DF Brazil
Political parties filed an Allegation of Non-Compliance with the Fundamental Precept (ADPF, for its acronym in Portuguese) before the Supreme Federal Court through which they demanded the "Non-operation of the Climate Change Fund" by the Federal Government (the Union).
Among the actions taken by the Union, as cited by the plaintiffs, are: the reduction of budgets and appropriations related to deforestation control; the appointment of individuals with no background in the environmental field to key positions; and the licensing of infrastructure projects without adequate impact assessments. Regarding omissions, the plaintiffs highlight: the lack of meetings of the Fund's Steering Committee, which was inoperative throughout 2019; the failure to approve the Annual Plan for the application of funds for both 2019 and 2020; and the maintenance of large cash resources within the specific budget line item for financing actions aimed at mitigating climate emergencies.
The presiding minister, Luis Roberto Barroso, issued a unilateral decision, indicating the possible existence of an "unconstitutional state of affairs in environmental matters" and calling for a public hearing to prepare a "final report." This hearing addressed the functioning of the Climate Fund and environmental public policies, with participation from the government, civil society, the business sector, and academia.
Subsequently, the plaintiff parties filed a petition requesting provisional protection to suspend the funding of the “Zero Waste” project with resources from the Climate Fund, which held all the non-reimbursable funds allocated for 2020. They argued that the project was not aligned with the guidelines of the National Climate Change Policy (PNMC) and questioned its effectiveness in addressing the climate crisis. The presiding judge denied the precautionary measure, considering that the claim concerned a specific and concrete issue, unrelated to the central objective of the action, and should be raised through its own procedural channels.
The case included several amicus curiae briefs, among them the Alana Institute, which emphasized the relationship between childhood and climate justice. It argued that children, due to their vulnerability and developmental stage, disproportionately suffer the impacts of the environmental crisis, especially climate change.
The court, by majority vote and following the opinion of Justice Barroso, declared the action admissible. It acknowledged the Union's omission in failing to allocate resources from the Climate Fund in 2019 and determined that it cannot abstain from operating the Fund or allocating its funds, further prohibiting any restriction thereof. It established the principle that the Executive Branch has the constitutional duty to guarantee the functioning of the Fund, based on the environmental protection provided for in the Constitution and on international commitments assumed by Brazil: “The Executive Branch has the constitutional duty to make the resources of the Climate Fund productive and allocate them annually for the purpose of mitigating climate change, and any contingency is prohibited, due to the constitutional duty to protect the environment (Constitution, art. 225), the international rights and commitments assumed by Brazil (Constitution, art. 5, para. 2), as well as the constitutional principle of separation of powers (Constitution, art. 2 in conjunction with art. 9, para. 2, Climate Fund Law).”
Furthermore, it equated international environmental treaties, such as the Paris Agreement, with human rights treaties, granting them supralegal status within the Brazilian legal system. In this regard, it affirmed the existence of a constitutional, supralegal, and legal duty of the Union and its elected representatives to combat climate change, a characteristic that makes it fully binding.
This case belongs to a group of strategic litigation cases known in Brazil as the “green package” (“Green Guide”).
The plaintiffs referenced the climate crisis and the international obligations assumed by Brazil through its Nationally Determined Contributions (NDCs) submitted under the Paris Agreement. Some of the commitments cited include achieving zero illegal deforestation in the Brazilian Amazon by 2030 and reforesting 12 million hectares of forest.
For its part, the decision adopted by the Court recognized that the Climate Fund is the main federal instrument intended to finance climate action and meet national objectives for reducing greenhouse gas emissions.
Furthermore, the Court considered that the resources allocated to the fight against the climate crisis seek to materialize fundamental human rights and, in that sense, equated the Paris Agreement —which seeks to strengthen the global response to the climate emergency— with a human rights treaty, giving it a higher status than ordinary laws and other inferior norms such as decrees of the Executive Branch.
Finally, in the ruling, the Court determined that the Executive Branch —by restricting the resources that are legally designated for climate action— is acting against the international human rights agreements and conventions to which Brazil is a party,” and determined that the government has the constitutional duty to allocate the necessary economic resources for the operation of the Climate Fund.
- Brazilian Socialist Party.
- Workers' Party.
- Socialism and Liberty Party.
- Sustainability Network Party .
- The Union (Federal Public Administration)
Brazil possesses 60% of the Amazon rainforest and approximately 20% of all terrestrial species on the planet; at the same time, it has become the country with the greatest loss of primary and native tropical forests in the world. Deforestation in Brazil increased by 51% during the first quarter of 2020, according to Brazil's National Institute for Space Research (INPE), with alerts in March rising by 29.9% compared to the same month in 2019. Brazil has an Indigenous population of 896,917, distributed among 305 ethnic groups, of which approximately 502,783 individuals live in rural areas and 315,180 in urban areas. Similarly, Brazil is considered the country with the largest known concentration of Indigenous peoples living in isolation. These characteristics make it highly vulnerable to the effects of climate change.
The Climate Change Fund Program was created on December 9, 2009, and is one of the instruments of the National Climate Change Policy (PNMC). It is established as a fund linked to the Brazilian Ministry of the Environment and aims to guarantee resources to support projects, studies, and the financing of initiatives focused on mitigating the effects of climate change.
To prevent the loss of its rich biodiversity and ensure the survival of indigenous peoples, it is essential to stop deforestation and degradation of the Amazon and to make good use of the Climate Fund.
- Advisory Opinion No. 23/2017 on the Environment and Human Rights of the Inter-American Court of Human Rights.
- Constitution of the Federative Republic of Brazil
- National Policy on Climate Change (Law No. 12.187/09).
- Articles 5, 170, 225 of the Constitution of Brazil (CRFB/88)
- Paris Agreement (Federal Decree 9.073/2017)
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