Political party vs. Brazilian State over the federation's omissions in preventing and controlling deforestation in the Amazon

Location

DF Brazil

Status
In the implementation phase
Case file number
ADPF 760 y ADO 54
Start date
August, 2019
Date of judgment or latest existing decision
In April 2024, the applications filed in ADPF 760 and ADO 54 were partially admitted. The Court acknowledged the existence of structural flaws in the Amazon protection policy.
Summary

This Direct Action of Unconstitutionality for Omission (ADO) was filed by the Rede Sustentabilidade (Rede) party against President Jair Messias Bolsonaro and Environment Minister Ricardo de Aquino Salles for failing to combat biomass loss in the Amazon. The party argued that the defendants failed to comply with Articles 23 and 225 of the Federal Constitution, as evidenced by the increasing deforestation in the Amazon since 2019. Furthermore, it criticized the Executive branch's attempt to discredit data from the National Institute for Space Research (INPE) and the dismissal of its head of research, as well as the increased deforestation documented by the Institute of Man and the Environment of the Amazon (Imazon), which warns of a possible irreversible "tipping point" with serious climate impacts. Also noted were the cuts in transfers to the Amazon Fund and the non-compliance with objective 15.2 of the 2030 Agenda and the national commitments to reduce deforestation provided for in Decrees 7.390/2010 and 9.578/2018, integrated into the National Climate Change Plan.

Among the requests in this lawsuit are: the granting of a precautionary measure so that the President and the Minister would take concrete actions against deforestation, the delivery of information on measures adopted since 2011, the confirmation of the precautionary measure, the declaration of unconstitutional omission and, subsidiarily, its progressive recognition; in addition, that the action be received as an Action of Noncompliance with a Fundamental Precept (ADPF) in case of inadmissibility of the ADO.

Due to the similarity of the subject matter of ADPF 760 and ADO 54, the Special Rapporteur, Minister Carmen Lúcia, decided to judge them jointly. In her opinion, she recognized that the right to a balanced environment is fundamental, emphasized the principle of prohibiting environmental regression, and described a process of “normative termination” through the silent dismantling of state structures. She highlighted the transnational and transboundary nature of climate change and the three pillars of environmental policy: adherence to science, international cooperation, and joint action by the State and society. She recognized the unconstitutionality of deforestation and ordered the reactivation of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) by the Union and competent federal bodies.

In April 2024, the Court partially upheld the requests, acknowledging structural shortcomings in the protection of the Legal Amazon. It determined that the Government must adopt effective measures such as strengthening institutions like IBAMA, ICMBio, and FUNAI; providing transparent information on actions and results; and registering data in the Judiciary's Observatory of Environment and Climate Change. The rulings emphasized the relationship between deforestation and climate change, climate and intergenerational justice, and the importance of the Amazon in guaranteeing fundamental environmental and climate rights. This case belongs to a group of strategic lawsuits known in Brazil as the “green package.”   (“Green Guideline”).  

Climate element

According to the initial claim, the rate of deforestation decreased by 79% between 2004 and 2015. However, it began to rise again from 2015 onwards, a period in which a significant increase was observed compared to previous years, largely due to the changes in the 2012 Forest Code, which granted amnesty to illegal deforesters, and the low priority that the Plan received during the governments of Dilma and Temer.

The Bolsonaro administration acknowledged the increase in deforestation but attempted to discredit the data presented by INPE, an internationally recognized and highly qualified scientific team. In response, the Federal Public Prosecutor's Office (MPF) defended the institution, given its important work. Instead of taking concrete measures to combat deforestation in the Amazon, the administration dismissed the head of research at the Institute and mandated that data must undergo several stages before publication, a move completely contrary to transparency.

One of the dangers of this rampant increase in deforestation is the so-called "tipping point," beyond which it would be impossible to recover the vegetation, which would then transform into savanna. Researchers indicate that this point will be reached if between 20% and 25% of the original forest area is deforested, while currently the loss is around 16% to 17%. This would also have implications for severe climate change in the region.

Claimants
  • Political Party Rede Sustentabilidade (REDE)
Defendants
  • President of the Republic
  • Minister of the Environment
Supporting organizations
Associacao Civil Alternativa Terrazul
Institute of Amazonian Studies (IEA)
Territorial context

The Amazon rainforest is the world's largest tropical rainforest, covering approximately 600 million hectares and forming an equatorial vegetation cover that spans roughly 49% of Brazilian territory. The rainforest contains one-fifth of the world's liquid freshwater, thanks to the Amazon River basin.

The concept of Legal Amazonia was established by the Brazilian government as a way to plan and promote the social and economic development of the states in the Amazon region, which historically share the same economic, political, and social challenges.

Based on structural and situational analyses, its territorial limits have a sociopolitical and not geographical bias, that is, they are not defined by the Amazonian biome —which occupies about 49% of the national territory and also extends through the territory of eight neighboring countries—, but by the development needs identified in the region.

The Legal Amazon is an area of 5,217,423 km², representing 61% of Brazilian territory. In addition to encompassing the entire Brazilian Amazon biome, it also includes 20% of the Cerrado biome and part of the Pantanal wetlands in the state of Mato Grosso. It comprises the entirety of the states of Acre, Amapá, Amazonas, Mato Grosso, Pará, Rondônia, Roraima, and Tocantins, as well as part of the state of Maranhão.

Rules and principles invoked
  • Paris Agreement (Federal Decree 9.073/2017)
  • Articles 5, 225 and 231 of the Constitution of Brazil
  • UNFCCC (Federal Decree 2,652/1998)
  • ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)
  • Environmental Crimes Act (Federal Law 9.605/1998)
  • Law of the National System of Nature Conservation Units - SNUC (Federal Law 9.985/2000)
  • Kyoto Protocol (Federal Decree 5.445/2005)
  • National Environmental Policy - PNMA (Federal Law 6.938/1981)
  • National Climate Change Policy - PNMC (Federal Law 12.187/2009)

Principles invoked

  • Principle of Progressivity and Non-Regression

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Instance
Constitutional
Judicial
Actor type
Political parties
Topic
Acuerdo de París y compromisos climáticos
Forests and deforestation
Fragile ecosystems
Intergenerational justice
Obligations of States
Environmental protection
Defendant type
State
Interim measures
Granted
Grounds for claim
Paris Agreement and climate commitments
National legislation
Regional or international treaties
Implementation status
Por implementar