Federal Court Restores APS Authority to Monitor Ballast Water

Judge Diego Câmara of the 17th Federal Court of Brasília granted an injunction in favor of the Santos Port Authority (APS), overturning a decision by the National Waterway Transportation Agency (Antaq), which had previously nullified APS Regulation OPR.023.2024. This regulation oversaw compliance with the International Convention on the Control of Harmful Ballast Water Discharge in oceans, including in estuaries, inlets, and bays of the Baixada Santista region.

As a result, the Federal Court upheld APS’s right to condition ship berthing at the Port of Santos on adherence to environmental protection rules, particularly those preventing damage caused by invasive marine species.

Antaq had annulled the regulation, arguing that APS had overstepped its authority by issuing it. The São Paulo State Maritime Shipping Agencies Union (Sindamar) and the National Center for Transatlantic Shipping (Centronave) joined the case to provide supporting information.

APS appealed, stating that the regulation was essential for local environmental protection, especially as one-third of ships failed to meet legal obligations during its enforcement, revealing flaws in existing oversight mechanisms.

Numerous cases have been recorded of marine life being harmed, with some native species becoming extinct due to predatory organisms brought from other regions via ballast water. One notable example is the “devil crab,” which decimated native crustacean populations in Maranhão, endangering the livelihoods of hundreds of families who depended on these species for food and income.

This is precisely why the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM) set guidelines for ballast discharge in designated geographic zones where it is unlikely to cause environmental harm. Discharging near continental shelves or estuaries poses a global environmental threat, with severe social and economic consequences due to its impact on fish biomass.

The judge noted that Antaq had claimed APS infringed upon the jurisdiction of the Brazilian Maritime Authority (AMB) by issuing the regulation. He countered: “At first glance, I believe that the authority to determine whether AMB’s legal powers were violated does not lie with Antaq, but with AMB itself. And if such a violation is confirmed, the proper authority to act and reassert its jurisdiction is AMB, not Antaq.”

In his ruling, the judge referenced Law 9.966/2000, which imposes several environmental obligations on port authorities. Article 9 states that “operators of organized ports and port facilities, as well as owners or operators of offshore platforms and support installations, must conduct independent biennial environmental audits to assess their environmental management and control systems.”

Furthermore: “Article 15 of the law clearly states that ‘the discharge of harmful or hazardous substances… including those provisionally classified as such, as well as ballast water, tank wash residues, or other mixtures containing such substances, is prohibited in waters under national jurisdiction.'”

The judge emphasized that there are legal precedents where even state environmental agencies have been penalized for failing to supervise actors who subsequently caused environmental damage properly.

APS President Anderson Pomini commented on the ruling: “We always believed in justice and common sense, which have prevailed to uphold an international regulation in defense of our oceans.”

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