Instituto Internacional Arayara v. IBAMA and others

Summary:

On October 28, 2022, the NGO, Instituto Internacional Arayara filed a Public Civil Action (environmental class-action) against the National Environmental Agency (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis – IBAMA), the Federal Union, the Rio de Janeiro’s State Environmental Agency (Instituto Estadual do Meio Ambiente – INEA), the State of Rio de Janeiro, and the companies EDF Norte Fluminense S.A. - Usina Termelétrica Norte Fluminense S.A., Global Participações em Energia S.A., Usina Termelétrica Nossa Senhora de Fátima and Litos Energia Ltda. The plaintiff seeks the annulment of the previous environmental licenses issued by IBAMA for thermoelectric projects located in the municipality of Macaé, in the state of Rio de Janeiro. It also seeks the annulment of the (i) water resources use right grants and (ii) Water Availability Reserve Certificates referring to the Macaé and Ostras River Hydrographic Basin, granted by INEA for the same projects. The plaintiff institution defends that the installation of a thermoelectric complex in the region, consisting of eighteen enterprises, is contrary to the need for investment in a clean energy matrix and the fight against climate change. It argues that there should be a determination that licensing agencies require, prior to issuing licenses: (i) a Strategic Environmental Assessment (AAE) for the analysis of synergistic and cumulative impacts of enterprises to be installed in the same hydrographic basin; (ii) the updating of the plan of the Hydrographic Basin of the Macaé and Ostras River and the study of water availability of the Basin; and (iii) the presentation of a Climate Diagnosis, with an inventory of Greenhouse Gas (GHG) emissions by the enterprises.

The plaintiff argues that the failure to conduct AAE prior to the issuance of the licenses invalidates the administrative procedures already carried out, since it was not possible to investigate the various cumulative impacts of the activities to be licensed. It is emphasized that emissions of pollutants by thermoelectric plants contribute to air pollution, damage to human health, and loss of agricultural productivity. From the climatic point of view, it is argued that in order to keep the limit of planetary temperature increase at 1.5°C, to fulfill the commitments made in the Paris Agreement, COP 26 and NDCs, the installation of new enterprises that use fossil fuels cannot be allowed. The plaintiff highlights the consolidation of jurisprudence favorable to environmental and climate issues at the Supreme Federal Court, exemplified by the judgment of ADPF 708 (Climate Fund), which recognizes that current Brazilian measures to address climate change are in disagreement with its international commitments. The plaintiff requests, as a preliminary injunction the suspension of the environmental licensing processes of the plants until the defects in the Environmental Impact Studies (EIA/RIMAs) and the defects related to atmospheric dispersions are remedied, including, among others (i) the determination that the Climate Diagnosis be presented and considered for the analysis of the environmental licensing processes, (ii) IBAMA be ordered to include the guidelines set forth in the National Policy on Climate Change (PNMC), the guidelines of the Rio de Janeiro State Policy on Climate Change, and the preparation of a AAE in the terms of reference of the licensing processes for the power plants and (iii) the companies be ordered to refrain from construction work and activities at the thermoelectric complex until the AAE, basin plan update, hydric availability study, and other studies required in the lawsuit have been conducted. In the final stage, it is requested that the preliminary injunction be confirmed, reiterating the requests, with the inclusion of the requirements for the annulment of the environmental licensing processes, licenses and permits already granted by the environmental agencies.

At Issue: Whether the permitting of thermoelectric plants project has been conducted without considerations of GHG emissions and water related impacts.