Brazil Advances in Climate Change Litigation
A recent wave of cases is gaining momentum to guard the Amazon they usually differ from traditional environmental lawsuits in historic ways, writes guest contributor Silvia Fregoni.
Climate litigation is gaining momentum in Brazil as a tool to guard the Amazon rainforest from illegal deforestation. A recent wave of cases differs from traditional environmental lawsuits by highlighting the connections between preserving the Amazon and the climate, the grave risk of greenhouse gas emissions attributable to deforestation, and the critical role of the forest as a serious global carbon sink.
The timing of those climate disputes just isn’t accidental. The movement follows a worldwide upsurge in climate change-related cases, which have greater than doubled since 2015. The brand new wave of litigation also arose from the urgency of combating the rise in deforestation under the right-wing-oriented President Jair Bolsonaro, who left the federal government in January 2023 for the return of President Luiz Inácio Lula da Silva (Lula). Lula, who served as President of Brazil from 2003 to 2010 (and is the primary President within the country to return for a 3rd term), is understood for supporting policies to guard the environment and disenfranchised social groups. Deforestation within the Amazon decreased significantly (by over 70%) during Lula’s last two terms, while it jumped (about 60%) under President Bolsonaro.
The primary results of this wave of Brazilian climate litigation bring excellent news. And someway historical. Probably the most emblematic decision got here from the Federal Supreme Court, the very best Court within the Brazilian legal system, which ruled in July 2022 that the Paris Agreement is a human rights treaty. The Brazilian court became the world’s first to offer this status to the Paris Agreement, setting a very important precedent for Brazil and the world. “Treaties on environmental law are a sort of human rights treaty, and, for that reason, enjoy supranational status. There may be, subsequently, no legally valid choice to simply omit to combat climate change,” the ruling said. This “supranational status” signifies that these treaties are above the “regular” laws within the legal hierarchy. Accordingly, any Brazilian law or decree contradicting the Paris Agreement could also be invalidated.
With this ruling, the Federal Supreme Court resolved the primary climate dispute in its history, wherein 10 of the 11 ministers followed the opinion of the rapporteur, Luís Roberto Barroso, within the judgment. The court also ordered the State, considered remiss, to release the resources of the Climate Fund, a government program that goals to mitigate the impacts of climate change. The fund was arrange in 2009 as a part of Brazil’s national climate policy plan and have become inoperative in 2019 when President Bolsonaro stopped preparing annual plans and disbursing resources to support the mitigation projects. The choice was made in a lawsuit filed by 4 political parties (PSB et al. v. Brazil) to oblige the federal government to re-establish the mechanism and to ban the restriction of the revenues that make up the Climate Fund.
This landmark case makes Brazil join Colombia because the only two countries in Latin America to have the Federal Supreme Court explicitly recognize the necessity for motion on climate change. In Future Generations v. Ministry of the Environment and Others, from 2018, Colombia’s highest court ruled in favor of a gaggle of 25 children and youth recognizing that their “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem.” It further recognized the Colombian Amazon as a “subject of rights” in the identical manner that the Constitutional Court recognized the Atrato River, and ordered the federal government to formulate and implement motion plans to deal with deforestation within the Amazon. On account of the worldwide nature of climate change, these two cases are prone to influence not only Latin American countries but in addition others around the globe.
A choice from an appeals court within the case of the Institute of Amazonian Studies against the Brazilian State (IEA v. Brazil) can also be noteworthy. In a lawsuit filed in October 2020, rooted in domestic statutes, constitutional rights, and climate science, the IEA aimed to make the Brazilian government comply with its own climate policies and to get the judiciary to acknowledge the basic right to climate stability for present and future generations. Though a final decision just isn’t expected anytime soon, the Appeal Court contributed to the topic of climate change in Brazil, with potential consequences for future lawsuits, by outlining the differences between climate litigation and traditional environmental cases. The choice also included a lengthy discussion of climate litigation’s unique nature and importance. Such explicit acknowledgment can raise awareness of the climate crisis and affect how a court treats scientific evidences. Furthermore, climate cases have a broader scope than environmental cases, also specializing in intergenerational and global issues, and for now, it appears that evidently the Brazilian Judiciary has been very sensitive to those arguments.
In yet one more sign of goodwill on the a part of the judiciary towards climate problems, the Federal Supreme Court decided to listen to seven environmental cases on the identical day in March last yr, called the “Green Agenda” or “Green Package.” Two cases directly raise climate claims, while the opposite five take care of environmental issues that obliquely have climate implications. It was the primary time that the court had a complete day dedicated to environmental cases, and it shows the deliberate effort to make sure an environmental agenda within the country.
The outcomes of the litigation have been very encouraging. For instance, the court overturned the decrees of President Bolsonaro that excluded the general public from the deliberative council of official bodies related to the environment and the Amazon rainforest. It also barred the automatic granting of environmental licenses to medium-risk firms, stating that the licensing now must follow the procedures of the present environmental laws. Moreover, the Supreme Court determined that the federal government shall adopt all of the executive tasks essential to reactivate the Amazon Fund, and regarded that the decrees that altered the functioning of the Fund and interrupted the funding of recent projects were unconstitutional. The federal government created the Amazon Fund (which differs from the Climate Fund) to lift donations in order that investments may be made to stop, monitor, and combat deforestation. Norway and Germany are a few of a very powerful donors, but they froze fund transfers during President Bolsonaro’s government in retaliation for the environmental policy in practice.
After these positive outcomes, climate litigation has much more reason to grow in Brazil, targeting the federal government and personal actors. Also, the brand new government’s “zero tolerance” policy against deforestation, especially in Amazon, will likely result in more enforcement actions and prosecutions against firms that illegally harm the environment, including agrobusiness. Expectations thus far are optimistic.
Silvia Fregoni is a Brazilian corporate lawyer and J.S.D. candidate at Berkeley Law. She is a Robbins Fellow, Miller-ASIL fellow, and serves as a Research Associate for the Berkeley Center for Law and Business (BCLB) and the Berkeley ESG executive programs.