Indigenous and environmental organizations vs. the Brazilian government, over a road in the Serra do Divisor National Park

Indigenous and environmental organizations filed a Public Civil Action against the Union, the National Department of Transport Infrastructure (DNIT) and the Brazilian Institute of the Environment (IBAMA), for issuing public notice number 130/2021, which authorizes the hiring of a company to design and build the expansion of the BR-364 highway that would connect the Cruzeiro do Sul section, in Acre, Brazil to a point on the border between Brazil and Peru and that would cross the Serra do Divisor National Park.

The plaintiffs allege that the bidding process was conducted without the required technical, economic, and environmental feasibility studies (EVTEA), without prior, free, and informed consultation with Indigenous peoples and traditional communities, and without considering the rights of isolated peoples living in the region. They also argue that it is illegal to waive the EVTEA requirement simply by claiming it is a matter of national security.

They also indicate that the expansion of the road will have impacts such as the loss of biodiversity and water resources, due to the fragmentation and loss of forests, which also violates the fundamental rights to life, health and a healthy and stable environment.

In that regard, the plaintiff organizations request the court to declare the public notice in question null and void, and to order the Union and the DNIT to refrain from making any administrative or political decision related to the execution of the BR-364 section.

The Federal Court of Rio Branco in Acre granted, at the request of the plaintiffs, a precautionary measure to prevent the signing of the construction contract; however, the decision was suspended by the Federal Regional Court of the 1st Region, based in Brasilia.

In the lawsuit, the plaintiffs state that the expansion of the highway will require deforestation in the area that is part of the Amazon, which may have negative impacts on climate regulation. This is because the Amazonian forests are the main carbon sink of the Earth (that is, they have the capacity to absorb greenhouse gases (GHG), preventing them from accumulating in the atmosphere and increasing the warming of the planet).

They indicate that forests are essential to mitigate the effects of climate change and even reduce these effects, so projects such as the expansion of the road can aggravate the climate crisis due to the deforestation they promote.

• SOS Amazonia
• Organization of Indigenous Peoples of the Juruá River (OPIRJ)
• Acre Pro-Indian Commission (CPI Acre)
• Coordination of Indigenous Organizations of the Brazilian Amazon (COIAB)
• National Council of Extractive Populations (CNS)

• The Federal Union (Government of Brazil),
• National Department of Transport Infrastructure (DNIT)
• Brazilian Institute of the Environment (IBAMA)

The Public Civil Action states that the BR-364 highway, which began construction in 1961, runs from the city of Limeira in the State of São Paulo, and continues through the states of Minas Gerais, Mato Grosso and Rondônia to the state of Acre.

The DNIT intends to widen the highway, passing through the municipalities of Cruzeiro do Sul, Mâncio Lima, and Rodrigues Alves, up to the border with the Ucayali Province of Peru. The area adjacent to this highway widening, which would be impacted, is a territory in the Southwestern Amazon, inhabited only by extractive communities and Indigenous peoples located along the Juruá River valley and its tributaries, and in the Serra do Divisor mountain range, in the border region with Peru.

Furthermore, the planned route of the highway crosses Serra do Divisor National Park (PNSD), a Protected Area of Conservation, considered one of the most biodiverse regions in the Amazon. It includes the only mountain range in Acre and is home to more than 1,200 animal species, including endemic ones. Brazilian environmental laws prohibit the construction of highways within national parks.

Rules:

• Rio Declaration on Environment and Development
• Convention on Biological Diversity
• United Nations Declaration on the Rights of Indigenous Peoples
• ILO Convention 169
• Additional Protocol to the American Convention on Human Rights
• Advisory Opinion 23/2017 of the Inter-American Court of Human Rights
• Constitution of the Republic
• Law No. 7.347/1985, Law of Public Civil Action
• Law No. 5,917, which approves the National Road Traffic Plan
• Decree No. 97,839/1989, which declares the Serra do Serra National Park as an Integral Protection Conservation Unit
• DNIT Ordinance No. 1,562/2008, which recognizes and declares of relevant social interest, the transport infrastructure works, under the competence of the Ministry of Transport and, under the direction and administration of the DNIT, included in the Growth Acceleration Program.
• Decree-Law No. 2,375/1987, which declares the vacant public lands that it determines and which are cumulatively included in the 100-kilometer-wide Border Strip to be indispensable for national security.
• Decree No. 1,705/200714 of the DNIT establishes exceptions to the non-requirement of feasibility studies

Beginning:

• Reversal of the burden of proof
• Prevention
• Caution
• Human dignity
• in dubio pro natura