Brésil, Action Civile Publique devant le 9ème Tribunal Fédéral de Porto Alegre. Associação Arayara de Educação e Cultura contre gouvernement fédéral, Ambar Uruguaiana Energia SA, Institut brésilien de l'environnement (IBAMA), Agence nationale de l'énergie électrique (ANEEL). 

Ref. # 5007143-39.2025.4.04.7110/RS. 

The 9th Federal Court of Porto Alegre granted preliminary injunctions in a Public Civil Action filed by Arayara, ordering the suspension of the coal-fired thermal power plant UTE Candiota III (Phase C) Operating License due to the failure to evaluate climate impacts from greenhouse gas (GHG) emissions. Note, however, that the immediate enforcement of this suspension is temporarily stayed pending a related appellate decision. The judge also imposed strict mandates regarding the ongoing license renewal process, as further described below. 

The plaintiff sued the Federal government, the environmental agency (IBAMA), the National Electric Energy Agency (ANEEL), and a company engaged in power generation, transmission and sales (Ambar), aiming to protect the environment by requesting the immediate suspension of the Operating License for UTE Candiota III (Phase C), as well as specific obligations for the operator and the public entities responsible for overseeing and authorizing the operation. Identifiant. at p. 1. According to the plaintiff, the requests are based on the plant’s extensive history of environmental infractions, alleged submission of fraudulent monitoring reports, continuous violation of environmental conditions, and emissions of greenhouse gases and other air pollutants that exceed legal limits. Identifiant. at p. 1. 

Preliminarily, the judge excluded ANEEL from the case, ruling that the agency lacks the competence to conduct or interfere with environmental licensing and inspections. Identifiant. at p. 5. The judge also decided that the Federal Union must remain as defendant due to its supervisory duty over IBAMA and its subsidiary liability for environmental harm resulting from a failure of proper oversight. Identifiant. at p. 5. 

The judge shifted the burden of proof, favoring the plaintiff. Invoking the en doute pro natura principle and citing informational asymmetry, the judge required the defendants to demonstrate that the plant’s activities and the state’s inspection comply with environmental laws and do not cause the negative impacts alleged by the plaintiffs. Identifiant. at p. 6. The judge recalled that the Inter-American Court of Human Rights’ (IACtHR) Advisory Opinion 32/25 notes the need for judicial authorities to assess the potential imbalances between the parties and the adoption of appropriate measures to ensure effective access to justice. Identifiant. at p. 7.

The judge granted preliminary injunctions focusing on two main areas: climate impact and chronic environmental infractions. Regarding the first point, the judge cited a ruling issued in a related case in 2025 — also concerning the same power plant and its climate impacts — and found that the environmental agency acted improperly by completely ignoring the climate impact of the Candiota III power plant’s operations. The suspension of the plant’s operating license was ordered in the related case, and the judge notes that the present lawsuit did not contain any evidence that could alter that ruling. Identifiant. at p. 9. Accordingly, the judge has once again ordered the suspension of the plant’s Operating License, granting the emergency injunction sought on the grounds of the failure to properly evaluate and mitigate the project’s climate impacts. Identifiant. at p. 10. The judge also ruled that any issuance of a new license, in renewal of the current one, must include requirements for a climate impact assessment of the operations of the Candiota III Power Plant. Identifiant. at p. 11. Nevertheless, the immediate enforcement of this suspension is currently stayed because of a pending appellate court decision in a related case. If the appellate court lifts the stay, the suspension of the license will take immediate effect. Identifiant. at p. 11. 

Regarding the second point, the alleged chronic environmental infractions, the judge found a severe ongoing failure to meet atmospheric emission standards (Identifiant. at p. 14-16, 19, 21) and other environmental conditions (such as flora and fauna monitoring and decommissioning of older phases of the plant) over many years. Identifiant. at ps. 22, 25, 27.

Although the environmental agency was aware of the persistence and severity of excessive pollutant emissions, it adopted a lenient approach, merely issuing occasional requests for improvements. The situation clearly indicates a failure to fulfill the duty to prevent and mitigate environmental and human health damage. . . . Nevertheless, the continued operation of the plant, even in the face of unsatisfactory results, suggests that licensing is not contingent upon actual compliance with the standards defined as applicable to the plant’s operations, but only upon a formal demonstration of efforts toward gradual improvements. Yet environmental licensing does not constitute a blank check to pollute. . . . In light of this, both the conduct of those responsible for the plant — who merely report non-compliance repeatedly without implementing the necessary corrections — and the behavior of the environmental agency, which delays in imposing effective coercive and corrective measures, collectively contribute to the perpetuation of a persistent problem that demands an urgent solution. The protection of public health and the environment requires not only the monitoring and recording of irregularities, but above all the timely adoption of concrete measures capable of halting the excessive emission of pollutants and ensuring compliance with legal standards and the standards defined by the operating license.

Identifiant. at p. 20.

Because IBAMA is currently evaluating the renewal of the plant’s Operating License, the judge imposed strict mandatory parameters on how IBAMA must handle this renewal, including requirements related to the proof of technical solutions implementation to continuously comply with atmospheric emission limits.

It is up to the entrepreneur to demonstrate, unequivocally to the licensing authority, that the Candiota III power plant can operate without, at any time, exceeding the established limits for pollutants such as SO₂ and particulate matter. This demonstration cannot be limited to projections or generic commitments; it must be based on robust technical evidence, consistent operational tests, and, if necessary, the substantial modernization of emission control systems. . . . If the power plant is unable to ensure this level of compliance — which could occur, for example, due to the poor quality of the coal used in Rio Grande do Sul, combined with equipment that is insufficiently modernized — the Defendant environmental agency is required to issue a reasoned decision on the feasibility of continuing operations. This is not a matter of broad discretionary choice, but rather a decision that must be grounded in the principles of prevention, precaution, and the protection of public health and the environment.

Identifiant. at p. 21.

The judge also required the transparency of fines and outstanding debts, the consideration of the plant’s history of infractions, and the submission of a comprehensive decommissioning plans for all phases of the plant, including strict deadlines, technical methodologies, and climate impact assessments. Identifiant. at p. 25-27, 30.

In several excerpts, the judge explained the possibility of judicial intervention in this specific case:

Given this pattern of repeated noncompliance, successive administrative extensions, and the concrete risk already identified, judicial intervention is fully warranted. This is not a matter of unduly substituting administrative action, but rather of ensuring the enforcement of obligations that have already been established and repeatedly ignored, both by the developer and by the licensing agency itself.

Such a determination does not constitute undue substitution of administrative action, but rather represents the fulfillment of the legal duty to ensure the effectiveness of environmental licensing, in light of a prolonged history of non-compliance and undue leniency on the part of both the developer and the licensing agency.

Identifiant. at ps. 26, 27.

The decision highlighted the historic lack of public participation regarding the project and set a deadline for IBAMA to publish its final decision regarding the Operating License renewal: November 5, 2026. Identifiant. at p. 28-29. Citing the IACtHR precedent La Oroya v. Peru, the judge recalled their own duty to comply with the Inter-American environmental and human rights standards. Identifiant. at p. 29. 

This is a time to determine whether the activity can continue under higher standards of protection. If this does not occur, the State not only fails in its environmental duty but also runs the risk of being held accountable in the future for violating fundamental rights, as made clear by the Inter-American Court of Human Rights’ ruling in the La Oroya case. There is no legal basis for the Candiota community to be treated as an environmental sacrifice zone, with so-called development being prioritized at the expense of the local quality of life.

Identifiant. at p. 29.

Finally, the judge ordered the suspension of the operating license for the Candiota III Power Plant and ruled that any new license issued to renew the current one must incorporate the requirements for assessing the climate impact of the Candiota III Power Plant’s operations. Among other mandates imposed on IBAMA, the judge required the agency to present a complete list of the plant’s infraction notices and their payment statuses within 15 days, and to expressly consider the plant’s history of environmental violations and potential fraud in its final decision regarding the renewal of the license. The judge also ruled that any renewal must be strictly conditioned on the plant proving the implementation of robust technical solutions to continuously meet atmospheric emission limits and the presentation of comprehensive decommissioning plans for all phases of the plant. 

*Quotes have been unofficially translated from Portuguese.