Public Ministry of the State of São Paulo v. KLM

Summary:

This is a Public Civil Action filed by the Public Ministry of the State of São Paulo (MPSP) against the company KLM - Cia Real Ho Holanda de Aviação for alleged environmental damage resulting from commercial activities carried out by the defendant at São Paulo International Airport, in Cumbica, Garulhos, through the landing and take-off of their aircraft.

The company is required to remediate or provide compensation for environmental damage, especially with regard to the emission of Greenhouse Gases (GHG). The initial petition requests an obligation of forest restoration in an area in the same hydrographic basin in sufficient quantity to fully absorb the emissions of GHGs and other pollutants resulting from the activity. In response, the company alleged that the applicant filed 35 actions identical to the present one and that the São Paulo State Court of Justice (TJSP), by design, recognized the ineptitude of 26 of the initial petitions and expressed the merits of the action in only one of the cases, case 224.01.2010.082070-8, proposed against EMIRATES AIRLINES, having dismissed the remaining requests.

The company argued (i) its passive illegitimacy, given that it performs 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 by the Public Power; and (ii) legal impossibility of the request since there would be no illegal activity practiced by the Defendant. In the first instance, the Court understood that the Defendant had governmental authorization for the exercise of certain routes and the emissions resulting from the normal exercise of said activity would already be included in the scope of that authorization. On appeal before the TJSP (Appeal 0082072-08.2010.8.26.0224), the MPSP, on the merits, again requested the mitigation and repair of the environmental damage caused by the defendant. Subsequently, the National Civil Aviation Agency (ANAC) joined the action requesting the intervention as a third party and the remittance of the case to the federal court.

A decision was handed down in the TJSP rejecting the preliminary presented by the MPSP and, in view of the ANAC's manifestation, it decided to refer the case to the Federal Regional Court of the 3rd Region (TRF-3). In this sense, it should be noted that the present action was initially filed in the State Court of São Paulo (TJSP), but was later referred to the Federal Court, due to the request for intervention by ANAC. The action was registered in the TRF-3 under the Civil Appeal number 0046991-68.2012.4.03.9999. Within the scope of the appeal, the TRF-3 decided to dismiss it, following the understanding of the court of origin, which understood that there was an environmental licensing process already carried out for Guarulhos Airport and authorization for the landing and take-off activity drawn up by ANAC . From this ruling, the MPSP filed a Special Appeal (REsp 1,856,031/SP) with the STJ, where there was a monocratic decision that followed the position of the court of origin in order to emphasize the specific regulation of the activity by ANAC and its efforts in terms of regarding the measurement and mitigation of emissions by the airline industry. It was understood that there would be no need to talk about an illicit act practiced by the business company (or even pollution), with the MPSP intending to impose an unforeseen regulation. After the decision, the REsp was written off to the court of origin. The present case is one among others similar proposed by the MPSP against more than 30 airlines that operated at São Paulo International Airport.

At Issue: Whether airlines should remediate climate damage done during takeoff/landing given governmental authorization to perform such activities.