By Caio Borges
The Netherlands, Colombia, England, Norway, Austria, South Korea, France, Germany, Canada and the United States. These are some of the countries whose constitutional courts have already made a statement, or are in the process of taking a position, on the legal duties of the state entities, before the constitutionally guaranteed fundamental rights, in the context of climate change. Brazil has been a part of this expanding list since the last World Environment Day (June 5).
The Federal Supreme Court (STF) has received two actions of unconstitutionality by omission ( ADO 59 and ADO 60 , with the latter converted to ADPF 708 ), which was filed by political parties (PT, PSOL, PDT and Rede) against the Government. Both actions have an immediate objective of obtaining a declaration of unconstitutional omission by the Government and, as obligations to do something, the resumption of the operations and the reactivation of the institutional governance of the Amazon Fund and of the National Fund on Climate Change (“Climate Fund”). These are two essential financial instruments of the national environmental and climate policy.
It is with significant expectation that the rest of the world will monitor the developments of these two actions. In the international debates on climate litigation – understood as the strategy of submitting to domestic courts and international mechanisms, directly or indirectly, questions of fact and of law about climate change, its origins and its effects – the perception that Brazil is mature enough to produce a paradigmatic judicial decision on climate change has become increasingly strong. 
This expectation thrives for several reasons. The main one is the growing perception, including within the international financial markets , that there is a significant separation between the ambition demonstrated by Brazil in its international targets to reduce greenhouse gas (GHG) emissions and the critical state of the Brazilian environmental and climate policy.
In the most inspiring examples to date of constitutional court judgments on the subject of climate change, three factors have been present, to varying degrees, to grant decisions with a greater technical and argumentative weight and greater effectiveness in their implementation: the legal factor, the scientific factor and the socio-political factor.
The legal factor
From a legal point of view, the most substantial decisions of constitutional courts regarding climate change have been those that have managed to successfully navigate between the stormy seas of the principles and legal scholarship that legitimize, but also delimit, the area of constitutional jurisdiction in contemporary democracies, such as the separation of branches and the legal enforceability of fundamental rights.
In the case, Urgenda v. The Netherlands , the district court in The Hague, in a decision subsequently ratified by the Dutch Supreme Court, dismissed the argument raised by the Dutch State of undue interference by the judiciary in the sphere of jurisdictions of the executive and legislative branches. For this purpose, the two Dutch courts initially sought, directly and objectively, to oppose the idea that, when making a statement on issues with political repercussions, the judiciary would be automatically invading the area of political discretion of the legislative and administrative bodies. Arguing the non-absolute character of the separation of branches, the Dutch justice understood that, in the consultation between the branches, it is up to the courts to settle disputes. This is an obligation that cannot be waived in the face of a specific demand (prohibition of non liquet).
A case that is closer to what will be judged by the STF dealt with governmental omission in the implementation of public policies to combat deforestation. The constitutional court of Colombia ( Future Generations v. Ministry of Transport and others ), citing its own precedents, stated that the right to a healthy environment is “enforceable through the courts.” The connection was recognized between the omission of the defendant public bodies to protect the Amazon forest from “uncontrolled degradation” and the infringement to the rights of a dignified life, health, water and food, both for the plaintiffs and for Colombians in general.
The legal scholarship of the separation of branches will certainly be invoked by the Government in its defense strategy, and will have to be confronted by the STF. Although the actions have, at first sight, a well-defined legal object, the background is much broader and extrapolates the institutional governance of the two funds to deal with the governance of the environmental and climate policy of Brazil as a whole.
The understanding to be adopted by the STF will guide a series of other actions underway in the country that deal with, from different angles, the difficulties faced by Brazilian environmental policy. Among them, we highlight the action proposed in April this year by the Federal Prosecution Office (MPF) , through the Amazon Task Force, before the Federal Court of Amazonas, which intends to implement command and control actions for the containment of environmental offenders. In the same vein as the two constitutional actions, the legal thesis of the administrative omission is supported by robust data and statistics on the weakening of the institutional governance and the administrative structures of the environmental policy, and their specific effects on the environment and the traditional populations that live in the Amazon region. Examples of data cited are the considerable increase in the rates of deforestation (over 30% between 2018 and 2019) and the drastic fall in the number of inspection operations and the issue of notices of violation for environmental wrongdoing. In the first instance, the action had a preliminary decision that was favorable to the MPF. However, there was stay of writ of mandamus by the presidency of the Regional Federal Appellate Court of the 1st Region, appealed by the Office of the Regional Federal Prosecutor/DF. In the stay, the separation of the branches appears as decision-making grounds.
The scientific factor
In the Colombian and Dutch cases, the scientific factor played a fundamental role in the ratio decidendi. The cross-fertilization between the legal and the scientific rationale has been consolidated as one of the fundamental characteristics of contemporary climate litigation, and is directly related to the greater availability of scientific inputs with a high evidentiary value on the origins and impacts of climate change.
For each new review report of the Intergovernmental Panel on Climate Change (IPCC) , advances are made in the sophistication of climate models and in the degree of reliability and certainty about the projections with respect to the variation of climate patterns and their effects on natural, economic and human systems. In addition, studies produced by independent researchers and centers have also been used in the processes. For example, the report on “Carbon Majors,” which is a term that refers to the few dozen companies that account for over two-thirds of historic GHG emissions, has encouraged numerous actions in jurisdictions such as the USA (several, such as San Francisco v. BP and others ) and Germany ( Lliuya v. RWE AGe ), which deal with obligations such as bearing the costs of adaptation and reduction measures of coastal vulnerability and traditional communities.
Supported by extensive documentation about international negotiations, which in turn were based on climate science, the Dutch Supreme Court rejected the “drop in the ocean” thesis, argued by the Dutch State. This thesis maintains that judicial decisions ordering that the sources responsible for GHG emissions adopt measures of mitigation are legally unfit to solve the global problem of climate change, because individually considered sources respond for only a reduced percentage of the total volume of GHG emissions.
Making use of the climate science and the interpretative and integrative techniques of the European Court of Human Rights on the relative legal value instruments of hard and soft law, the Dutch court established the innovative concept of a “fair share” of the emissions. According to this concept, a country like the Netherlands, even though it contributes relatively little in absolute terms, may be legally compelled to readjust its individual target to reduce emissions, if this is out of step with the best available scientific knowledge and with international climate agreements.
The socio-political factor
Finally, the sociopolitical factor is important both to cover the decision-making process of the constitutional courts of the highest standing, and to assist in overcoming one of the greatest challenges of the strategic litigation in human rights, environment and climate, which is precisely the practical implementation of the decision.
In Colombia, the administrative bodies have not satisfactorily prepared the plans of control of the deforestation and the inter-generational pact of protection of the Amazon region for the reduction of the deforestation to zero, in accordance with the 2018 judicial decision of the Supreme Court of Justice. This omission has led the plaintiffs of the action to appeal once again to the court to complain about the inertia of the actors that are legally linked to the orders of the decision. Conversely, in the Netherlands, only four months after the final judgment by the Dutch Supreme Court, measures were announced to comply with the decision, such as a 75% reduction in the generation capacity of four thermoelectric power plants, the encouragement of sustainable forms of heating for households and the imposition of less polluting and more efficient industrial processes.
As can be seen, the political and institutional context of each country influenced the final result of the climate actions with respect to their capability to generate specific changes of behavior and policies by government. However, in general, the petitioners and the constitutional courts have sought to maximize the chances of real success of the action by methods of calibrating the requests and the decisions. In this way, the aim is to pressurize the political system until reaching the fine line between ambition and pragmatism.
In practical terms, this translates, in the order of the decision, with the focus on the procedural aspects of the administrative action. In the Dutch case, the solution to circumvent the separation of the branches was to allow the parliament and the government to freely choose the construction of the best arrangement of laws and public policies for the satisfaction of the judicial order. Another technique, used in the Colombian case, was to order the preparation and presentation of plans of action, outlining only minimal parameters with respect to their content and form. A third alternative, adopted by a regional court in Pakistan , was the creation of a specific multi-sectoral institutional governance for the compliance with the decision, with representatives from the government, civil society and the judiciary.
In ADPF 708, about the Climate Fund, Justice Luís Roberto Barroso has called public hearings , as a method of increasing the debate to encompass, in addition to the legal issues, the scientific, socio-environmental and economic knowledge, and as a means to produce an “official report” on the subject. Revealing a significantly precise view on the function and scope of these instruments, Justice Barroso understood that “the case involves the need for a broad comprehension of the current state of public policies in environmental matters, about the operation and function of the Climate Fund and with respect to the various actors and activities possibly impacted by these policies.”
The holding of the hearings may favor the formation of areas of convergence between the social actors around points of common interest. The specific case may even assist these approximations. The paralysis of the activities of two important instruments of climate financing affects an entire range of institutions and entities. In fact, the beneficiaries of the Amazon Fund and the Climate Fund include states, municipalities, universities, research centers, NGOs, public companies and agencies from the federal and state administration, such as ministries and foundations. In 2017, the Amazon Fund approved approximately 60% of its funds to governments (federal and state).
Whatever the result on the merits of the action, the public debate conducted by the judiciary will alleviate somewhat the damage caused by the current reduction of participative political deliberation. As well noted by the Pakistani regional court , a framework for the implementation of a climate policy is not an end in itself, but “a catalyst for the insertion of climatic considerations in the decision-making process, which creates the necessary conditions for the integrated processes of development and that are compatible with the climate.”
The international curiosity aroused by the two new climate cases before the STF reflects the current shared understanding about the seriousness of the climate crisis. With an increasingly reduced “carbon budget,” according to the reports from the United Nations Environment Program (UNEP) , the world simply cannot afford to have the sixth largest GHG emitter indifferent to a problem that, by its own definition and nature, can only be tackled through global collective action.
Caio Borges – coordinator of the Law and Climate Program of the Institute for Climate and Society (iCS). He has a master’s degree in Law and Development at the Getúlio Vargas Foundation and a doctoral degree in Law at the University of São Paulo.
— Borges, Caio; Leal, Guilherme; Setzer, Joana. Climate Change Litigation in Brazil. In Alogna, Ivano; Bakker, Christine; Gauci, Jean-Pierre. Climate Change Litigation: Global Perspectives. (In press).
This text was originally published on July 7, on the JOTA website.