In September, Brazil's Superior Court of Justice (TSJ) will issue a ruling in one of the most significant cases in recent years for the future of energy policy and environmental and climate protection in the country. Jurisdictional Assumption Incident No. 21 (IAC 21) addresses the possibility of exploiting unconventional oil and gas through hydraulic fracturing, or fracking . The TSJ's decision could pave the way for or prevent the expansion of this technique in various Brazilian sedimentary basins, some of which are associated with regionally important ecosystems and water reserves, such as the Guarani Aquifer.
The trial is also part of a broader debate about the role of climate litigation in the face of expanding fossil fuel frontiers in Latin America. At a time when the transition away from fossil fuels is central to the international climate agenda, decisions about new forms of oil and gas extraction could deepen dependence on fossil fuel-based infrastructure for decades and hinder a just energy transition.
The debate surrounding fracking in Brazil is also taking place within a regional context of growing questioning about the risks and viability of this technique. In Mexico, a committee of experts appointed by the government of President Claudia Sheinbaum to evaluate the exploitation of unconventional hydrocarbons recommended, in its initial conclusions, prohibiting fracking in areas considered to be of particular social and environmental sensitivity, as well as continuing studies to analyze the possibility of using the technique in other regions. Another key recommendation was the prohibition of using freshwater for hydraulic fracturing.
In Colombia, fracking remains suspended following resistance from communities and organizations in potentially affected territories. Given the new government's intention to revive this activity, civil society organizations have already turned to the courts to block its progress. The Colombian experience demonstrates that the expansion of fracking is not limited to a technological or regulatory issue: it is an activity that can generate a high level of territorial conflict and faces social resistance precisely in the places that would suffer its impacts.
Why is IAC 21 important?
The case originated in the 12th Bidding Round of the National Agency of Petroleum, Natural Gas and Biofuels (ANP), which offered blocks with potential for unconventional gas exploration. This initiative led to the filing of public civil lawsuits in various states, questioning the feasibility of using fracking due to environmental risks and a lack of sufficient information regarding its impacts.
In resolving this legal action, the Supreme Court of Justice (TSJ) must establish the scope of the precautionary principle in light of the uncertainties surrounding fracking and the compatibility of this technique with Brazil's environmental, climate, and human rights obligations. In this debate, the court must consider that the commercial exploitation of unconventional gas involves the proliferation of wells and associated infrastructure, which can generate cumulative impacts on watersheds, ecosystems, territories, and communities.
A technique surrounded by risks and uncertainties
Fracking allows the extraction of oil and gas trapped in low-permeability rock formations. This is done by injecting large volumes of water, sand , and chemicals into the subsoil at high pressure, causing fractures in the rocks that allow the hydrocarbons to flow.
Experience in other countries shows that this technique carries several risks: high water consumption, contamination of water resources, generation of complex effluents and waste, air pollution, induced tremors, methane emissions, and impacts on biodiversity and the health of populations.
In Brazil, the lack of information is particularly concerning. Technical documents prepared by the government itself reveal gaps in knowledge regarding the geological and hydrogeological conditions of areas potentially designated for exploitation and acknowledge the fragility of the existing regulatory framework. This concern is especially relevant in the Paraná River basin, where areas of interest for unconventional hydrocarbons, conservation units, remnants of the Atlantic Forest, and strategic aquifer systems overlap.
That is precisely why the precautionary principle is so important: when there is a possibility of serious or irreversible damage, the lack of scientific certainty should not serve as justification for postponing measures to prevent it.
International experience also calls into question the idea that the risks could be resolved simply with more regulation. Countries like the United States, Argentina, and Mexico have different trajectories, but they reveal recurring difficulties in oversight, emissions control, waste management, transparency, and accountability. In response to the damage and uncertainties, various countries have adoptedmoratoriums or bans on this technique at the national and local levels.
There is also an economic dimension that often goes unnoticed. Evidence shows that unconventional extraction depends on continuous investment, as wells experience a rapid decline in productivity. At the same time, the infrastructure built for fossil fuel extraction tends to create economic incentives to remain operational for many years. This phenomenon, known as energy lock-in , can divert necessary investments from the energy transition and prolong dependence on oil and gas.
Those who defend fracking may also base their argument on the idea of “energy sovereignty,” but this argument deserves critical analysis. The expansion of unconventional hydrocarbon exploitation can exacerbate, rather than reduce, forms of energy and economic dependence. Fracking development requires technology, expertise, infrastructure, and financing, as well as continuous investment due to the rapid decline in well productivity. Therefore, the exploitation of new fossil resources should not be automatically confused with greater energy independence.
Comparative experience shows that prohibiting or limiting fracking does not mean giving up on energy security, but rather allows for the development of alternatives to guarantee it in the present and in the future.
The narrative of gas as a transition fuel reinforces the fossil fuel model and exacerbates the climate crisis
Throughout the region, there is a growing discourse advocating for gas as a transition fuel and increasing its share in the energy mix, supposedly to reduce emissions that exacerbate the climate crisis. This narrative is used to justify expanding the oil and gas extraction frontier, including deep-water drilling and, onshore, the use of extreme techniques like fracking .
The gas that the industry calls “natural” is a fossil gas. In the process, from its production in wells to its use, it causes very high levels of methane to leak into the atmosphere. Methane is a gas with a global warming potential up to 80 times greater than that of CO₂ in the short term. Therefore, measures that promote natural gas as policies to address the climate crisis end up reproducing and exacerbating the causes of the problem.
A decision that affects territories without the direct participation of those who live in them?
The litigation also highlights a significant democratic weakening. The areas potentially affected by unconventional hydrocarbon exploitation are adjacent to or overlap with Indigenous lands and territories occupied by traditional communities. Despite this, the potentially affected peoples and communities lack direct representation in the proceedings that is proportionate to the territorial scope of the decision to be made.
This absence is crucial when considering risks, such as changes in water availability and quality, road and infrastructure construction, heavy vehicle traffic, territorial fragmentation, and environmental alterations that can directly affect lifestyles, food, health, and cultural relationships with the territory.
The International Labour Organization's Convention No. 169 and the parameters developed by the Inter-American Human Rights System reinforce the importance of participation, prior, free, and informed consultation, and consent when state decisions may affect indigenous peoples and traditional communities. The quality of environmental decisions also depends on incorporating the knowledge and perspectives of the people who will bear the risks.
Less environmental protection in Brazil, more climate commitments worldwide
The trial is also taking place at a contradictory time. Domestically, recent changes in Brazilian environmental permitting legislation have expanded the mechanisms for simplifying, accelerating, and fragmenting the procedures applicable to activities with the potential for impact. In a context characterized by cumulative risks and the need for comprehensive assessments of sedimentary basins, this situation makes the analysis of the State's actual capacity to prevent damage even more relevant.
Internationally, the trend is different. The first Global Stocktake of the Paris Agreement , adopted at COP28, urged countries to contribute to the transition away from fossil fuels in energy systems in a just, orderly, and equitable manner, accelerating action this decade. The issue took on particular relevance for Brazil. Following COP30, held in Belém, the Brazilian Presidency took on the task of developing an international roadmap for the transition away from fossil fuels.
The fracking dispute highlights the contradiction between the attempt to reconcile the commitment to finding ways to reduce global dependence on fossil fuels and the opening, within the country itself, of a new frontier for fossil fuel exploitation through fracking . In this way, the case also underscores the role of climate litigation as a tool for challenging decisions that could deepen dependence on fossil fuels and hinder a just energy transition.
A precedent that goes beyond Brazil
The decision by Brazil's Superior Court of Justice will have regional repercussions. Aquifers, ecosystems, and the climate system itself are not governed by borders between states or countries. Authorizing a new fossil fuel frontier means generating effects that extend far beyond the locations where the wells would be drilled.
Given the high risks, knowledge gaps, and a weakened regulatory structure, the trial offers the Brazilian high court the opportunity to affirm that precaution is not an obstacle to development, but a condition for decisions about the energy future not to transfer costs that could have been avoided to ecosystems and future generations.
In September, Brazil's Superior Court of Justice (TSJ) will issue a ruling in one of the most significant cases in recent years for the future of energy policy and environmental and climate protection in the country. Jurisdictional Assumption Incident No. 21 (IAC 21) addresses the possibility of exploiting unconventional oil and gas through hydraulic fracturing, or fracking . The TSJ's decision could pave the way for or prevent the expansion of this technique in various Brazilian sedimentary basins, some of which are associated with regionally important ecosystems and water reserves, such as the Guarani Aquifer.
The trial is also part of a broader debate about the role of climate litigation in the face of expanding fossil fuel frontiers in Latin America. At a time when the transition away from fossil fuels is central to the international climate agenda, decisions about new forms of oil and gas extraction could deepen dependence on fossil fuel-based infrastructure for decades and hinder a just energy transition.
The debate surrounding fracking in Brazil is also taking place within a regional context of growing questioning about the risks and viability of this technique. In Mexico, a committee of experts appointed by the government of President Claudia Sheinbaum to evaluate the exploitation of unconventional hydrocarbons recommended, in its initial conclusions, prohibiting fracking in areas considered to be of particular social and environmental sensitivity, as well as continuing studies to analyze the possibility of using the technique in other regions. Another key recommendation was the prohibition of using freshwater for hydraulic fracturing.
In Colombia, fracking remains suspended following resistance from communities and organizations in potentially affected territories. Given the new government's intention to revive this activity, civil society organizations have already turned to the courts to block its progress. The Colombian experience demonstrates that the expansion of fracking is not limited to a technological or regulatory issue: it is an activity that can generate a high level of territorial conflict and faces social resistance precisely in the places that would suffer its impacts.
Why is IAC 21 important?
The case originated in the 12th Bidding Round of the National Agency of Petroleum, Natural Gas and Biofuels (ANP), which offered blocks with potential for unconventional gas exploration. This initiative led to the filing of public civil lawsuits in various states, questioning the feasibility of using fracking due to environmental risks and a lack of sufficient information regarding its impacts.
In resolving this legal action, the Supreme Court of Justice (TSJ) must establish the scope of the precautionary principle in light of the uncertainties surrounding fracking and the compatibility of this technique with Brazil's environmental, climate, and human rights obligations. In this debate, the court must consider that the commercial exploitation of unconventional gas involves the proliferation of wells and associated infrastructure, which can generate cumulative impacts on watersheds, ecosystems, territories, and communities.
A technique surrounded by risks and uncertainties
Fracking allows the extraction of oil and gas trapped in low-permeability rock formations. This is done by injecting large volumes of water, sand , and chemicals into the subsoil at high pressure, causing fractures in the rocks that allow the hydrocarbons to flow.
Experience in other countries shows that this technique carries several risks: high water consumption, contamination of water resources, generation of complex effluents and waste, air pollution, induced tremors, methane emissions, and impacts on biodiversity and the health of populations.
In Brazil, the lack of information is particularly concerning. Technical documents prepared by the government itself reveal gaps in knowledge regarding the geological and hydrogeological conditions of areas potentially designated for exploitation and acknowledge the fragility of the existing regulatory framework. This concern is especially relevant in the Paraná River basin, where areas of interest for unconventional hydrocarbons, conservation units, remnants of the Atlantic Forest, and strategic aquifer systems overlap.
That is precisely why the precautionary principle is so important: when there is a possibility of serious or irreversible damage, the lack of scientific certainty should not serve as justification for postponing measures to prevent it.
International experience also calls into question the idea that the risks could be resolved simply with more regulation. Countries like the United States, Argentina, and Mexico have different trajectories, but they reveal recurring difficulties in oversight, emissions control, waste management, transparency, and accountability. In response to the damage and uncertainties, various countries have adoptedmoratoriums or bans on this technique at the national and local levels.
There is also an economic dimension that often goes unnoticed. Evidence shows that unconventional extraction depends on continuous investment, as wells experience a rapid decline in productivity. At the same time, the infrastructure built for fossil fuel extraction tends to create economic incentives to remain operational for many years. This phenomenon, known as energy lock-in , can divert necessary investments from the energy transition and prolong dependence on oil and gas.
Those who defend fracking may also base their argument on the idea of “energy sovereignty,” but this argument deserves critical analysis. The expansion of unconventional hydrocarbon exploitation can exacerbate, rather than reduce, forms of energy and economic dependence. Fracking development requires technology, expertise, infrastructure, and financing, as well as continuous investment due to the rapid decline in well productivity. Therefore, the exploitation of new fossil resources should not be automatically confused with greater energy independence.
Comparative experience shows that prohibiting or limiting fracking does not mean giving up on energy security, but rather allows for the development of alternatives to guarantee it in the present and in the future.
The narrative of gas as a transition fuel reinforces the fossil fuel model and exacerbates the climate crisis
Throughout the region, there is a growing discourse advocating for gas as a transition fuel and increasing its share in the energy mix, supposedly to reduce emissions that exacerbate the climate crisis. This narrative is used to justify expanding the oil and gas extraction frontier, including deep-water drilling and, onshore, the use of extreme techniques like fracking .
The gas that the industry calls “natural” is a fossil gas. In the process, from its production in wells to its use, it causes very high levels of methane to leak into the atmosphere. Methane is a gas with a global warming potential up to 80 times greater than that of CO₂ in the short term. Therefore, measures that promote natural gas as policies to address the climate crisis end up reproducing and exacerbating the causes of the problem.
A decision that affects territories without the direct participation of those who live in them?
The litigation also highlights a significant democratic weakening. The areas potentially affected by unconventional hydrocarbon exploitation are adjacent to or overlap with Indigenous lands and territories occupied by traditional communities. Despite this, the potentially affected peoples and communities lack direct representation in the proceedings that is proportionate to the territorial scope of the decision to be made.
This absence is crucial when considering risks, such as changes in water availability and quality, road and infrastructure construction, heavy vehicle traffic, territorial fragmentation, and environmental alterations that can directly affect lifestyles, food, health, and cultural relationships with the territory.
The International Labour Organization's Convention No. 169 and the parameters developed by the Inter-American Human Rights System reinforce the importance of participation, prior, free, and informed consultation, and consent when state decisions may affect indigenous peoples and traditional communities. The quality of environmental decisions also depends on incorporating the knowledge and perspectives of the people who will bear the risks.
Less environmental protection in Brazil, more climate commitments worldwide
The trial is also taking place at a contradictory time. Domestically, recent changes in Brazilian environmental permitting legislation have expanded the mechanisms for simplifying, accelerating, and fragmenting the procedures applicable to activities with the potential for impact. In a context characterized by cumulative risks and the need for comprehensive assessments of sedimentary basins, this situation makes the analysis of the State's actual capacity to prevent damage even more relevant.
Internationally, the trend is different. The first Global Stocktake of the Paris Agreement , adopted at COP28, urged countries to contribute to the transition away from fossil fuels in energy systems in a just, orderly, and equitable manner, accelerating action this decade. The issue took on particular relevance for Brazil. Following COP30, held in Belém, the Brazilian Presidency took on the task of developing an international roadmap for the transition away from fossil fuels.
The fracking dispute highlights the contradiction between the attempt to reconcile the commitment to finding ways to reduce global dependence on fossil fuels and the opening, within the country itself, of a new frontier for fossil fuel exploitation through fracking . In this way, the case also underscores the role of climate litigation as a tool for challenging decisions that could deepen dependence on fossil fuels and hinder a just energy transition.
A precedent that goes beyond Brazil
The decision by Brazil's Superior Court of Justice will have regional repercussions. Aquifers, ecosystems, and the climate system itself are not governed by borders between states or countries. Authorizing a new fossil fuel frontier means generating effects that extend far beyond the locations where the wells would be drilled.
Given the high risks, knowledge gaps, and a weakened regulatory structure, the trial offers the Brazilian high court the opportunity to affirm that precaution is not an obstacle to development, but a condition for decisions about the energy future not to transfer costs that could have been avoided to ecosystems and future generations.