—Luís Roberto Barroso, Justice at the Brazilian Supreme Court; Professor of Law at the Rio de Janeiro State University – UERJ and University Center of Brasília – CEUB; L.L.M., Yale Law School. S.J.D., Rio de Janeiro State University – UERJ; Post-doctoral studies as Visiting Scholar at Harvard Law School; Senior Fellow at Harvard Kennedy School (Carr Center for Human Rights); and Patrícia Perrone Campos Mello, Clerk at the Brazilian Supreme Court; Professor of Law at the University Center of Brasília – CEUB; L.L.M. and S.J.D., Rio de Janeiro State University; Post-doctoral studies as Visiting Scholar at the Max Planck Institute of Comparative Public Law and International Law and Harvard Kennedy School (Ash Center for Democratic Governance and Innovation)
Environmental protection and climate change have become one of the defining issues of our time. The means of production and consumption of modern society have excessively increased greenhouse gas emissions (GHGs), consequently leading to greater heat retention, thereby causing measurable levels of global warming, which threatens to endanger the survival of mankind on Earth.[1] The solution will necessarily require a collaborative effort by all countries and state agents to incorporate sustainable development policies and reduce the emission of GHGs.[2] In Brazil’s case, deforestation and changes in land use change are the primary conducts responsible for the emission of GHGs. The country hosts nearly 62% of the Amazon Forest, which is home to enormous biodiversity, and is therefore key for climate preservation.[3]
Upon ratifying and applying the Paris Agreement domestically, Brazil committed to reducing GHG emissions by 37% compared to 2005 levels by 2025, and by 43% by 2030, among other obligations. In fact, between 2004 and 2012, the country greatly improved public policies to protect the environment, and experienced considerable success in reducing deforestation.[4] In 2009, the Brazilian government created the National Climate Change Fund (“Climate Fund”) as the main instrument aimed at financing the fight against climate change (Law12114/2009). However, since 2013, annual deforestation rates have steadily risen once again. Moreover, the Federal Government froze the Climate Fund’s operations in 2019. Meanwhile, deforestation increased by 34% in 2019, as compared to the previous year, a trend that continued in 2020. By 2021, the Brazilian deforestation rate was the highest it had been in 15 years, representing an almost 185% increase compared to 2012.[5] Estimated rates for 2022 are equally bad.[6]
In this scenario, a claim (ADPF 708) was presented before the Brazilian Supreme Court (“STF,” or “Court”), arguing that the federal government’s actions violated the constitutional right of present and future generations to a healthy environment. The claimants requested an order from the STF determining (i) the resumption of the Climate Fund’s operations; (ii) the reallocation of the government’s financial resources into the Climate Fund; and (iii) that the federal government be prohibited from further violations or from withholding the Climate Fund’s duly allocated financial resources.[7]
The case led to the following question being presented to the Court: does the matter of the Climate Fund’s operation constitute a constitutional issue subject to the Court’s jurisdiction, or is it a matter of public policy that is exclusively up to elected representative bodies to decide, due to the separation of powers principle?
The STF rejected the political question argument, affirming that the case presented constitutional, supralegal, and legal issues related to environment protection. From a constitutional perspective, it concluded that article 225 of the Constitution of 1988 (“Brazilian Constitution”) expressly established the right to an ecologically balanced environment, imposing on the federal government the duty – not the choice – to preserve and restore the environment for present and future generations. According to the Court, environmental protection is not subject to the political judgment of convenience of the Executive Branch. Rather, it is an obligation to which the federal government is bound, and it is up to the Court to guard the Constitution.
From a supralegal perspective, the STF affirmed – for the first time – that environmental treaties fall under the category of international human rights treaties, since a healthy environment is a condition for the exercise of such rights. Citing the United Nation’s representative speech presented during the public hearing held by the Court, the STF observed that “[t]here are no human rights on a dead or sick planet.” The idea is in accordance with the existence of a “human right to a safe, clean, healthy and sustainable environment,” as recently affirmed by the United Nation,[8] and is also consistent with two landmark decisions of the Interamerican Court of Human Rights.[9] Therefore, environmental treaties entered into by the country are above the ordinary laws, just like human rights treaties.
Finally, from a legal perspective, the Court observed that the Climate Fund was created by Law 12114/2009, through which Congress itself imposed the allocation of financial resources to reduce GHGs emissions. Thus, the Court concluded that there was no legally valid option to simply neglect the fight against climate change, nor was there a legal basis for arguing that such decision violated the separation of powers.
The STF also determined that the non-allocation of resources to the Climate Fund was a deliberate decision by the Executive Branch to hold its operations hostage, until the government could alter the composition of its Management Committee, in order to control the decisions regarding the use of such resources. The measure was part of a broader pattern of conduct adopted by the high echelon of the Executive that systemically suppressed the collegiate bodies of the Public Administration or controlled its composition, thereby impeding civic engagement.
Similar measures had already been repeatedly declared unconstitutional by the Court in decisions concerning the National Environment Council – CONAMA (ADPF 623), the National Council for Children and Adolescents – CONANDA (ADPF 622), the Deliberative Council of the National Environment Fund – FMN (ADPF 651) as well as other collective bodies (ADI 6121). It was pointed out that this kind of governmental behavior violated the right of citizens and civil society to participate in matters of relevant public interest, and undermined transparency and accountability, thereby constituting democratic erosion.
The Court’s final decision, issued on July 4, 2022, recognized that: a) environmental protection and the fight against climate change do not constitute political issues, but rather fall under the constitutional, supra-legal and legal duty of the federal government and, as such, b) the government cannot abstain from the operationalization of the Climate Fund, nor c) can it withhold the financial resources duly allocated to them.
The decision’s ratio decidendi stated that: “The Executive Branch has the constitutional duty to ensure the Climate Fund remain operational, and to annually allocate its resources for the purpose of mitigating climate change. The withholding of such resources is prohibited due to the government’s constitutional duty to protect the environment (CF, article 225), to affirm the fundamental right to a healthy environment, and to uphold its international commitments (CF, article 5, paragraph 2), as well as the constitutional principle of separation of powers.” It is a leading case regarding the status of environmental treaties and is part of a line of STF decisions seeking to protect democracy and the environment.
Suggested Citation: Luís Roberto Barroso and Patrícia Perrone Campos Mello, Facing climate change in the Brazilian Supreme Court: The right to a healthy environment as a human right, Int’l J. Const. L. Blog, Dec. 5, 2022, at: http://www.iconnectblog.com/2022/12/facing-climate-change-in-the-brazilian-supreme-court-the-right-to-a-healthy-environment-as-a-human-right.
[1] Scientific consensus: Earth’s climate is warming, NASA Global Climate Change, https://climate.nasa.gov/scientific-consensus.
[2] Sustainable development has been defined as the development that satisfies the needs of the present, without compromising future generations’ ability to attend to their own needs. World Commission on Environment and Development, U.N., Our common future (1987), https://sustainabledevelopment.un.org/ content/documents/5987our-common-future.pdf.
[3] Luís Roberto Barroso & Patrícia Perrone Campos Mello. In defense of the Amazon Forest: The role of law and courts. Harvard International Law Journal, v. 62, p. 1, 2021; How to save the Amazon: the reasons why a living forest is worth more than a cut-down one. Harvard Kennedy School, Carr Center Discussion Paper Series, 2021-011; Carlos Nobre et al., Land-use and climate risks in the Amazon and the need of a novel sustainable development paradigm, 113 PNA 10759 (2016). João Moreira Salles & Bernardo Esteves, O mundo sem a Amazônia, Piauí magazine (Oct. 17, 2019). Antônio Donato Nobre, O futuro climático da Amazônia: Relatório de avaliação científica 18 (ARA & CCST-INPE & INPA eds., 1st ed. 2014).
[4] Beto Veríssimo, Let’s cut Amazon deforestation to zero. Here’s how, Americas Quarterly (Nov. 9, 2015), https://www.americasquarterly. org/fulltextarticle/lets-cut-amazon-deforestation-to-zero-heres-how/.
[5] Instituto Nacional de Pesquisas Espaciais – INPE [National Institute for Space Reasearch], Programa de Cálculo do Desflorestamento da Amazônia – PRODES [Amazon Deforestation Calculation Program], http://terrabrasilis.dpi.inpe.br/app/dashboard/deforestation/biomes/legal_amazon/rates.
[6] The Amazon in numbers, IMAZON – Instituto do Homem e Meio Ambiente da Amazônia [Amazon Institute of People and the Environment], https://imazon.org.br/imprensa/a-amazonia-em-numeros/.
[7] Through this direct claim of constitutional non-compliance, the Brazilian Supreme Court was urged to exercise its constitutional jurisdiction. ADPF 708, Justice Rapporteur Luís Roberto Barroso, July 4 2022.
[8] Human Rights Council, U.N., A/HRC/48/L.23/Rev.1, October 5 2021; General Assembly, U.N. July 26 2022.
[9] Interamerican Court of Human Rights, OC-23/17, requested by the Republic of Colombia, November 15 2017; and Lhaka Honhat (nuestra tierra) Vs. Argentina. Fondo, reparaciones y costas. February 6 2020.
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