Brazil Fights Itself: Climate Litigation Against Incoming Backfire

[Guilherme Pratti is a PhD candidate in Philosophy of Law at Sant’Anna School of Advanced Studies, Pisa, Italy, and a member of its Center for Inter-Legality research. He is currently a visiting PhD scholar at Copenhagen Business School]

I – From ‘only a handful of cases’…

On February 2020, leading scholars on climate change policy and litigation, Joana Setzer and Lisa Benjamin, published a piece entitled Climate Change Litigation in the Global South: filling the gaps, stating (p. 59) that Brazil had “a promising but still untested legislative toolbox for climate litigation”, alongside “a robust legal system, a well-established judiciary, and a wide range of independent political actors with legal capacity to file class actions involving state and private liability for environmental and human rights offences”. At that time, as the authors noted (p. 60), “only a handful of cases” had “mentioned climate change as an issue related to the claims”. Previously to Setzer and Benjamin’s statement, Gabriel Wendy, in a 2017 piece, had declared climate litigation in Brazil to be still “recent and fragile” (p. 23).

The present Brazilian landscape is now very different from that of 2020. One can now affirm that “climate litigation emerged as a clearer movement in Brazil” (Setzer, Carvalho, 2021, p. 199), as part of a wider transnational one. With this statement as its backdrop, this post tries to demonstrate against whom the current national wave of climate litigation is fighting, why and how. In other words, the Brazilian legislative toolbox and its broad range of legal tools are being put to a stress test by a variety of actors, which is giving rise to a particular climate change litigation experience.

II … to a clear movement

According to the leading databases maintained by the Sabin Center and the Grantham Research Institute, Brazil has had so far at least twelve filings since February 2020. However, for the purposes of this post, and in order to gather as much cases as possible, I am considering as climate cases also those in which climate change adaptation or mitigation concerns are among the main drivers of the legal reasoning of the claim. Hence including the ones that, at first sight might seem as purely concerned with institutional design, administrative bureaucracy or environmental protection per se, but might influence the climate-driven agenda. This study thus deals with twenty climate cases, including the initial ‘handful’ that only mentioned climate change as a peripheral issue.

III – Stress-testing the legislative toolbox…

Of the sample here considered, four cases were filed in 2019, twelve in 2020 and four in 2021.Seventeen out of twenty were filed against the Federal Union (Federal Government and Federal Administration’s bodies). The other three cases were filed against a private person, a private company and the State of São Paulo, respectively. The analysis that follows divides the twenty-case sample in two groups: those in which the Federal Union is not the defendant and those in which it is. Although this post offers an overview of the first group, its focus is to discuss the second, that is, the ‘against-the-Union’ cases.

The first group of cases has two tort cases and a motion to exhibit documents. In the first tort case, from 2019, the Federal Environmental Agency sued the ‘Steel Company São Luiz ltda’ and its managing partner, for the Company’s longstanding use of illegally acquired coal. In the second one, from 2021, the ‘Amazon task force’ from the Public Prosecutor’s office sued a private person, responsible for deforesting an area of approximately 2,500 hectares of the forest.

Both tort actions claim environmental and climate damages, in accordance with article 225 of the Constitution (right to an ecologically and balanced environment), the National Policy on Climate Change (PNMC) and the National Policy on the Environment (PNMA). The Amazon taskforce case additionally raised some well-tailored arguments, obiter dictum, based on the United Nation’s Framework Convention on Climate Change (UNFCCC), the Paris Agreement, the American Convention on Human Rights and the Copenhagen Accord.

The last case of the first sample group is a motion against the State Government of São Paulo. The plaintiffs (members of the ‘Families for Climate’ movement) sustain that a 2020 State’s subsidy to promote the automotive industry lacked due scrutiny regarding greenhouse gases emissions. Their argument is that it violates the State’s Policy for Climate Change (PEMC), the PNMC and the Constitution, especially so article 225, and so they claim for a preliminary injunction to force the State’s Government to exhibit the studies that justify said subsidy, if these exist. This would allow a proper class action against the policy itself.

The second group of cases is what I argue to be the core of the Brazilian climate litigation at the moment. From the 17 ‘against-the-Union cases’,ten were filed at the Federal Supreme Court (STF); three at the federal judiciary section of the State of Amazonas; and four distributed before the federal sections of the States of Rio Grande do Sul, Paraná, São Paulo and the Federal District, respectively. Climate litigation is therefore present in four out of five of the administrative regions of the federation, e.g., North, Center-west, Southeast and South – the Northeast being the only region so far without a case.

This core-defining second group of cases can be distinguished in two categories of claims due to their goals. On the one hand, those against specific actions taken by the Federal Administration, aimed at undoing or modifying rules (presidential decrees, resolutions, ordinances, etc) and institutional or administrative changes. On the other hand,those filed due to the Government’s passiveness regarding illegal activities happening in two of the national biomes (Amazon and Pantanal) and reluctance to apply the existing specific normative frameworks.

The first category within this core-defining group sample amounts to seven cases that aim at annulling or modifying federal norms. Four of these were brought before the STF (cases ADPF nº 592, 623, 747 and 755) and three before the federal judiciary sections of Amazonas, São Paulo and Federal District. They respectively aim at: a) annulling parts of the presidential decree nº, 9.760/2019, for practically extinguishing civil penalties and administrative fines in cases of environmental harm, leading to “total amnesty for environmental pollution” (case ADPF 592, p. 3);  b) restoring the national sanctioning proceedings that were practically frozen by self-contradictory procedural modifications (case ADPF 755, pp. 15-32) created via the presidential decree nº, 9.760/2019; c) annulling parts of the presidential decree 9.806/2019, that virtually extinguished civil society seats at the National Environmental Council (CONAMA) and changed the selection procedures for them (case ADPF 623); d) annulling an internal resolution issued by the new composition of the CONAMA, which dangerously relaxed national protection standards on areas of permanent protection (case ADPF 747); e) reversing the IBAMA’s decision to relax federal requirements to export extracted wood (effectively legalizing illegal logging production); f) annulling the national 2021 Paris Agreement’s National Declared Contributions (NDC) due to an alleged ‘accounting trick’ to rise GHG emissions by tempering the measurement methods.

The seventh and last case of this category can be seen as an example of what Setzer and Savaresi (2021, p. 17) defined as rights-based cases “that do not align with climate objectives”. In it a group of oil distributors argue that the Ministry of Energy’s ordinance that determined the CO2 reduction target for the year of 2021 did not abide by the necessary procedural obligations, and so the plaintiffs seek an injunction to not fulfil the ordinance’s target in full, but only a quarter of it.

The second category within this core-defining group sample consists of ten cases aimed at forcing the Federal Administration to properly act on (and thus apply) the environmental and climate oriented normative frameworks. They all urge against the current Administration’s indifference towards environmental and climate harms.

This is the example of the two so-called ‘Amazon and Climate funds cases’ (cases ADO 59 and ADPF 708, respectively), in which four political parties jointly argue that from 2019 to June 2020, the Government restrained almost all the budgets of both Funds and so the activities that depended on them were practically frozen for a year and a half. These are the national financing mechanism for the vast majority of Amazon preservation and climate-oriented policies. In the claim known as the ‘Amazon Fund case’ there is a rather powerful statement (p. 10), that accurately depicts the overall leitmotiv of the core-defining ‘against-the-Union’ of cases: “the government began to implode all environmental protection programs, especially so through budget cuts. And, unfortunately, the Amazon Fund was one of its first targets”.

The remaining eight cases of this second category target the Government’s: a) omissions in regard to the fires that took over the Amazon and Pantanal biomes between 2019 and 2020, for it stood in awe and did not deploy national mechanisms to contain the environmental devastation and climate-damaging events (case ADO 54, cases ADPF nº 743, 746, 760); b) omission to implement command-and-control measures to contain illegal environmental activities in the Amazon (MPF v. Union et al); c) lack of efforts to define goals and policies to reduce CO2 emissions (IEA v. Union); d) omission to set climate change concerns for thermoelectric power plants (Inst. Preservar v. Ibama et al) and to update the National Policy on Climate Change (PNMC) according to the best available science (Observatório v. Union et al).

Sixteen out of the seventeen ‘against-the-Union’ cases rely on the national framework for environmental and climate protection, such as article 225 of the Constitution (fundamental right to an ecologically balanced environment), the PNMA and PNMC, the Action Plan for Prevention and Controlling of Amazon Deforestation (PPCDAm), the National Strategic Plan for Protected Areas (PNAP) and international instruments, being the UNFCCC, the Paris Agreement and the Rio Declaration the ones most cited. These legal instruments have been combined with strong lines of legal reasoning arguments such as the responsibility and solidarity to the rights of future generations, the State’s fundamental duty to protect the environment, the claim for a fundamental right to climate stability and the principles of prohibition of insufficient protection of the environment and of socio-environmental and ecological retrogression.

IV – …against incoming backfire

The interweaving of International Environmental Law and national laws as done in the core-defining group of ‘against-the-Union cases’ may open new possibilities for environmental and climate concerns in Brazil and elsewhere. With it, new lines of argumentation for future climate litigation seem to be at the horizon, somewhat hinting at the inseparability of national and international legal instruments when it comes to domestic climate litigation.

The particular Brazilian climate litigation experience is a prime example of how the environmental and climate-oriented normative frameworks can be undermined from the inside, through a variety of ways (budgetary restraints, hollowing of civil participation in the institutional decision-making process, and by bluntly ignoring illegal activities that cause environmental and climate harms). One may thus say the national legislative toolbox is being tested on both ends: for on the one hand the Government either acts to dismantle it or does not act to implement it; while on the other, civil society and State entities are strongly engaged in keeping these (in)actions under scrutiny to prevent the domestic normative framework, slowly built in the last three decades, from being watered down and rendered ineffective. Rather than advancing environmental and climate actions in accordance with the needs of the present and future generations, the current Federal Administration is doing the opposite of what is constitutionally expected of it (article 225 of the Brazilian Constitution). As a result, stakeholders are not able to properly push a more progressive climate-driven agenda. Instead, their immediate goal is limited to standing ground.

As the core-defining group of cases demonstrate, Brazilian climate litigation is a reaction against the governmental incoming backfire. That is, the preemptive tactic of checking and stopping the advancement of climate and environmental actions by forcing stakeholders to focus on how to avoid regress instead of pushing for progress. The Federal Supreme Court is expected to rule seven of the ten cases under its jurisdiction during this month, which may represent a watershed in the country’s climate litigation scenario. While Brazil fights itself, attention to this type of governmental tactic should become an integral part of the climate-agenda analysis in countries facing a rise in climate litigation and authoritarian anti-environmentalism, for it offers a valuable comparative analytical tool to guide strategic action.