Workers Party vs. National Environment Council (ADPF 749 on CONAMA Resolutions)
Jurisdiction: Federal Supreme Court of Brazil
Side A: Workers Party
Side B: National Environment Council
Core objectives: Whether a new resolution restricting environmental measures is unconstitutional.
On October 2, 20202, the political party Rede Sustentabilidade filed a constitutional claim (Allegation of Noncompliance with a Fundamental Precept (ADPF)) questioning CONAMA Resolution 500/2020, which revoked CONAMA Resolutions 284/2001, 302/2002 and 303/2002. The revoked resolutions regulated the permitting of irrigation activities and the definitions of permanent preservation areas (APPs) - a protected area within private properties - in artificial reservoirs, mangroves and sandbanks. Furthermore, it questions the new CONAMA Resolution 499/2020, which changed the permitting of waste processing activities in rotary kilns, revoking the CONAMA Resolution 264/1999. The plaintiff argues that (i) the burning of pesticides, (ii) the APPs and (iii) the modification of the form of environmental permitting for irrigation and burning of toxic waste are against environmental protection efforts.
The plaintiff claims that there is a violation of the fundamental right to an ecologically balanced environment, in view of the setback in norms that controlled activities with potential environmental degradation or potential increase in the waste of natural resources. No regulation aiming at the same ends of environmental protection was presented to replace the revoked norms, evidencing the socio-environmental setback with consequences that the authors claim will be felt by current and future generations regarding the water, climate and pollution agendas in a systemic way. When questioning the repeal of Resolution 303/2002, which deals with the protection of mangroves and sandbanks on the Brazilian coast as APPs, The plaintiff highlights its consequences for climate change. It argues that the restinga and mangrove areas contribute to carbon sequestration, being important for mitigating climate change, and helping reduce the vulnerability of the coastal zone, which are the areas most affected by these changes, demonstrating its importance for adaptation. The plaintiff emphasizes that the legal protection of these areas is necessary to enable, among other benefits, the achievement of the goals of the Paris Agreement. In addition, it reinforces the importance of CONAMA Resolution 303/2002 due to the special protection granted to the Atlantic Forest, especially with regard to restingas. Finally, in the discussions regarding CONAMA Resolution 499/2020, the GHG emissions that occur in the waste burning process are also mentioned.
The plaintiff request, as precautionary measures, the suspension of the effects of CONAMA Resolution 500/2020, with the return of validity of Resolutions 284/2001, 302/2002 and 303/2002; and the suspension of the new CONAMA Resolution 499/2020 on licensing the activity of co-processing waste in rotary kilns for the production of clinker, which revokes and replaces Resolution 264/1999. Definitively, the plaintiff request a declaration of the unconstitutionality of the Resolutions.
Justice Rosa Weber determined the joint processing of this ADPF with ADPFs 747 and 748, due to the similarity of objects. On November 11, 2020, a monocratic decision, later confirmed by the Plenary of the Federal Supreme Court, partially granted the preliminary requests to suspend the effects of CONAMA Resolution 500/2020, with the immediate restoration of the validity and effectiveness of the CONAMA Resolutions 284/2001, 302/2002 and 303/2002. However, the request to suspend the effectiveness of CONAMA Resolution 499/2020 was rejected.
A final decision confirmed the preliminary judgment and declared CONAMA Resolution 500/2020 unconstitutional, determining the immediate restoration of the validity and effectiveness of CONAMA Resolutions 284/2001, 302/2002 and 303/2002, dealing with licensing of irrigation activity and on parameters, definitions and limits of APPs, as it was understood that the mere revocation of rules necessary to comply with environmental legislation, without replacing or updating them, compromises compliance with the Constitution, current legislation and international commitments. The judgment of the preliminary decision regarding CONAMA Resolution 499/2020, on the licensing of waste co-processing activity in rotary clinker kilns, was also confirmed, rejecting the request as to its unconstitutionality based on the understanding that the new normative parameters established would be compatible with the constitutional text.