Authors: Maria Antonia Tigre & Natalia Urzola
The right to a healthy environment is gaining traction in courts as an emerging trend for environmental and climate protection. While most academic attention has focused on cases before European and US courts, the Global South is not falling behind. Environmental constitutionalism, wich is the recognition that the environment should be protected through constitutional texts and by constitutional courts is critical in advancing the right to a healthy environment, a prominent aspect in Latin American countries. Courts have played an active role in interpreting constitutional provisions and strengthening their implementation and enforcement, showing how the right to a healthy environment can be applied in practice.
Some recent decisions come from Brazil, a leading country in innovating environmental legal matters, particularly the right to a healthy environment. In recent years, the country has faced a series of environmental rollbacks. From increasing deforestation to lack of support to environmental institutions and climate denial, the current Brazilian government has shown a constant backsliding in environmental protection. While this aspect has brought severe consequences for the country, these have simultaneously become fertile ground for groundbreaking court decisions. For example, a group of political parties filed two lawsuits before the Brazilian Supreme Court (STF) in 2020: the first calls the government to resume activities of the Amazon Fund; the second aims at mobilizing and reactivating the National Fund on Climate Change. A two-day public hearing was held on the Climate Fund case, where 66 experts were heard in an interdisciplinary approach enabling broad public participation in a global dialogue on climate change. Both cases are still pending. A similar hearing was then held on the Amazon Fund case, aiming at understanding the broad range of expertise related to the case.
Following the innovative decisions from Brazilian courts that defined 2020, the STF issued three decisions in October 2020 in which the right to a healthy environment was center stage: ADPF 747, 748 and 749. These correspond to separate petitions brought by the Workers’ Party (Partido dos Trabalhadores), the Brazilian Socialist Party (Partido Socialista Brasileiro), and the Sustainability Network (Rede Sustentabilidade), against the same resolution issued by the Conselho Nacional do Meio Ambiente (CONAMA). The challenged resolution revoked the following resolutions: (i) 84/2001, on permitting procedure for irrigation activities and the requirement of environmental impact assessment for such activities, (ii) 302/2002, on a minimum requirement of areas of permanent preservation (áreas de preservação permanente – APP) on artificial reservoirs, and (iii) 303/2002, on areas of permanent preservation, and, specifically, considered that areas of dunes, mangroves and restingas have a fundamental role in the ecological dynamic of coastal zones. The plaintiffs argued that the amendment authorized environmental permitting for the burning of solid waste in cement kilns in industries, which includes materials of harmful potential, such as plastic packaging for pesticides. Additionally, the exploitation of mangroves would be allowed, effectively risking further environmental degradation and the loss of biodiversity.
This blog post highlights the underlying concepts on which the court’s reasoning relied, as follows: (i) the right to a healthy environment and its related principles, (ii) implications on international commitments, (iii) climate change litigation in Latin America, and (iv) human dignity.
- The right to a healthy environment, the principle of non-regression, and the precautionary principle
When deciding on the precautionary measures requested in these cases, the STF ordered the suspension of the challenged resolution. The court heavily relied on the right to a healthy environment in its reasoning. Citing article 225 of the Brazilian Constitution, it explicitly mentioned that the revoked resolutions included relevant rules for the conservation of biodiversity and natural ecosystems, hence by revoking them, the challenged resolution infringed the “right to an ecologically balanced environment”, as well as constituted a breach of the “duty to defend and preserve [the environment] for present and future generations”, both included in article 225. The court also referred to international instruments of environmental protection, such as the Convention on Biological Diversity, Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, also known as the Washington Convention, and Rio Declaration on Environment and Development to establish the responsibilities of the Brazilian government regarding environmental protection.
Building off on this, the court relied on the principle of non-regression, stating that the challenged resolution created a legal vacuum as it revoked rules of environmental protection without providing an alternative legal solution. While the resolutions could be adjusted to better reflect the current legal framework, as it merely revoked them, the lack of regulation would mean a rollback on existing protective measures. In doing so, it contravened the constitutional framework. The principle of non-regression acts as a barrier to backsliding on environmental laws and existing levels of protection, while granting protective norms the status of non-revocable. Regression can take many forms: refusing to adhere to international environmental treaties, boycotting their implementation, or revising directives or legislation. In any case, reducing means of protection can render environmental rules ineffective, thus infringing this principle. International recognition of the principle could avoid similar situations. The draft Global Pact for the Environment specifically proposes its recognition.
The court also invoked the precautionary principle, which has been widely developed by the Brazilian jurisprudence. The court underscored the need to manage risks in a way that is compatible with environmental protection, even in cases of scientific uncertainty. The precautionary principle, which provides a foundation for a preference for preservation rather than restoration, thus supported the adoption of precautionary measures. Rather than waiting to act after the damage is done, the principle makes a call to action; it addresses the question of how to proceed in the face of unavoidable uncertainty, thus becoming crucial for preventive justice. The court explicitly cited the Lhaka Honhat case from the Inter-American Court of Human Rights (IACtHR) as a precedent to underscore the need to adopt measures ex ante the occurrence of environmental damage (see duty to prevent).
- The constitutional principle of human dignity and the integrity of the environment
In addition to using the constitutional right to a healthy environment as a legal basis for adopting precautionary measures, the court referred to human dignity as a constitutional principle and a thread for ensuring the protection of the right to a healthy environment. This is one of the most innovative aspects of the decisions and can open the door for future legal strategies that also rely on that argument. The court specifically uses the constitutional protection of human dignity (as well as the rights to health and life) as an additional argument on why environmental degradation is unlawful. Additionally, it uses the Rio Declaration (principles 1 and 3) to link the protection of human dignity, which includes the protection of the environment as a way to ensure present and future generations a dignified existence as environmental protection is directly linked to human rights. The recognition of human dignity as an additional legal argument for environmental protection strengthens the right to a healthy environment, further supporting the relationship between human rights and the environment. In particular, the court discussed the integrity of the environment, which could be construed as a developing rationale related to the rights of nature paradigm. Groundbreaking as it is, this is a mostly underdeveloped field, but one that could be explored in more depth in future cases.
- The implications of the CONAMA resolution and Brazil’s international commitments
Taking into consideration the international commitments the country has regarding environmental protection, some of which were identified in Section 1, the court further considered that the scenario proposed in the challenged resolution could hinder the country’s compliance with, and could prevent it from maintaining an efficient environmental policy. The court cited IACtHR’s Advisory Opinion OC-23/17 and the Lhaka Honhat case, stating the need to protect the right to a healthy environment in both its individual and collective dimensions, as well as the rights of future generations.
The court mentioned the need to harmonize sustainable development with other rights such as the right to life and health of both present and future generations since environmental protection is a precondition for the enjoyment of said rights. In doing so, the court further highlighted the underlying link between the enjoyment of human rights and the protection of the environment. This link has been extensively developed in the last decade, especially through the work of the Special Rapporteur of Human Rights and the Environment.
- Climate change litigation in Latin America
Although climate change is not specifically mentioned in the decisions, these could pave the way for future litigation on this front. Given the content of the right to a healthy environment and the environmental principles invoked, it can be asserted that measures directed towards preventing further climate change effects should also be adopted before it is too late. With deforestation on the rise in Brazil, especially in the Amazon rainforest, the adoption of these measures is even more pressing. The significance of the Amazon rainforest for climate regulation and the threat to global climate due to regional deforestation raises the profile of this issue. With the increase in climate litigation in the region, we will likely see a rise in related cases. This jurisprudence increases their likelihood of success, further solidifying the arguments in favor of human rights-based environmental protection.
Moreover, in the ADPF 747, 748 and 749 cases, the STF was emphatic in asserting that economic activities cannot be exercised when they infringe the right to a healthy environment. The court is, hence, opening the door for future litigation that may concern industrial activities, such as those that contribute the most to the climate crisis. The court’s reasoning can be construed as a starting point for claiming that anthropocentric activities must align with environmental protection and pushing the scale in favor of nature when in conflict with economic interests (implicitly furthering the in dubio pro natura principle), a significant aspect in debates surrounding climate change mitigation and adaptation.
The recent ADPF 747, 748 and 749 decisions provide a new avenue to strengthen the right to a healthy environment. By focusing on its understanding as a constitutional mandate and delving into the content of environmental principles such as non-regression and the precaution, the STF dived into the true meaning and extent of this constitutional right. Moreover, the decisions underscored the direct effect the challenged resolution has on the fulfilment of international commitments, and the reasoning applied could help advance climate litigation. Finally, the reference to human dignity as a critical principle for protecting the integrity of the environment shows how relevant case law is for developing environmental law. The decisions are the definition of landmark and can pave the way for future litigation that further sets these concepts, both in Brazil, the Latin American region, and worldwide.