Brazil’s First Climate Case to Reach the Supreme Court

[Maria Antonia Tigre is the Director for Latin America at the Global Network for the Study of Human Rights and the Environment.]

In September 2020, the Brazilian Supreme Court held the country’s first public hearing on climate change. For the first time, a climate litigation case reached Brazil’s highest court, marking an historic landmark for the country’s legal system. A broad range of members from civil society, government, and the business sector participated, ensuring a diverse range of perspectives on the current legal, environmental, social, scientific, and economic state of climate policy in Brazil. The core issue discussed was the challenge of addressing climate change through Brazilian environmental policy and the related actions and omissions from the Brazilian government, especially as those relate to the Climate Fund’s financial resources.

Case ADPF 708 (Climate Fund case) involves Brazil’s Climate Fund, established by the Brazilian government in 2009 as a financial instrument of the National Climate Policy Plan. In June 2020, four political parties brought the case against the Federal Union, alleging that the government’s inaction regarding the Climate Fund is a violation of constitutional and international obligations, particularly since President Bolsonaro has failed to allocate  funds into climate mitigation and adaptation projects.

The plaintiffs seek a declaration of ‘unconstitutional omission’ against the paralysis of the Fund’s operations and governance and an injunction compelling the government to reactivate the Climate Fund. In response, the federal government has argued that there is no constitutional question as the Constitution does not explicitly mandate the creation of a Climate Fund. The facts in question relate to the management of funds, a prerogative of the federal government. The government also argued the court’s interference would constitute a violation of the separation of powers doctrine, following the pattern of most climate litigation cases worldwide (for more background on the case, see here and here).

From a comparative perspective, Joana Setzer notes that the Climate Fund case is the first climate case to reach Brazil’s Supreme Court, the first to be brought by political parties, the first to address insufficient governmental action to finance climate change mitigation and adaptation measures, and the first in which the highest Court is convening a public hearing (broader than a hearing with interveners) to collect additional factual information before giving its ruling.

Expansion of Public Participation

The public hearing took place on 21–22 September 2020 at the Supreme Court (recording available here). For the first time, the country’s highest court dealt with the subject of climate change. The hearing was historic. Minister Barroso opened the hearing by stating his aim to hold a “plural” conversation, allowing an opportunity for all sides to present their views. Over two days, 66 experts provided their thoughts on climate change in Brazil. These included scientists, environmentalists, indigenous people, businesspeople from the agribusiness and financial sectors, NGO representatives, economists, researchers, parliamentarians, and representatives of the federal and state governments. Noting that climate issues are not only a legal, but rather interdisciplinary, issue, the Court sought to expand public participation by convening the unprecedented public hearing. This expansion of procedural rights follows the recently-adopted Escazú Agreement mandate, which Brazil has signed but not yet ratified. As the first environmental treaty for Latin America and the Caribbean, the agreement implements Principle 10 of the Rio Declaration. It seeks to ensure that all people have access to timely and reliable information and can access justice regarding environmental matters.

Right to a Healthy Environment

In their petition, the plaintiffs relied heavily on art. 225 of Brazil’s Constitution, which acknowledges the right to an ecologically balanced environment and the obligation to protect the environment and fight pollution, and preserve forests, fauna, and flora. In his decision to hold a public hearing, Minister Barroso had stated that “environmental protection is not a political option, but a constitutional duty.” From this, the Minister concluded that this state of affairs affects each person’s right to a healthy environment, as well as other fundamental constitutional rights, such as the right to life, health, food and water security, housing, work, and could impact “the right to cultural identity, the way of life, and the livelihood of indigenous peoples…”.

Indeed, following a global trend (see, i.e., Future Generations v. Ministry of the Environment and Others), human rights took a central role in the discussions. The civil society highlighted the connection between climate change and fundamental rights, similarly, associating art. 225 to various other constitutionally rights. Conectas – a Brazilian human rights NGO – specifically noted how the right to a healthy environment now includes the right to a stable and safe climate system for present and future generations. Notably, the UN Special Rapporteur on the environment and human rights, David Boyd, recalled international obligations assumed by Brazil and the unconstitutionality of the current state of deforestation. Joana Setzer, a global specialist in climate litigation, explained how courts have dealt with an apparent conflict of separation of powers through a duty based on human rights grounds to act in protection of a stable climate. Setzer used comparative law, bringing recent decisions from Colombia, Ireland, the Netherlands, and the USA.

Disagreement on the Facts

Minister Barroso, the presiding judge for the case and the hearing, had called the hearing to factually understand the current state of Brazil’s climate change policies from a broad range of perspectives. He repeatedly reinforced the need to deal with the facts, and not “create an imaginary and parallel reality.” The Minister declared that the Supreme Court would judge the case based on facts, the constitution, internationally agreed commitments, and the national legislation.

Yet the discourse of current and past public officials was significantly different. The former environmental Minister, Izabella Teixeira, emphasized the country’s historical role as a leading power in the global architecture on sustainable development, which has significantly diminished lately. Current high-level government representatives, on the other hand, questioned the anthropogenic causes of global warming, disqualified data on deforestation of the Amazon rainforest, and dismissed the forest fires as natural phenomena. Ironically, while experts addressed climate change in Brazil, President Bolsonaro took the international stage at the UNGA’s 75^th session, categorically denying facts and numbers, arguing there is a disinformation campaign about the Amazon, and that Brazil remains a leader in the conservation of tropical rainforests. Furthermore, Bolsonaro denied the spread of forest fires, which, he argued, are limited to areas surrounding the forest, led by indigenous groups.

After the first session, mostly focused on government representatives’ testimonials, most specialists called on the government to give full effect to the governance mechanisms of environmental and climate policy. Still, some government officials acknowledged a few shortcomings in current policies, such as the reduced enforcement of environmental regulation and the implementation of existing environmental laws.

Amazon Rainforest

With unprecedented rates of deforestation and forest fires, the Amazon rainforest featured prominently in the hearing’s discussions. Minister Barroso recalled a similar case currently pending at the Court, ADO 59, related to the Amazon Fund, under the presiding Minister Weber. A public hearing will similarly be held on October 23^rd and 26^th, focusing specifically on the lack of implementation of the Amazon’s environmental policies and allocating funds from the Amazon Fund. Minister Barroso was particularly interested in the Amazon rainforest’s role in climate change policy by absorbing a significant portion of global emissions (see here and here for an analysis of environmental policies on climate mitigation and adaptation in the Amazon). The Minister expressly indicated that both cases could eventually be considered jointly.

Several scientific specialists explain the most significant omission from the current government regarding the increasing deforestation and forest fires rates. These affect the environment, the economy, and Brazil’s public image at the international level. The government’s reluctance to take adequate measures has already affected foreign financial assistance and trade agreements. Armínio Fraga, formerly from the Brazilian Central Bank, specifically addressed the significance of environmental crimes globally, which risk agribusiness and energy supply, making the country less attractive for foreign investments (more on it here). Scientists categorically explained the role of human activity on global warming, specifically from illegal activities, and Brazil’s contribution to GHG emissions. The Amazon region significantly suffers from the lack of proper land destination, which encourages deforestation, illegal invasions, and crimes.

A Pattern of Regression

Civil society organizations, such as Greenpeace Brasil, Instituto Socioambiental, IMAZON, and WWF-Brasil, exposed data and statistics on the dismantling of environmental and climate governance, the significant reduction of the budget of environmental bodies; the lack of allocation of existing resources; an abrupt and considerable decrease in fines and seizures by Ibama; the paralysis of sanctioning processes; and the deregulation of environmental standards. Transparency Internacional Brasil and Human Rights Watch considered how environmental destruction and the weakening of control bodies are intrinsically related. Organized crime networks benefit from illegalities that degrade biomes and promote violence, attacks on environmental defenders, and corruption.

Potential Solutions

Suggesting ways to safeguard the Amazon, experts noted the role of transparent monitoring of deforestation, a coherent public policy of innovation and promotion of technology and entrepreneurship, and the potential of the Amazon the basis of a renewed Brazilian economy, based on the creation of high value-added forest product production chains, agroforestry systems and the valorization of socio-biodiversity and local knowledge. Minister Barroso specifically called for a compelling low-carbon development agenda.

Companies such as Natura and Itaú Unibanco presented their proposals and commitments to care for the Amazon rainforest. Natura committed to zero deforestation by 2030 and already known initiatives to distribute benefits with local communities. Itaú Unibanco, along with Santander Brasil and Bradesco, outlined proposals to confront the forest’s critical state, such as improved due diligence of finance projects and a commitment to refuse credit to companies that promote illegal deforestation, as well as support the regularization of lands in the region.

Uncontroversial points

There is no estimated timeline as to when a ruling can be expected. Yet the case will likely advance climate litigation in Brazil. At the end of the hearing, Minister Barroso summarized the “uncontroversial” points from the debate. These include:

1. Brazil is among the seven highest emitters of greenhouse gases. However, unlike significant emitters, such as the United States and European countries, whose contribution relates to progress, industrialization, and consumption, Brazil’s emissions result from criminal activities that include deforestation, illegal logging, illegal mining, and land grabbing.
2. Deforestation and forest fires significantly grew in 2019 and 2020.
3. IBAMA, Brazil’s federal environmental agency, significantly reduced fines and embargoes imposed, showing reduced environmental laws enforcement.  
4. Until the case was brought, the government had not approved the Plan of Application of Resources of the Climate Fund, nor allocated any resources.
5. Global financial sectors and consumers threaten to boycott Brazilian products, showing the economic impact of – the lack of – environmental policies.
6. Despite having reached 20% of deforestation in the Amazon in the last 50 years, the region’s GDP is stagnant at 8%, showing that the forest’s destruction does not correspond to an increase in human development or regional economic growth.
7. The development of a well-managed agribusiness is compatible with forests’ protection and does not require additional deforestation.
8. The Climate Fund plays a vital role in achieving international goals, such as emission reduction goals.
9. Environmental protection is not a political choice: it is a duty of the State.

Conclusion

The Climate Fund case represents one of the first significant cases promoting strategic climate litigation in Brazil, questioning the deregulation of environmental law, and climate law. Simply hosting the public hearing was significant as an opportunity – and an innovative proposal from the court – to expand the dialogue on Brazil’s climate policy. The public environmental policy requires different parties to work together to address the problem of deforestation and climate change. The court understood that the topic goes well beyond the parties of the case, and it was essential to listen to experts from a broad range of sectors, presenting opinions from all sides.

Throughout the hearing, it became clear – if it wasn’t already – that environmental policy is a constitutional matter and should therefore be discussed at the highest court in Brazil. In addition to its significance in assessing the State’s constitutional obligations on climate policy, the case also invites an assessment of the use of international law to address climate change nationally. Following a trend initiated by other climate cases worldwide, it brings explicitly international agreements as binding sources that could be enforced at the national level. Thus, the case invites a legal analysis from the court on whether the Climate Fund and other national mechanisms and policies are adequate to implement the commitments made by Brazil at the international level through its nationally determined contributions. If the country does not have the necessary mechanisms to comply with the international commitment, what can courts do? The court will significantly analyze these questions in the coming months.