In July 2022, the Brazilian Federal Supreme Court (STF) concluded in the so-called Climate Fund case that the federal government had failed to fight the significant increase of deforestation of the Amazon in recent years. Consequently, the court ruled that Brazil had failed to fight global warming and climate change.
By 10 votes to 1, the STF decided that the executive branch has the duty to ensure the timely activation and fulfillment of the so-called Climate Fund, allocating funding on an annual basis, with no contingency allowed, due to the constitutional duty to protect the environment and the international commitments assumed by Brazil. The majority decision followed the vote of the reporting justice, Luís Roberto Barroso.
On the one hand, the STF’s decision represents a major victory for the political parties that proposed the lawsuit and civil society entities focused on environmental protection, particularly the protection of the Amazon. It is, for sure, one of the most important environmental and climate litigation cases ever heard by the court, given the tremendous political and juridical repercussions of the case and the significant financial resources dedicated to the protection, control, and confrontation of deforestation in the Amazon that the Climate Fund holds from abroad (for example, from Norway and Germany).
The decision takes place in a context in which, according to official data from the National Institute for iSpace Research (INPE), there has been a substantial and progressive increase in deforestation in the Amazon region. Other sources note the fast-approaching tipping point of “savannization” of the world’s largest tropical forest.
Another important aspect is that the judgment was preceded by an extensive public hearing held by the STF in September 2020. This hearing involved the participation of various authorities, civil society representatives, productive sector entities, Indigenous populations, scientists, and academics. A representative of the United Nations Environment Programme (UNEP) and the Special Rapporteur on Human Rights and the Environment of the Office of the UN High Commissioner for Human Rights also attended.
Crucially, previous judgments regarding the role of international law in the Brazilian constitutional and legal order had begun to develop the jurisprudence that the Climate Fund decision consolidated. The STF, for instance, granted the international environmental law treaties the same rank given to international human rights treaties. Justice Roberto Barroso’s opinion approached this matter from the perspective of the interdependence of all human rights: “treaties on environmental law constitute a species of the genus human rights treaties and, for this reason, enjoy supranational status.”
The recognition of the “supra-legal status” of international treaties on environmental matters ratified by Brazil—for example, the Framework Convention on Climate Change (1992), the Framework Convention on Biodiversity (1992), and the Paris Agreement (2015)—places them above all Brazilian infra-constitutional legislation, even legislation about environmental protection. Only a constitutional norm would rank above them hierarchically. In practice, this understanding allows national judges and courts to exercise the so-called “control of conventionality” of legislation, administrative acts, and even judicial decisions that contradict international treaties on environmental issues.
The STF decision, in line with its previous case law, has also strengthened the protection of the fundamental right to a healthy environment. Further, for the first time in its jurisprudence, it has implicitly recognized the state’s constitutional duties to protect the climate, binding the legislative and executive branches and, therefore, limiting its discretion. The constitutional imposition of climate protection is certainly incompatible with the “situation of collapse in public policies to combat climate change, undoubtedly aggravated by the omission of the current executive branch,” as mentioned in the decision. According to Justice Barroso, “there is no legally valid option of simply omitting to combat climate change.”
In the view of the STF, recognized in November 2022’s Amazon Fund case, the federal government’s failure to fight deforestation in the Amazon region and, consequently, climate change also represents a further violation. The Brazilian constitution consecrates the principles of the prohibition of environmental regression and the prohibition of insufficient protection of the fundamental right of the present and future generations to live in a healthy environment, which includes a clean, balanced, and safe climate system.
The STF is not—nor should it be—the main state actor responsible for environmental protection, a role that is fulfilled primarily by the legislative and executive powers. Nevertheless, considering the increasingly pro-environment jurisprudence of the STF, it is undoubtedly the case that the Brazilian Federal Supreme Court has been a very important player in this field.