Category: South America

By Guilherme Pratti

[Guilherme Pratti is a PhD student in Law at Sant’Anna School of Advanced Studies, Italy, and a member of its Center for Inter-legality Research. His research project deals with the legal rationality of climate change. Twitter: @iugittarp]

Introduction

The current Brazilian Federal Government has been dismantling the structure for the protection of the environment that has been put together in the past twenty years, by freezing national funds, firing the personnel responsible for the surveillance of protected forest areas and by speaking in favor of (and therefore incentivizing) the reduction of indigenous land and protected areas. In this context, different lawsuits have been filed before the Federal Supreme Court, aiming at i) impeding further dismantling of national structures; ii) restoring federal efforts to preserve the environment and iii) recognizing the conditioning of Brazil’s environmental public policies to its commitments on the matter at the global level.

I have so far identified eight major lawsuits (by the end of the post I offer a charter with all cases), all filed by a group of center-left and left wing political parties before the Federal Supreme Court, having as its object the actions and omissions of the Federal Government regarding its duty to protect the environment, mitigate climate change and preserve national structures responsive for environmental protection in general. 

Two of these lawsuits are, for theoretical reasons, the ones that interest us the most from the perspective of international law. They are the ADPF nº 708, filed on June 30^th 2020 and the ADPF nº 760, filed on November 12^th 2020. On a side note, it is important to mention that two other noteworthy cases have been filed before the federal courts of the States of Amazonas and Paraná (North and South regions respectively), which means that, symbolically speaking, there are climate related lawsuits pending in three out of five national regions so far.

The intertwining of spheres

Back to the Federal Supreme Court cases: ADPF translates, literally, to “arguing for the transgression of a fundamental precept and it is the procedural instrument to be invoked, when in absence of a specific type of action, to avoid and/or repair the violation of fundamental rights provisions of the Brazilian Constitution (art. 102, §1º; Law nº 9.882/99). Both ADPFs seek to repair the damages already done and to avoid further damages by the Federal Government, whom did not abide by the existing normative framework on matters of environmental protection from deforestation and mitigation of the effects of climate change.

The ADPF nº 708, seeks to declare as unconstitutional the Government’s omission to release the national “Climate Fund”, which has so far strangled activities aimed at mitigating the harms of climate change. The Federal Government is withholding said funds and therefore all activities dependent on its budget have been either stopped or diminished to a minimum due to lack of money. This ADPF is a joint action of the Brazilian Socialist Party (PSB), Socialism and Liberty Party (PSOL), Worker’s Party (PT) and Sustainable Network Party (REDE).

The ADPF nº 760, in turn, seeks a writ to command the Government to fulfill its duty to apply the “Action Plan for Prevention and Controlling of Amazon Deforestation” (PPCDAm), for it has not been employed in the past two years, thereby blocking all national measures aimed at preventing deforestation of the Amazon forest and thus contributing to the considerable rise of the forest’s destruction. The filing of said ADPF was signed by the four signatories of APDF 708 plus the Green Party (PV) and the Communist Party of Brazil (PCdoB).

Both lawsuits go beyond the invoking of the relevant national normative framework and argue, in a nutshell, that when it comes to deforestation prevention and climate change mitigation, Brazil has a commitment not only to itself, under Article 225 of the Constitution, but also with (and to) the international sphere. In order to do so, said ADPFs invoke i) the Paris Agreement; ii) the United Nations’ Sustainable Development Goals; iii) the “Rio Declaration on Environment and Development” of 1992; iv) the UN’s Framework Convention on Climate Change and the UN’s Intergovernmental Panel on Climate Change and; v) the UN’s Convention on the Rights of the Child. 

These instruments base the political parties’ arguments that the current Federal Government’s actions and omissions are not only blatantly harmful to the environment immediately situated on the Brazilian territory but also deleterious beyond national borders for they accelerate climate change. As a consequence, it is argued, the mentioned actions and omissions are not only precluded by domestic law but also by the commitments Brazil agreed upon in the international sphere. That is, the Federal Government’s (in)actions violate both national and international normative frameworks. This brings up the composite character of the normativity of the cases at hand, shedding light at the intertwinement between legal spheres.

The conditioning of domestic legality

Said “composite character” (Klabbers & Palombella, 2019, p. 2) images the entanglement of the national and international legal spheres, which, in the present cases, is being argued by the plaintiffs through, on the one hand, the weaving of the preservation of the forest and the mitigating of climate change as sine qua non conditions to guarantee the fundamental rights (for example, of the next generation of children, indigenous people and the ecologically balanced environment) under the Brazilian Constitution, and on the other, the fulfilment of the country’s international commitments and the conditioning that these – i.e. the commitments – play within the domestic sphere. 

That is, the conditioning of the domestic legality (the normative production and interpretation and the public policies pursued) by the extra-State legality, for the latter serves in various ways as a parameter for the establishing (and concretization) of the former. A way to understand the relationship between the legal orders at stake, all the while fully considering the above mentioned composite character of the law (without disregard for one of the levels of legality at stake), can be pursued through the “inter-legality perspective”, which considers “the overlapping among regimes and orders as a consequence of interconnectedness” (Palombella, 2019, p. 368). 

Said perspective is the effort to understand the evermore complex character of the law in the twenty-first century, characterized by “the unavoidable interconnectedness of legalities” (Palombella, 2019, p. 366). And since the interconnectedness at stake is not only normative but also factual, for international environmental laws and agreements state not only legal rules but also scientific facts on the current health state of the Earth, the inter-legality approach can play a decisive role in the ADPFs at issue. 

Taking the perspective of the ADPFs at hand, one can note that they seek the preservation and implementation of the already existing domestic framework regarding the protection of the amazon forest and of the Climate Fund. And to do so, as above mentioned, they base their arguments not only on the coherence of said framework with the Constitution but also on its consistency to the legality stemming from the international sphere (for instance, the Paris Agreement and the UN’s Framework Convention on Climate Change). This integration of the normativity of one sphere onto another (Taekema, 2019, pp. 74-75), through inter-legality’s lenses, is useful to the adjudication of the cases at stake for it purports for a much needed synergy between differently-sourced norms – what has been defined by Hogic and Ibrahim as “positive inter-legality” (2021, p. 17 passim).

This being so because through said lenses, the solution for ADPFs 708 and 760 can “account for the plurality of legal normativities actually interwoven in the case at hand” (Klabbers & Palombella, 2019, p. 16), thus putting forward a robust reasoning capable of cherishing domestic law while making treasure of its relation to the international commitments Brazil agreed upon. And vice-versa. In a nutshell: the inter-legality perspective allows one to “shift toward the construction of law from the angle of the case” (Klabbers & Palombella, 2019, p. 2), all the while fully considering the entanglement of norms. 

Since both the national and international frameworks at stake clearly point at the same direction (that is, the preserving of the amazon forest and the evermore present need to mitigate climate change’s effects) and already purport for synergy between legal spheres, the inter-legality approach can be fruitful to put forward a strong precedent that states not only the intertwinement of said spheres but their accordance when it comes to environmental protection. (Recently on this blog Anmol Gulecha argued somewhat on the same direction I am now, though from a different theoretical standpoint)

A tipping point in the making?

Back to the ADPFs. So far, there has not been any definitive ruling in any of the Federal Supreme Court cases. Only minor procedural decisions, preliminary injunctions and the conduction of public hearings (on ADPFs nº 708) were released. On the latter, when determining the realization of the public hearing, Justice Barroso highlighted the importance of the case at hand by mentioning two rulings of the Inter-American Court of Human Rights (Advisory Opinion OC-23/17 and Indigenous Communities of the Lhaka Honhat Association v. Argentina) and by somewhat reckoning the need to take into account international environmental law, which may indicate an openness of the Brazilian Supreme Court to further recognize the overlapping spheres in play.  

It is important to take into account that the cases brought before the Federal Supreme Court will be the ones to set the tone for the future environmental and climate change lawsuits in the decade that has just begun. Depending on their outcomes and on the legal reasoning they put forward, the two mentioned cases may become a tipping point for the interpreting of domestic environmental provisions, for the enforcement of international environmental law in Brazil and for shedding light on their relation to the fundamental rights of the Constitution. In any case the much awaited rulings will represent a firm stand on the country’s (in)actions regarding the protection of the amazon forest and climate-change-related efforts. If the ADPFs’ ruling do not rise to the occasion, the tipping point we might be seeing in the near future will be the amazon forest’s point of no return.

Overview of Lawsuits

LAWSUIT	DATE	AT ISSUE
ADPF 592	14/06/2019	The annulment of the procedures that have practically extinguished civil penalties and administrative fines for the deforestation of protected areas, created through presidential decree (nº 9.760/19).
ADO 54	23/08/2019	The declaration of an unconstitutional omission (for inactivity) on the part of the President and the Minister of the Environment regarding the amazon forest’s protection, with the consequent injunction to obligate them to act within the existing legal framework.
ADPF 623	16/09/2019	Restoring the public and civil society’s participation on the National Environmental Council (CONAMA), through the declaration of unconstitutionality of the presidential decree (nº 9.806/19) that excluded them from it.
ADO 59	05/06/2020	The declaration of an unconstitutional omission by the Federal Government for not releasing the “Amazon Fund” budget, since 2019 (therefore impeding activities in benefit of the forest and the environment), with the consequent release of said funds.
ADPF 708	30/06/2020	The declaration of an unconstitutional omission by the Federal Government for not releasing the “Climate Fund” budget, since 2019 (therefore impeding all activities to mitigate the effects of climate change), with the consequent release of said funds, so the country can meet its commitments on the legalized global space regarding climate change.
ADPF 747	30/09/2020	The declaration of unconstitutionality of the resolution nº 500/20 of the National Environmental Council (CONAMA), which has greatly dropped environmental protection standards on “permanently protected areas” throughout the country.
ADPF 755	22/10/2020	The restoring of the environmental organs’ sanctioning powers, on matters of environmental crimes and administrative rules’ violations, which have been paralyzed by presidential decree (nº 9.760/19).
ADPF 760	12/11/2020	The application of the PPCDAm, in order to achieve the national goals of deforestation prevention planned for 2021 and the fulfilment of the climate goals assumed in the international sphere.