In a judgment handed down under the popular action 0150428-88.2020.8.19.0001, on January 23, the 15th Court of Public Finance of the District of the Capital of the Court of Justice of Rio de Janeiro declared the nullity of the sessions and deliberations of the State Council of the Environment (Conema) held from September 14, 2019.
The court also ordered the state of Rio de Janeiro to refrain from granting new environmental licenses based on these deliberations, until the irregularities related to the designation of Conema members and parity in the composition of the council (recognized in the judgment) are duly corrected.
The popular action, initiated in July 2020 against the state of Rio de Janeiro, has as its object the environmental licensing of an international racetrack that was being planned in the capital of Rio de Janeiro.
The authors alleged that the institution of the State Council of the Environment (Cema) – made by State Decree 46.739/19 – would represent an offense to the principle of administrative legality since the state constitution of 1989 determines the mandatory edition of state law for the creation of the council.
They also argued that the formation of Cema does not meet the requirements of parity in the composition of its members (which aims to ensure the participation of the Executive and Legislative branches, scientific communities, and civil associations), provided for in article 261, paragraph 1, item XXII, of the state constitution. They also pointed out the absence of a normative act of the Executive Branch for the appointment of full and alternate members of the body.
Based on these allegations, the plaintiffs of the popular action requested the nullity of State Decree 46,739/19, Conema Resolution 88/20 and Conema Resolution 89/20 , as well as all Conema sessions and deliberations expressed in these two resolutions – which, respectively, approved the Conema Internal Regulations and authorized the holding of virtual public hearings in the context of environmental licensing during the pandemic.
Although the sentence pointed out that the main object of the process was lost, since the State Institute of the Environment (Inea) rejected the granting of an environmental license for the racetrack in Rio de Janeiro, the sessions and deliberations of Conema were declared null and void, "(...) including resolutions 88 and 89 of 2020, in view of the irregular appointment of representatives of the public power, as well as the lack of parity in the council, in violation of article 261, paragraph 1, XXII of the State Constitution of Rio de Janeiro".
The decision also determines the maintenance of the validity of the precautionary measure granted in the file, so that the state of Rio de Janeiro refrains from granting new environmental licenses "(...) until the irregularities now recognized are remedied."
If confirmed, the decision could affect the licensing competence delegated to the municipalities of Rio de Janeiro, although this effect was not explicitly mentioned in the judgment.
This is because, according to the provision contained in article 9, VIX, paragraph "b", of Complementary Law 140/11, it is up to the municipalities to promote the environmental licensing of activities or enterprises that cause or may cause environmental impact at the local level, "(...) according to the typology defined by the respective state councils of Environment", according to the criteria of size, polluting potential and nature of the activity.
The definition of activities and enterprises with local impact was recently established in Conema Resolution 92/21 and Conema Resolution 95/22. These deliberations were also declared null and void by the judgment handed down in the popular action.
As determined by Article 19 of the Popular Action Law (Federal Law 4.717/65), the decision rendered by the Rio de Janeiro court takes effect immediately, until an appeal is filed, if applicable, with suspensive effect by virtue of the law (article 1.012, of the CPC).
The state of Rio de Janeiro filed a request for suspension of provisional compliance with the sentence, arguing that the measure makes "(...) the economic shutdown of the state" by impeding economic development, discontinuing the provision of public services and negatively impacting many strategic projects, especially in the energy, oil and gas and sanitation sectors.
In an injunction decision handed down on February 14, the presidency of the Court of Justice of Rio de Janeiro (TJRJ) ordered the suspension of compliance with the first-degree sentence, "(...) maintaining the hygiene of Conema's deliberations, including the environmental licenses already analyzed and resolutions 88 and 89 of the aforementioned body, as well as authorizing the commission to function normally until the final judgment of the process".
In response, the plaintiffs in the original case filed a declaration against the decision of the presidency of the TJRJ, which is still pending consideration.
It is worth following the discussions and eventual developments of the subject in the course of popular action 0150428-88.2020.8.19.0001, whose sentence, debated here, must still be the subject of appeals by the Attorney General's Office of the State of Rio de Janeiro and/or other interested parties.