Federal Public Prosecutor’s Office (MPF) v. INEA and Karpowership Brasil Energia Ltda.

Summary:

On March 25, 2022, the Federal Public Prosecutor’s Office (Minstério Público Federal - MPF) filed a Public Civil Action (environmental class action) against the Rio de Janeiro’s State Environmental Agency (Instituto Estadual do Meio Ambiente – INEA), and the company Karpowership Brasil Energia Ltda. due to alleged irregularities in the environmental licensing process of 36 temporary towers for power transmission lines in Sepetiba Bay, Rio de Janeiro. The plaintiff informs that INEA, when granting the Integrated environmental license disregarded the synergistic and cumulative impacts with the request for a license to install and operate four floating Thermoelectric Plants in the same region, which are part of the same project. It argues that both the temporary towers for power transmission lines and the floating Thermoelectric Plants should be analyzed together and that there was an absence of an Environmental Impact Study/Environmental Impact Report (EIA/RIMA) and of a public hearing with the participation of the local community. The MPF points out that thermoelectric enterprises are generators of Greenhouse Gas (GHG) pollution. For this reason, INEA should require prior studies to assess the contribution of the project to climate change, taking into account the objectives of the National Policy on Climate Change - PNMC (Federal Law 12.189/2009) and the goals assumed by Brazil in the Paris Agreement.It raises the special protection of the Atlantic Forest biome (under Federal Law 11.428/2006) when it comes to suppression of vegetation. The MPF bases its claim on the duty of the Public Authorities to defend and preserve the ecologically balanced environment provided for in article 225 of the Federal Constitution.

Among other measures, the plaintiff requests the preliminary suspension of the license and, definitively, the: (i) declaration of its nullity; (ii) evaluation of the project considering its contribution to climate change, so as to ensure that emissions are mitigated; (iii) determination that INEA abstain from granting licenses without conducting an EIA; (iv) determination that INEA considers, after the presentation of the EIA/RIMA, the global analysis of the licensing, considering the cumulative and synergistic effects of the projects; (v) determination that the defendants to recover the already deforested areas and the existing environmental liabilities; and (vi) determination that the defendants compensate for the damages caused, considering their material and extra-patrimonial nature, including collective moral damages.

On September 25, 2022, the judge dismissed the case without resolution of the merits, on procedural grounds. It emphasized that the case should be dismissed on the grounds of (i) lack of standing to sue on the part of the Federal Public Prosecutor's Office (MPF); (ii) absolute lack of jurisdiction of the court; and (iii) lack of interest in suing on the grounds of inadequacy of the chosen legal avenue.

At Issue: Whether the permitting of towers for power transmission lines should be analyzed together with the project of floating Thermoelectric Plants considering its cumulative and synergic impacts and its contribution to climate change.