First climate case reaches Brazil’s Supreme Court
Last week witnessed the public hearing of the first climate case to reach the Supreme Court in Brazil. Brought by four political parties from the Brazilian opposition against the Federal Union, the plaintiffs are seeking an injunction that compels the government to reactivate the country’s Climate Fund. Joana Setzer, who made a presentation to the hearing, reports from the Court and considers the wider significance of the case.
A new wave of climate cases filed in the last five years is reaching the Supreme Courts of countries around the world. Some of these courts have decided in favour of the plaintiffs, some against, while others – like the Supreme Court of Brazil – are currently in the process of deciding.
The ‘Climate Fund case’ is not only the first climate case to reach Brazil’s Supreme Court, it is the first to be brought by political parties (four in total), 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 (which is broader than a hearing with interveners) to collect additional factual information before giving its ruling.
Political parties in Brazil are allowed by the Constitution to pursue judicial relief on alleged violations of constitutional and human rights directly before the Supreme Court. With a long history of constitutional litigation, political parties now seem to be turning their focus to the adjudication of climate change.
The Climate Fund case was filed by four political parties of the opposition: the Brazilian Socialist Party (PSB), the Socialism and Freedom Party (PSOL), the Workers’ Party (PT) and the Sustainability Network. On the same day the same parties filed a connected case before the Supreme Court, dealing specifically with the Amazon Fund.
The lawsuit is an Action for Non-compliance with Fundamental Precept (ADPF in Portuguese). It seeks to compel the Ministry of the Environment to resume the disbursement of the National Fund on Climate Change (‘Climate Fund’) and to reactivate its governance bodies. The Climate Fund was established by law in 2009 under the National Climate Change Policy to finance mitigation and adaptation projects. Its funding comprises royalties from oil exploration, among other sources.
The government agency responsible for the Climate Fund was dissolved by the Minister of the Environment, Ricardo Salles, during the first months of President Bolsonaro’s administration. In April 2019, a decree by President Bolsonaro extinguished the steering committee of the Fund, leaving it inactive. In response, the plaintiffs seek a declaration of ‘unconstitutional omission’ against the paralysis of the operations and governance of the Fund.
In their petition, the Plaintiffs recall the precautionary principle and Brazil’s commitments under the Paris Agreement and argue that failing to implement the Climate Fund is one of many examples of how Brazil is disrespecting its “legal obligation to implement measures that are compatible with the achievement of these goals”. The plaintiffs argue that Brazil’s inaction on the Climate Fund is a violation of the federal Constitution’s Article 225, which provides that all government bodies must “protect the environment and fight pollution in any of its forms”, and “to preserve forests, fauna and flora,” in addition to recognising the right to a healthy environment.
The plaintiffs therefore request the Court’s issuance of a declaration of the Brazilian government’s unconstitutional omission and an injunction that compels the government to actualise the Climate Fund, by resuming operations and reactivating its institutional governance of the Fund. Specifically, the plaintiffs are requesting that the Ministry of the Environment immediately disburse the Fund’s existing resources and promptly develop plans for the next two years on channelling the Fund’s resources.
Upon admitting the lawsuit, STF Justice Luís Roberto Barroso called a public hearing to obtain an “objective and official account” of the state of Brazil’s environmental policy. Barroso also stated that the country’s inaction, if proven, is “potentially harmful from any perspective: environmental, social, cultural or economic”.
The public hearing: a case that “transcends legal matters”
The public hearing took place on 21–22 September 2020 at the Supreme Court, with attendance in person and remotely and with live broadcast and recording. The hearing marked a historic moment in the Supreme Court. Over two days, 66 experts were heard: scientists, environmentalists, indigenous people, representatives from the agribusiness and financial sectors, economists, researchers, parliamentarians and representatives of the federal and state governments.
Minister Barroso opened the hearing by stating his aim to hold a conversation that would be “plural”, an opportunity for all sides to present their views. He justified the hearing in that the case “transcends legal matters” and recognised that, in his opinion, climate change is “one of the most defining questions of our time”.
Having a Supreme Court convening such a hearing is unusual if not unprecedented. The Court noted that climate issues are not limited to the law; they are inherently interdisciplinary. Arguably, this approach helps to expand public participation in climate policy, a much-needed push towards climate democracy and access to information, including on points of science. A similar approach was taken by the Philippines Commission on Human Rights in its National Inquiry on Climate Change, with Commissioner Roberto Cadiz justifying the approach for enabling a global dialogue around climate change. And in the United States, when deciding on a lawsuit brought by the cities of San Francisco and Oakland against five major oil companies for public nuisance, U.S. District Court Judge William Alsup ordered a climate science tutorial to inform him of the scientific issues at hand in the case.
In search of the facts
The hearing showed how, beyond very different world views, high-level representatives of the Bolsonaro government and speakers from civil society and academia had remarkably distinct views on the matters involved in the case.
The Chief of the Institutional Security Cabinet (responsible for direct and immediate assistance to the President on matters of national security and defence policy), General Augusto Heleno, for example, affirmed that the anthropogenic causes of global warming “are still contested by many scientists” and disqualified the data on deforestation of the Amazon. He questioned criticism of the government’s omission to act against the fires, affirming that “there is no scientific proof that the increase in fire in primary forests is the result of government inaction. In fact, they have to do with natural phenomena, whose human action is incapable of preventing.”
The General suggested the lawsuit was a conspiracy to overthrow the government and that international non-governmental organisations were a part of this conspiracy, describing NGOs as being “manipulated by foreign powers” and using “false arguments, fabricated and manipulated figures and unfounded accusations to harm Brazil”.
Some of these arguments were repeated the following day by President Jair Bolsonaro in his speech at the UN General Assembly. The President denied that the Amazon is experiencing an increase in fires and attributed the responsibility to the traditional peoples of the region.
Several exhibitors stated that the government’s omission to respond to the increase in deforestation and burning damages Brazil’s image abroad and has concrete adverse effects on the business environment and the economy. They told of how the situation is causing Brazil to struggle to obtain international funding and seal trade agreements. (A more detailed summary can be found here.) These points were made especially by economists – including Armínio Fraga, Ricardo Abramovay and Sério Margulis, and by the scientist Carlos Nobre. Former minister Izabella Teixeira highlighted the fundamental role Brazil played in building the global architecture on sustainable development. With the reversal of political orientation, it is argued, Brazil loses the ‘soft power’ in international relations.
Leading scientists, including the Vice President of the Intergovernmental Panel on Climate Change, Thelma Krug, explained the unequivocal link between human interference and the warming observed since the mid-20th century. They also brought robust data on the trajectory of Brazilian greenhouse gas emissions and on the association between the disturbance of the climate system, biodiversity crisis and environmental crisis in Brazil.
The damage caused to the Amazon and the associated environmental and economic impacts occupied a prominent place in the debates, being present in all sessions, as was expected given Minister Barroso’s interest in the topic.
CEOs of Brazil’s largest companies presented their proposals and commitments for protecting the Amazon. The cosmetics group Natura exposed its commitment to zero deforestation by 2030, in addition to its existing initiatives for sharing benefits with local communities. The president of Brazil’s largest private bank, Itaú Unibanco, presented initiatives to improve the diligence of financing in not giving credit to companies that deforest illegally and in supporting land regularisation in the region.
Civil society organisations such as Greenpeace Brazil, Instituto Socioambiental, Imazon and WWF-Brazil provided data demonstrating the dismantling of the systems of governance and environmental and climate protection instruments in Brazil. They also highlighted the interconnection between climate change and fundamental rights, associating article 225 of the Constitution (right to an ecologically balanced environment) with several other constitutionally protected rights, such as the right to life, food, housing, culture and work. The UN Special Rapporteur on Environment and Human Rights, David Boyd, recalled the international obligations assumed by Brazil and pointed to the current situation of deforestation being unconstitutional.
I had the honour and privilege to speak to the Supreme Court. In my intervention I presented an overview of other climate cases decided by Supreme Courts around the world. In particular, I explained how other courts dealt with an apparent conflict resulting from the principle of separation of powers, emphasising that the State has a duty based on human rights grounds to act in protection of a stable climate.
At the end of the two days Minister Barroso concluded, presenting a list of what he called “uncontroversial” points that emerged from the debates, including:
- Brazil is among the seven largest emitters of greenhouse gases. However, unlike other countries where emissions are associated with progress, industrialisation and consumption (even with the known externalities), in Brazil they result from criminal activities that include deforestation, illegal logging, illegal mining and land grabbing.
- Deforestation and burning increased significantly in the years 2019 and 2020 in Brazil.
- There has been a significant reduction in fines and embargoes instituted by the federal environmental agency, Ibama.
- The government has not yet approved the Plan for the Application of the Climate Fund Resources, nor allocated the resources.
- Financial sectors and consumers around the world are threatening to boycott Brazilian products.
- Although Brazil has already deforested 20% of the Amazon in the last 50 years, the region’s GDP is stagnating at 8% [showing that deforestation does not automatically lead to economic gain].
- Environmental protection is not a political choice: it is a duty of the State.
What outcome should we be expecting?
It is not yet known when the ruling will be made and the result is uncertain. If the plaintiffs are successful, analysts expect that the case will advance climate litigation and climate law in Brazil. Other analysts anticipate that a decision of the Court on Bolsonaro’s environmental policies – or lack thereof – will likely open the door for new climate litigation cases to be brought in the future, showing that the balance of powers can provide responses to the disregard of constitutional environmental rights.
The statistics of the Brazilian Federal Supreme Court suggest that fewer than 8 per cent of 556 Actions for Non-compliance with Fundamental Precept (ADPF) filed since 2000 have been successful. Yet Justice Barroso, Rapporteur in this case, is considered one of the most progressive of the 11 Justices of the Court and the way in which the process has been conducted alone gives hope.
In his closing remarks Justice Barroso said: “Many points of view exist [in this case] and the truth has no owner. However, deliberate lying does, and one of our efforts here has been to identify narratives that are not supported by facts. This is a Court of Justice … our ruling is as objective as possible.”
In an increasingly polarised society, Justice Barroso’s words remind us that courts can play a role in reducing misinformation through evidence, and by promoting a shared understanding of reality on important matters such as environmental protection and climate action.
The recordings of the hearing are available on the YouTube channel of the Supreme Court (in Portuguese) in four parts: part 1, part 2, part 3, part 4.