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Brazil

ADI 7095 (Complexo Termelétrico Jorge Lacerda)

Jurisdiction: Supreme Federal Court of Brazil


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


Side A: Rede Sustentabilidade (Rede), Partido Socialismo e Liberdade (PSOL) e Partido Socialista Brasileiro (PSB) (Government)


Side B: Brazilian Congress (Government)


Core objectives: Whether the Just Energy Transition Program, which provides subsidies to a coal generating complex, is unconstitutional.


Summary
On March 10, 2022, the political parties Rede Sustentabilidade (Rede), Partido Socialismo e Liberdade (PSOL) e Partido Socialista Brasileiro (PSB) filed a Direct Action of Unconstitutionality (ADI), with a request for a precautionary measure, against the Brazilian Congress. The case is supported by Instituto Internacional Arayara de Educação e Cultura (Instituto Internacional Arayara) as amicus curiae. The case questions the constitutionality of articles 1 to 7 of Federal Law 14,299/2022, which establishes an economic subsidy to small-scale public service concessionaires and creates the Just Energy Transition Program (TEJ). The applicants claim that the articles extend the contracting of electricity generated by the Jorge Lacerda Thermoelectric Complex (CTJL) with subsidies from consumers for another 15 years from 2025, which includes the purchase of energy from the burning of coal and fossil fuels. Considering that the CTJL is the largest emitter of greenhouse gases (GHG) in the southern region of Brazil, the applicants allege that there is a violation of the Federal Constitution and the Paris Agreement (enacted by Federal Decree 9.073/2017), as well as the National Policy on Climate Change - PNMC (Federal Law 12,187/2009). They emphasize that the use of coal for energy generation is responsible for socio-environmental disasters in the region, exacerbation of climate change and damage to public health, especially in relation to populations that are already subject to socioeconomic disadvantages. They argue that the TEJ makes it possible to extend the operation of the CTJL until at least 2040. Further, the norm has not presented guidelines for the reduction of GHG by the Complex. On the contrary, the TEJ stated that there will be no abatement of carbon dioxide. Finally, the applicants argue that the composition established for the TEJ Council violates the principles of participatory democracy and equality, as there is no equalization of the number of seats allocated to government and civil society organizations and its composition does not reflect the participation of actors related to environmental and labor causes and the sustainable closure of mines. As a precautionary measure, the plaintiffs request that the Law is interpreted according to the Constitution, so that they are considered unconstitutional. Further, that the the subsidy established by the Law is suspended and declared unconstitutional, suspending the effects of articles 4, 5, 6 and 7 of the Law. The plaintiffs request, as a final measure, that the Court (i) gives an interpretation in accordance with the Constitution to articles 1, 2 and 3, considering them unconstitutional and prohibited the granting of the subsidy under the terms of the Law and (ii) that articles 4 to 7 of Federal Law 14,299/2022 be declared unconstitutional.
Case documents

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