ADPF 708: Climate Fund and Environmental Policies

By Caio Borges – Coordinator of the Law and Climate Program

A historical lawsuit

This third article on the Brazilian Supreme Court’s (STF) green agenda could not address any other case than the Statement of Non-Compliance with Fundamental Precept (ADPF) 708 on the Climate Fund, which was the subject of a public hearing by the court on September 21st and 22nd.

The suit was filed by four political parties (PT, PSOL, PSB e Rede) against the Federal Union. It asks the government to reactivate the governance framework and resume the planning for the allocation of resources and disbursements from the Climate Fund, established in 2009 by law. It alleges violation to art. 225 of the 1998 Federal Constitution (CF / 88), which protects the right to an ecologically balanced environment, and the principle of cooperative federalism.

In his first manifestation on the merits of the action, the rapporteur, Justice Luís Roberto Barroso, called for a public hearing to obtain an “objective and official report” of the environmental situation in Brazil.

ADPF 708 Public Hearing: the debate’s main points

The public hearing was a landmark in the history of the STF. It was the first time that the country’s highest court addressed the issue of climate change. For two days, 66 experts were heard: scientists, environmentalists, indigenous peoples, businesspeople, environmental economists, researchers, members of parliament, and representatives of both federal and state governments.

Right from the start, Justice Barroso set the tone for the debate. In his initial remarks, he spoke about the challenge posed to humanity by global warming. He recalled a similar lawsuit filed before the Court, ADO 59, about the Amazon Fund (also discussed in this article ), which is being handled by Justice Rosa Weber, indicating that, although they have been treated separately until now, they can be judged together in the future.

The presentations all shared a common ground, which was that the government must ensure the effectiveness of the instruments and governance of environmental and climate policy. Nevertheless, under this umbrella, the messages conveyed by representatives of civil society, businesses, subnational entities and the scientifical community were rich and varied, although complementary to each other.

Several speakers described the government’s failure to respond to the increase in deforestation and fires as an attitude that damages the country’s reputation abroad and has concrete adverse effects on businesses and the economy. Because of the government’s reluctance to admit that there is a serious problem and to take effective measures, Brazil is finding it hard to obtain international financing and to enter into trade agreements. These messages were delivered especially by economists, such as Armínio Fraga (former Central Bank governor), Ricardo Abramovay (USP), Sérgio Margulis (ex-Secretary of Sustainable Development of the Presidency), and by scientist Carlos Nobre (ex-Inpe and professor at IEA-USP).

“In addition to aggravating the global problem, deforestation and other environmental crimes pose an enormous risk to the agribusiness ecosystem and to the energy supply system. The growing emphasis by the best companies in the world on the ESG trio — Environment, Social and Governance — reduces the attractiveness of Brazil as an investment destination”.
(Armínio Fraga, former Central Bank Governor)

Former public officers, such as former Ministry of the Environment Izabella Teixeira, shared some of the history of the creation of the national and international institutional governance on climate change, highlighting Brazil’s fundamental role in building the global architecture of sustainable development. With the reversal of its political orientation, Brazil loses soft power in current international relations.

Coincidentally, the message from science representatives was being delivered simultaneously with President’s Jair Bolsonaro speech at the opening session of the UN General Assembly, in which he denied that the Amazon is experiencing an increase in fires and attributed responsibility to the indigenous peoples of the region.

Exponents of science and climate research, such as Thelma Krug (Vice-President of the IPCC

and ex-Inpe), Ricardo Galvão (ex-Inpe), Tasso Azevedo (SEEG Coordinator and former Director of the Brazilian Forest Service), Beto Veríssimo (Imazon) and Paulo Moutinho (IPAM), briefly described the fundamentals of the scientific and empirical method, and explained why it can be said, with scientific certainty, that human interference with the climate system is taking place and is considered the predominant cause of the average temperature rise observed since the middle of the 20th century. They also presented robust data on the trajectory of Brazilian GHG emissions and on the association between disturbance of the climate system, the biodiversity crisis and the environmental crisis in Brazil.

“The anthropic influence has been identified in changes in temperature close to the Earth’s surface, in the atmosphere and in the oceans, as well as in changes in the cryosphere, the hydrological cycle, and in some extremes. All this evidence combined leads science to state that there is no more room to doubt the existence of climate change and the human contribution to the increase of global warming”.
(Thelma Krug, Vice President of the IPCC)

The Amazon also featured prominently in the debates and was present in all sessions, as expected, considering the interest of Justice Barroso in the topic. It was approached in all its complexity: the pressure it suffers from illegal activities, which are leading the forest to a “tipping point”; the problem of land tenure regularization and the non- designation of public lands, which promotes invasions, deforestation, and a series of crimes and illegalities, with negative effects on protected areas; the importance of public and transparent systems for monitoring deforestation; the impacts deforestation has on Brazilian agribusiness and on local communities; the absence of a coherent public policy of innovation and promotion of technology and entrepreneurship; and the potential for the Amazon to be the mainstay of a new Brazilian economy, based on the creation of chains of production of forest products with high added value, agroforestry systems and the valorization of socio-biodiversity and local knowledge.

Companies like Natura and Itaú Unibanco shared their proposals and commitments for caring for the Amazon. Natura committed to reach zero deforestation by 2030, in addition to keeping its well-known initiatives on benefit-sharing with local communities. The president of Itaú Unibanco, Cândido Bracher, presented an initiative led by the bank alongside two other large private banks, Santander Brasil and Bradesco, which proposes to tackle the crisis in the forest, to improve the due diligence so as to avoid extending credit to companies that practice illegal deforestation, and to support land regularization in the region.

Civil society organizations, such as Greenpeace Brazil, Instituto Socioambiental, Imazon and WWF-Brazil, shared data and statistics on the disruption of governance and environmental and climate protection instruments in Brazil, such as the significant budget cuts of environmental agencies and the failure by the government to disburse even the resources which have been appropriated; the abrupt and significant decrease in inspection operations and embargoes by Ibama; the suspension of sanctioning processes; the deregulation of environmental standards; and the non-allocation of funds.

Transparency International Brazil and Human Rights Watch recalled how environmental destruction and the weakening of watchdog bodies are intrinsically related. Organized crime networks benefit from illegal activities that degrade biomes and also promote violence, attacks on environmental defenders, and corruption.

Members of civil society also highlighted the connection between climate change and human rights, associating art. 225 of the Brazilian Constitution (the right to an ecologically healthy environment) to several other constitutionally protected rights, such as the right to life, food, housing, culture, and work. Conectas Human Rights argued that the right to a healthy environment currently comprises the right to a stable and secure climate system for current and future generations. Professor Ingo Sarlet pointed out that the set of actions and omissions from the government in relation to the environment violates the “core” of constitutional rights, such as those listed on art. 225. Finally, the UN expert on human rights and the environment, David Boyd, recalled the international obligations signed by Brazil and pointed to a situation of unconstitutionality due to the current deforestation.

Joana Setzer, professor at the London School of Economics and a global expert on climate litigation, explained how constitutional courts, when faced with cases dealing with climate change, are instrumentalizing human rights to lift concerns about the separation of powers and to legitimize and justify decisions that forced governments to revise their climate plans or to increase their greenhouse gas reduction targets. The compared cases include lawsuits in Colombia, Ireland, the Netherlands and the USA.

Justice Barroso concluded the hearing by listing the “uncontroversial” points that emerged from the debates. They were:

1. Brazil is among the seven largest GHG emitters responsible for global warming. However, unlike other countries, where emissions are associated with progress, industrialization and consumption (albeit with their well-known externalities), in our case they stem from criminal activities that include deforestation, illegal logging, illegal mining and land grabbing.

2. Deforestation and fires grew significantly in 2019 and 2020 in Brazil.

3. There was a significant reduction in inspection operations and embargoes carried out by Ibama.

4. Until the filing of the lawsuit, the government had neither approved the Plan for the Application of Resources from the Climate Fund nor allocated the resources.

5. Financial sectors and consumers around the world threaten to boycott Brazilian products.

6. Even though we have wrongly deforested 20% of the Amazon in the last 50 years, the region’s GDP is frozen at 8% of the Brazilian GDP. The asset that the forest represents to Brazil is destroyed without corresponding human development to the 25 million people living in the Amazon and without economic growth in the region.

7. There is no incompatibility between a well-managed agribusiness and the Amazon Forest.

8. The Climate Fund plays an important role in achieving international goals, such as GHG reduction goals.

In his closing speech, Justice Barroso delivered a strong message, stating that it is necessary to deal with the facts, and to avoid “creating an imaginary and parallel reality”, an indirect allusion to messages from government representatives that claimed that there is an orchestrated conspiracy against Brazil or against the Brazilian government. He declared that the STF will judge the case according to the facts, the Constitution, international agreements and the legislation.

“Brazil needs an effective low-carbon development agenda. This is the right thing to do for our country, for the citizens and for our children”.
(Min. Barroso)

The ADPF 708 public hearing has made court history. In the current political scenario in Brazil and around the world, it comes as a ray of light which cuts across the intellectual obscurantism that haunts us.

What one can hope from these two days is that the ruling will also go down in the history of judicial decisions worldwide that seek to address states’ inaction in providing answers strong enough to deal with the greatest challenge ever faced by humanity, which is climate change, and that it will serve as a paradigm for future climate litigation cases in Brazil.