The Supreme Court (STF) judged, on July 4 of this year, the Investigation of Non-compliance with Fundamental Precept 708 (ADPF 708), one of the actions that make up the so-called Green Agenda and deals with climate litigation, a theme of great importance in the current environmental jurisprudence.

ADPF 708 was filed in 2020 by several political parties on the grounds that the Union had been in compliance with climate and policy obligations related to the National Climate Change Fund (Climate Fund), created by Law 12.114/09 and mentioned in the National Climate Change Policy instituted by the Law 12.187/09.

In July of this year, the full court[1] of the Supreme Court, by majority, with a vote against only the Minister Nunes Marques, upheld the action to:

  • recognise that the Union is silent, as it has not fully allocated the resources of the Climate Fund for the year 2019;
  • order the Union to cease to omit to operate the Climate Fund or allocate its resources; and
  • prohibit the contingency of revenues that are part of the Climate Fund, setting the following judgment thesis: "The Executive Branch has a constitutional duty to make the resources of the Climate Fund work and allocate annually, for the purpose of mitigating climate change, and its contingency is being limited, due to the constitutional duty of protection of the environment (CF, art. 225), of international rights and commitments assumed by Brazil (CF, art. 5, para. 2), as well as the constitutional principle of separation of powers (CF, 2º c/c art. 9º, par. 2nd, LRF)".

In his vote, Minister Luiz Roberto Barroso, rapporteur of the case, acknowledged that the Union was omitted in the management of the Climate Fund, which constitutes a violation of the right to the balanced environment and the fulfillment of international commitments to which Brazil is a signatory. The Minister recognized the constitutional nature of issues involving climate change, based on Art. 225 of the Federal Constitution:

"4. Constitutional, superlegal and legal duty of the Union and elected representatives to protect the environment and combat climate change. The issue, therefore, is of a binding legal nature, and it is not a free political choice. Determination to refrain from omissions in the operationalisation of the Climate Fund and the allocation of its resources. Arts intelligence. 225 and 5, § 2, of the Federal Constitution (CF).

(...)

16. Contrary to what the Presidency of the Republic and the General Law Of The Union claim, the question relevant to climate change is a constitutional matter. In this line, Art. 225, caput and paragraphs, of the Constitution expressly establishes the right to the ecologically balanced environment, imposing on the Public Power the power-duty to defend, preserve and restore it, for gifts and future generations. Therefore, environmental protection is not part of the Chief Executive's political judgment of political, convenience and opportunity. This is an obligation to which compliance is bound. In the same vein, the Constitution recognizes the supralegal character of the international treaties on human rights of which Brazil is part, pursuant to article 5, § 2.

17. In the same vein, the Constitution recognizes the supralegal nature of the international treaties on human rights of which Brazil is a party, pursuant to article 5, § 2. And there is no doubt that environmental matters fall under the hypothesis. As well remembered by the UNEP representative in Brazil, during the public hearing: "There are no human rights on a dead or sick planet" (p. 171). Treaties on environmental law constitute a species of the genus human rights treaties and therefore enjoy supranational status. Thus, there is no legally valid option to simply omit in the fight against climate change".

As shown in the transcript ion above, the vote of Minister Luiz Roberto Barroso attributes to the Paris Agreement a hierarchical position superior to infraconstitutional norms, granting it a constitutional character, since the Paris Agreement would be equal to international treaties on human rights. The understanding is in line with the terms of the Article 5, § 2, of the Federal Constitution.

The trial is extremely relevant to the subject of climate litigation, as it consists of another supreme court judge on the subject and takes an important step to leverage environmental policies in the country.

In addition to the ADPF 708, the Green Agenda comprises the following actions:

  • ADPF 760, filed on 11/12/2020 with the objective of resuming the Action Plan for Prevention and Control of Deforestation in the Legal Amazon (PPCDAm);
  • Direct Action of Unconstitutionality by Omission 54 (ADO 54), filed on 8/22/2019 on the grounds of unconstitutional omission of the Federal Government "in the task of combating deforestation, in order to achieve the purpose of making effective Articles 23, items VI and VII, and 225, caput and § 1, items VI and VII, of the Federal Constitution";
  • ADPF 651, filed on 2/10/2020 with the aim of questioning the constitutionality of Presidential Decree 10,224/20, "which, on the pretext of regulating Law 7.797/89 – which creates the National Environmental Fund (FNMA) – excludes civil society from the deliberative council of the FNMA, which affronts the Federal Constitution in its most basic precepts";
  • ADPF 735, filed on 9/1/2020 against Decree 10,341/20, in joint reading with Ordinance 1.804/GMMD/20, on the grounds of incompatibility of these norms with constitutional precepts, especially the right to the ecologically balanced environment. Together, the two rules authorize the use of the Armed Forces in the fight against environmental crimes, which harms the environmental protection system, to the extent that it entails and aggravates the emptying of the functions of environmental protection agencies and the Ministry of the Environment itself;
  • ADO 58, filed on 6/5/2020 to claim recognition of unconstitutionality by default of the Union due to the non-availability of the amounts already deposited in the Amazon Fund;
  • Direct Action of Unconstitutionality 6,148 (ADI 6,148), filed on 5/30/2019 against Resolution of the National Council for the Environment (Conama) 491/18, which provides for air quality standards, on the grounds that the resolution entails insufficient protection for the rights to information, health and the ecologically balanced environment; and
  • ADI 6,808, filed on 4/22/2021 to request the declaration of unconstitutionality of Articles 6 and 11-A of Law 11,598/07, with the amendments granted to it by Article 2 of Provisional Measure 1.040/21, on the grounds that this provisional measure includes in the law for the automatic grant of environmental license to companies of medium risk-grade activities, in addition to making it impossible for environmental agencies to request additional information for the licensing of these companies.

Although they address issues different from that of ADPF 708, two other actions that make up the Green Agenda, mentioned above, were recently judged by the Supreme Court. ADI 6.148 was dismissed on 5 May this year to declare the constitutionality of Conama Resolution 491/18, but Conama was ordered to issue a new resolution on the matter within two years, including the following issues:

  • the current Guidelines of the World Health Organization on appropriate air quality standards;
  • the national reality and local peculiarities; and
  • the primacy of free enterprise, social development, poverty reduction and the promotion of public health.

ADI 6,808 was found partially well founded on April 28 of this year to determine the exclusion of Articles 6 and 11a of Law 11,598/07 on environmental permits. The legal provisions mentioned, however, were not considered unconstitutional.

 

[1]    The Supreme Court is composed of 11 ministers, and the full court, or plenary is formed by the 11 ministers and chaired by the president of the court. It is up to the plenary to judge the unconstitutionality or constitutionality of the laws, with a minimum quorum for the vote on constitutional matters of eight ministers (art. 143, § the only one of the rules of procedure of the Supreme Court).