Clara Leonel Ramos and Bruno de Almeida de Lima vs. State of São Paulo (Families for the Climate and IncentivAuto Program)

Summary:

On November 10, 2021, individuals from two global movements that seek to promote climate justice, Families for the Climate and Fridays for Future, filled a Popular Action, with a request for a preliminary injunction, against the State of São Paulo, the Governor of the State (João Doria) and the Secretary of Finance and Planning (Henrique Meirelles). The plaintiffs question the adequacy of the administrative acts that structure the institutional design of the IncentivAuto Program - Automotive Regime for New Investments to the federal and state rules protecting the climate system, such as the National Policy on Climate Change - PNMC (Federal Law 12. 187/2009) and the State Policy on Climate Change - PEMC (State Law 13.798/2009), and the international commitments made by Brazil, especially under the United Nations Framework Convention on Climate Change - UNFCCC and the Paris Agreement. The plaintiffs highlight the lack of transparency of the Program's information, which resulted in the separate filing of the Autonomous Action for the Advance Production of Evidence (No. 1047315-47.2020.8.26.0053). They argue that public policies for social and economic development should be aligned with the mitigation of environmental or climate damage and the preservation of the environment, life, and human health of present and future generations, highlighting the social function of property. They allege that the acts do not bring any requirement for project assessment through socio-environmental parameters that aim at the reduction of Greenhouse Gas (GHG) emissions. According to the plaintiffs, the Program finances, with public resources, the increase of emissions, in disagreement with the protective norms of the climate system. Finally, they request, among other things, (i) the granting of injunctive relief determining the suspension of the IncentivAuto Program and, definitively, (ii) the confirmation of the injunction to declare the nullity of the regulations that structure it and of the other administrative acts resulting therefrom; or, alternatively, to determine that the State of São Paulo includes, in the Program, conditions for the approval of projects related to the adoption of measures aimed at the reduction of GHG emissions and adaptation to climate impacts.

On January 12, 2021, a decision was handed down denying the request for preliminary injunction, on the grounds that there is no evidence of the probability of the right, and that it was necessary to produce evidence to determine whether the environmental damage was greater than the economic development goal established. The judge pointed out that the IncentivAuto Program is required to comply with environmental requirements.

In response, the State of São Paulo argued, in sum, that the implementation of the IncentivAuto Program stimulates socioeconomic development, thus meeting the public interest for which it was created, and that there is no harm to public property, administrative morality or the environment. The State affirmed that the protection of the environment is not separated from other constitutionally guaranteed rights, being necessary the conciliation with the development values through the principle of sustainable development. The State noted that it has a clean energy matrix and a policy based on several sources of supply, on energy security and efficiency, having already implemented different public policies aimed at the reduction of emissions and pollutants, highlighting the PEMC. In his reply, the Governor of São Paulo, João Doria, argued his illegitimacy as a respondent and that the plaintiffs cannot question the convenience and opportunity of the legislation, that the intention to suspend the Program violates the principles of discretion and separation of powers.

On May 22, 2022, the court handed down a sentence in which it dismissed the action. It pointed out that the Program requires compliance with various obligations, including obtaining environmental licenses and complying with the pollutant emission standards of the Vehicle Emission Control Program (PROCONVE), established by CONAMA Resolution 18/1986 and ratified by Federal Law 8.723/1993. The court concluded that there was no harm to the public patrimony, administrative morality, or the environment. Regarding the subsidiary request, it understood that it configures an obligation to do, not being possible to use the Popular Action for this purpose.

The plaintiffs then filed a motion for clarification, which has not yet been examined by the Court.

At Issue: The adequacy of the regulations of the IncentivAuto Program (Automotive Regime for New Investments) to the international, federal, and state rules protecting the climate system.