Maria Antonia Tigre & Alex Goodman
This week, on September 21 and 22, 2020, the Brazilian Supreme Federal Court (STF) will hold the country’s first public hearing on environmental and climate policy. The hearing, on Case ADPF 708 (previously ADO60), has the goal of producing an official report on the state of Brazil’s environmental policy. In calling for the public hearing, STF Judge Luís Roberto Barroso stated that the country’s inaction, if proven, is “potentially harmful from any perspective: environmental, social, cultural or economic.”
Case ADPF 708 involves Brazil’s Climate Fund, which was established in 2009 as a financial instrument of the National Climate Policy Plan. The Climate Fund is mandated to direct its annually authorized budget to projects, enterprises, and studies that are working towards climate change mitigation and adaptation. The Secretariat of Climate Change, overseen by the Ministry of the Environment, is responsible for the Climate Fund.
On June 5th, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission, alleging that the Brazilian government inaction regarding the Climate Fund is a violation of its constitutional and international legal environmental obligations. The Climate Fund was established in 2009 as a financial instrument of the National Climate Policy Plan. The Fund operates from an annually authorized budget and is directed to appropriate resources to projects, enterprises, and studies that address climate change mitigation and adaptation.
The plaintiffs allege that the Climate Fund’s operations and governance have been paralyzed and effectively defunct under the Bolsonaro administration in 2019-2020. According to the plaintiffs, only R$ 718 thousand of the Fund’s authorized R$ 8.050 million budget was actually used in 2019, and that the BNDES, the bank which manages the fund, did not receive its expected transfer of R$ 543 million earmarked for environmental projects. They challenge the government’s failure to appropriate the Fund’s authorized budget. Additionally, the plaintiffs question the government’s dissolution of the Secretariat of Climate Change, the government agency responsible for the Fund, as the stripping down of the Fund’s institutional governance. These actions have furthered a disregard from the current administration of environmental policies, leading to a trend of environmental regression.
The plaintiffs therefore request the Court’s issuance of (i) a declaration of the Brazilian government’s unconstitutional omission and (ii) an injunction that compels the government to actualize 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 to promptly develop plans for the next two years on channeling the Fund’s resources.
The plaintiff’s claims rely on Brazil’s international commitments, constitutional obligations, and accountability to protecting emerging fundamental rights, such as the right to a healthy environment. In its petition, the Plaintiffs recalled the precautionary principle and Brazil’s commitments under the Paris Agreement and argued 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 argued 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 recognizing the right to a healthy environment.
In his decision to hold a public hearing, Judge Barroso stated that “environmental protection is not a political option, but a constitutional duty,” and noted that the situation of Brazilian environmental policy has “exponentially worsened in the last year and a half.” From this, Judge Barroso concluded that this state of affairs affects each person’s right to a healthy environment, as well as other fundamental rights that the Brazilian constitution protects, such as the right to life, health, and security of food and water. The Judge went even further, by indicating that the worsening state of Brazil’s environment is linked with fundamental rights to housing, work, and could impact “the right to cultural identity, the way of life, and the livelihood of indigenous peoples…”.
The public hearing is expected to engage a multi-sectoral range of voices – from government and academics, conservationists and the private sector – who will have a forum to weigh in on questions that could both elevate new climate litigation and deepen the foundation for emerging fundamental rights, such as the right to a healthy environment.
On the morning of the first day of the public hearing, government authorities will take the floor, including Vice President (General) Hamilton Mourão, President of the House Rodrigo Maia, and President of the Senate Davi Alcolumbre. Various Ministerial representatives are expected to present, hailing from Ministries as divergent as Mining and Energy to Justice and Public Security to Technology and Innovation. Other key representatives during the hearing’s first presentation including the President of BNDES, the President of IBAMA (Brazil’s environmental agency), Directors and technicians from FUNAI (Brazil’s indigenous agency), regional environmental departments, and the President of Federação das Indústrias de SP.
Later that afternoon, representatives from various NGOs and research institutes will participate in the hearing. Among the national organizations presenting will be the Articulacão dos Povos Indígenas do Brasil (APIB), the Centro de Empreendedorismo da Amazônia, the Instituto do Homem e Meio Ambiente da Amazonia (IMAZON), and the Instituto Socioambiental, among others. Various international organizations are expected to present as well; including UNEP, Greenpeace Brazil, the World Wide Fund for Nature (WWF), the Nature Conservancy (TNC), and Human Rights Watch.
On the second day of the public hearing, expect to see the morning dominated by academia and researchers, including presentations by Brazil’s leading universities, such as USP and PUC, as well as global institutions, such as Columbia University and LSE (Grantham Institute). During the afternoon, private sector companies and financial institutions will weigh in on the discussion. Among the companies expected are Natura Basil, Vale do Rio Doce, AMAGGI, Suzano Papel e Celulose, and Agropalma. Financial institutions entering the forum include Itaú, Bradesco and Santander, and representatives from the World Bank and the Frente Parlamentar Agropecuária.
This case effectively expands the role of the judiciary in determining environmental and climate policies, following a global trend that has been observed worldwide. Another similar case was brought by the same parties, this time questioning Brazil’s handling of the Amazon Fund, which has a significant role in curbing deforestation in the Amazon region through REDD+ projects. A similar public hearing will be held in October. Throughout this semester, the country’s highest court will weigh in on Bolsonaro’s environmental policies – or lack thereof – and likely open the door for new climate litigation cases to be brought in the future. Although Brazil has flooded the media with news of unprecedented fires and deforestation rates lately, these cases bring hope that we will soon have news of how democracy uses the balance of powers to effectively provide responses to the disregard of constitutional environmental rights.