Brazil will have first climate litigation trials in the Supreme Court
By Isabela Soares Bicalho, Gabriel Mantelli, Maria Antonia Tigre and Carmem Añon Brasolin
On March 30, 2022, the Brazilian Supreme Court, the most important judicial body in the country, will hear seven cases, and all of them are environmental cases. This is an atypical situation in the Brazilian context: having a full day focused on environmental cases has never been done before, and emphasizes the deliberate effort of the Supreme Court to ensure an environmental agenda within the country. From a political point of view, this can be contrasted with recent movements of the Federal Government under President Jair Bolsonaro and the Legislative Houses, which continue to weaken Brazilian environmental policy and climate governance through actions that undermine mining norms, environmental licensing rules, and land tenure regularization, hinder the demarcation of indigenous lands, and foster the use of pesticides.
Two climate litigation cases are included on the docket on March 30th: PSB et al. v. Brazil (on deforestation and human rights) (ADPF 760) and PSB et al. v. Brazill (on Amazon Fund) (ADO 59). The cases will be the first climate litigation cases to receive a judgment by the Supreme Court. ADPF 760 calls for the implementation of the Action Plan for Prevention and Control of Deforestation in the Amazon (PPCDAm), an essential policy to meet the deforestation target established in international climate agreements and Brazil’s Nationally Determined Contribution (NDC). The PPCDAm represents a package of measures and financial directives by the Federal Government to combat deforestation and degradation in the Amazon. The plan is divided into three fronts: (i) land and territorial planning, (ii) environmental monitoring and control, and (iii) development of sustainable production activities. The case also highlights the Federal Government’s omissions in public management, including the non-execution of policies for the preservation of the Legal Amazon and the protection of the fundamental rights of native peoples.
ADO 59, on the other hand, challenges the government’s failure to properly manage the Amazon Fund and requests the reactivation of pending investments to combat and monitor deforestation in the Amazon Forest. The Amazon Fund is a Brazilian climate and environmental financing mechanism that aims to reduce deforestation and promote the sustainable use of the Amazon biome. In 2020, the Supreme Court held a preliminary public hearing for the parties to present facts on deforestation in the Amazon and the results achieved by the PPCDAm between 2004 and 2020.
The historic and unprecedented environmental docket scheduled for March 30 occurs days after the Ato pela Terra (Act for the Earth), a movement coordinated by civil society organizations, artists, and environmental activists in an attempt to prevent environmental and climate deregulation by the Federal Senate and House of Representatives. One of the outputs of the movement included a letter delivered to the minister of the Federal Supreme Court, Cármen Lúcia, requesting the placement of ADPF 760 and ADO 59 on the court’s judgment agenda.
In addition to ADO 59 and ADPF 760, five other environmental cases were added to the Supreme Court’s docket: (i) ADPF 730 challenges the withdrawal of Ibama’s (Brazil’s federal environmental agency) autonomy and the use of the Armed Forces in actions against environmental crimes; (ii) ADPF 651 challenges the withdrawal of civil society participation in the deliberative council of the National Environmental Fund (FNMA); (iii) ADO 54 alleges lack of action by the Public Power in combating deforestation; (iv) ADI 6148 questions a resolution of the National Environmental Council that regulates acceptable air quality standards, and (v) ADI 6808 challenges a law that provides for the automatic granting of operating environmental permits. These five cases deal with environmental issues that indirectly have climate implications, while ADPF 760 and ADO 59 directly raise climate claims.
The Supreme Court’s dedicated environmental docket is especially significant when analyzed in the context of Brazil’s recent undercutting of climate and environmental policies. Additionally, the decisions in ADPF 760 and ADO 59 will represent the first two judgments in climate litigation cases in Brazil at the Supreme Court. These may serve to strengthen the development of climate litigation in Brazil and represent a landmark moment for Brazil in a global movement on climate litigation. The seven cases are expected to be decided on the same day. However, it is possible that one of the justices requests an individual examination of a case(s), which could delay the judgment of that particular case (but not affect the other cases).
The hearings of the seven lawsuits by the Supreme Court on March 30, 2022, will take place in the plenary session starting at 2 pm (Brasília time – BR) and may be watched live on the Supreme Court’s YouTube channel (in Portuguese).
* This blog post is part of the Sabin Center’s Peer Review Network of Global Climate Litigation and was edited by Maria Antonia Tigre. Mr. Mantelli and Ms. Añon Brasolin are the rapporteurs for Brazil.