Instituto Preservar et. al. v. Copelmi Mineração Ltda. and IBAMA

Brazil

Jurisdiction: 9th Federal Court of Rio Grande do Sul

Principle law(s): Law 12.187/2009, establishing the National Policy on Climate Change (NPCC), regulated by Decree 7.390/2010

Side A: CEPPA (Ngo)

Side A: COONATERRA-BIONATUR (Ngo)

Side A: INGÁ (Ngo)

Side A: AGAPAN (Ngo)

Side B: Copelmi (Corporation)

Side B: IBAMA (Government)

Core objectives: Whether climate change should be included as a necessary requirement in developing EIAs for thermoelectric power plants

Summary

In May 2021, four NGOs (AGAPAN, INGÁ, COONATERRA-BIONATUR and CEPPA) filed a request for precautionary measures against the Brazilian environmental agency, IBAMA, and Copelmi, a mining company, related to an open-pit coal mining project within the Nova Seival coal-fired power plant, which, if approved, will be the largest coal power plant in Brazil. The plaintiffs identified a series of irregularities in the permitting process, including: (i) inadequate public participation, (ii) the lack of analysis of the EIA by the environmental agency, and (iii) the risks and impacts caused by the project. The request was subsequently converted into a public civil action. The plaintiffs sought to suspend a public hearing and the permitting procedure until several material issues with the EIA are resolved. The Ministério Público, asked to opine on the case, specifically noted the need to undertake a strategic environmental assessment and asked for the assessment of climate change impacts in the general terms of reference for EIAs related to thermal power stations.

On August 18, 2020, the Public Prosecutor's Office filed a statement on the case, requesting that: (i) the anticipation of relief claimed by the plaintiffs be granted, with subsequent annulment of the public hearing, (ii) the immediate suspension of the UTE's environmental licensing process Nova Seival until the defects pointed out by IBAMA are remedied, (iii) held at least three public hearings in the cities of Porto Alegre, Hulha Negra or Candiota, (iv) acknowledged the omissions present in the EIA/RIMA and (v) summoned IBAMA for the presentation of a merit analysis study and the EIA/RIMA, prepared by a multidisciplinary team.

On August 31, 2021, the court partially granted the precautionary measures to (i) annul the public hearing previously held, (ii) suspend the permitting procedure of the Nova Seival coal-fired power plant until the irregularities in the EIA are addressed, (iii) hold at least three public hearings, and (iv) include specific requirements in the terms of reference of thermoelectric power plants in the state of Rio Grande do Sul related to climate change, the need for a strategic environmental evaluation, and potential risks to public health. The requirements to assess potential climate change damages are grounded in the National Policy of Climate Change and the State Law No. 13.594/2010 (state policy on climate change) in the terms of reference of permitting procedures of thermal power stations in the state of Rio Grande do Sul.

Case documents

Related laws and policies

This law implements Brazil legislation

Law 12.187/2009, establishing the National Policy on Climate Change (NPCC), regulated by Decree 7.390/2010

Passed in 2009 Legislative

This law creates the NPCC with the following key areas of concern: combining climate protection with socio-economic development; reducing anthropogenic GHG emissions from all its sources and strengthening GHG sinks; adaptation; preservation, conservation and recuperation of national biomes; land ...