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    São Paulo’s Car Emissions Inspection Regime Unconstitutional?

    By Keith R | June 14, 2009

    Topics: Air Quality, Motor Vehicles | No Comments »

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    Stuck in a hotel lobby in the City of São Paulo, waiting since dawn to be allowed to check in my room, I have been catching up on my reading on Latin America environment, health and consumer affairs, in both electronic and print formats.  One of the electronic tidbits I found involves this very city: it seems that the 10th circuit (handling cases for the capital area) of the state court has ruled that the City’s car emission inspection regime formally launched in February is unconstitutional.

    The ruling, under appeal by the municipal government, could affect not only the City’s 4.7 million automobiles and air quality, but also SP state’s efforts to implement an inspection regime in the rest of the state, as well as national efforts to work out, via the National Environment Commission (CONAMA), common minimum elements for state vehicle emissions inspections.  [SP City is considered the only municipality large enough to merit implementing its own inspection regime; in other Brazilian states it is solely a state responsibility.]

    As mentioned in my earlier post on the national talks, CONAMA first broached the subject of vehicle emissions inspection in 1986, although it took until 1993 before it actually called for periodic inspections.  Soon thereafter SP City and several states adopted laws and decrees setting out the parameters for their inspection regimes.  Trouble was, with the notable exception of Rio de Janeiro (RJ) state (for nearly a decade focused mostly on their capital city), most jurisdictions went many years with a regime on the law books but not implemented in practice.

    In recent years SP City finally began inspections of diesel trucks, and in February 2009 it launched full inspection of cars (and motorcycles) through a network of 10 large inspection stations, with actual testing conducted by a concessionaire, Controlar.

    All owners of vehicle models from 2003 onward past 12 months from date of manufacture must pay R$52.73 annually for their car to be tested.  If the car fails to meet mandatory emission limits for carbon monoxide (CO) and unburnt hydrocarbons (HC), the owner has 30 days to correct the problem and get his/her car re-tested, or else face a R$550 fine.  The car’s registration with the state Transport Department (DETRAN-SP) also cannot be renewed without a passing grade on the emissions test.

    Carmen Marcoantonio filed suit with the State Court, questioning the legality of the City program.  She wondered why testing was limited to car models 2003 onward, rather than all cars, particularly since studies suggest older cars emit more pollutants.

    Judge Henry Rodriguero Clavisio ruled that the City’s rules for the inspections violate the equality principle enshrined in the 1988 Brazilian Constitution.  Focusing solely on a particular group instead of all vehicles, without establishing just cause for doing so, is discriminatory and violates the Constitution, he argued.

    “Como pode um veiculo mais novo poluir mais que um veiculo mais velho? (…) Eleger apenas parte da frota-alvo da inspeção (…) implica violação do princípio constitucional da igualdade, uma vez que referida regra de limitação é fator diferencial adotado para qualificar os atingidos, sem guardar relação de pertinência lógica com a normatividade justificadora da sujeição.” [roughly translated: “How can the newest vehicle pollute more than the oldest vehicle? (…) To elect only part of the fleet for inspection (…) implies a violation of the constitutional principle of equality, since the referred limitation rule is a differential factor adopted in order to qualify those affected, without regard to logical relevance to the normative justifications for the subject.”]

    He ruled that Marcoantonio does not have to have her car inspected and that DETRAN-SP cannot impede renewal of her car’s registration.

    City authorities are appealing the decision (of course — they don’t want everyone dodging testing by citing the Marcoantonio case).  They insist that they never intended to permanently omit testing of older cars, but rather simply to start first with recent models.  [Temas Observation: it seems to me that the targeting of post-2003 models was aimed to inspecting cars most likely to pass the tests and therefore least likely to often hassle and expense to car owners.  Question is, was this done to build early public acceptance of testing, before turning to older cars that may require expensive repairs or even be taken off the road?] My guess is that the City will soon amend their legislation to expand testing to all cars, regardless of model year.

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