and communities, the decision affirmed that the fundamental intergenerational right must prevail. Therefore, it fully upheld the decision suspending licensing without the necessary climate studies and consultations with the affected populations.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• CONAMA Resolution 1/1986
• ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• Paris Agreement (Federal Decree 9.073/2017)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

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Case documents