By Maria Antonia Tigre

On October 26, 2021, Observatório do Clima (OC), a network of 71 civil society organizations, filed a class action at the federal court of Amazonas against the Environmental Ministry and Brazilian government (Laboratório do Observatório do Clima v. Environmental Ministry and Brazil). The case is the latest on a growing climate litigation trend in Brazil. It contributes to increasing pressure against President Bolsonaro for widespread environmental damage across the country, resulting from a significant lack of climate action and the pervasive destruction of the Amazon rainforest.

Omissions from the Brazilian government on climate policy

OC has filed the petition to push for increased climate action in Brazil. Brazil’s National Policy on Climate Change (NPCC and subsequent regulation) was adopted in 2009 based on Brazil’s international commitments with the UNFCCC. The NPCC establishes a binding commitment to reduce GHG emissions between 36.1% and 38.9% by 2020 against a 2010 baseline. In addition, the policy establishes five action plans for climate change mitigation and adaptation: (i) prevention and control of deforestation in the Amazon; (ii) prevention and control of fires and deforestation in the Brazilian savannah; (iii) energy expansion; (iv) mitigation and adaptation to climate change for consolidating a transition towards low carbon agriculture; and (v) reduction of carbon emissions from the steel industry. These plans should be revised every two years, but this revision has not been carried out. The petitioner in this case requests that the NPCC be updated according to the best available science and the IPCC’s sixth assessment report (Climate Change 2021) to reduce greenhouse gas emissions (GHG) by the Brazilian government consistent with a 1.5oC global warming scenario. The claim is grounded on the constitutionally recognized right to a healthy environment; fundamental rights such as the right to life, dignity, health, food, and housing; along with several recognized principles of international environmental law and international climate change commitments.

According to the petitioner, as a signatory to the Paris Agreement Brazil has committed to various duties to mitigate climate change. Along with the existing legal climate framework in Brazil, this entails a duty from the Brazilian government to (i) take the necessary measures to predict, avoid and minimize the identified causes of climate change originating in the national territory; (ii) reduce anthropogenic GHG emissions in relation to their different sources; (iii) make the instruments of the national policy effective; (iv) present successive phases of the national plan; and (v) strive for the maximum possible ambition in reducing GHG emissions. The petitioner claims that Brazil is in breach of these duties by effectively paralyzing the national climate change policy.

Background: Regression in Brazil’s NDC

Through the Nationally Determined Contribution (NDC) published in 2016, Brazil committed to reducing GHG emissions by 37% by 2025 and by 43% by 2030 as compared to a 2005 baseline. While these targets were established voluntarily, they became mandatory once the Paris Agreement was promulgated as national law in Brazil through an executive decree. These targets were significantly inflated compared to the first NDC. The original NDC considered an unrealistic 5% GDP growth and an energy growth based entirely on fossil fuels – which is extremely unlikely in a country with a significant representation of clean energy. While Brazil achieved its emission reduction goal from the NPCC, the reduction targets of deforestation in the Amazon rainforest were not fulfilled. Overall, since 2010, when the NPCC was regulated, Brazil increased emissions by 23.2%, and therefore did not alter its emissions trajectory. (See a complete analysis of Brazil’s contribution to climate change here.)

In December 2020, the government presented its updated NDC, which used the same percentage of emissions reductions, but altered the baseline for calculating them (see Brazil’s first and updated NDCs here). The targets are based on Brazil’s national inventories of emissions. The first NDC was based on the second inventory, which estimated 2005 emissions in 2.1 GtCO2e. The updated NDC, based on the third inventory, estimated 2005 emissions in 2.8 GtCO2e. In altering the methodology, Brazil effectively increased emissions by 400 million tonnes of CO2e. Additionally, Brazil had committed to reducing deforestation by 80% by 2030 in 2015 – this provision was deleted from the updated NDC.

A few days before COP26, Brazil announced a new climate target: a 50% reduction of GHG emissions relative to 2005 by 2030 and additional measures related to deforestation. The absolute numbers have not yet been published or submitted to the UNFCCC and it is unclear which metrics will be used. The new NDC can potentially get closer to the original mitigation target, but an exact match would require a percentage of 51% or 54% by 2030 depending on the metrics used. Given that the NDC is still regressive, this update does not run against the plaintiff’s likelihood of success. To align itself with the Paris Agreement, Brazil should actually increase its ambition.

The Case in Context: Related climate litigation cases

The case is part of an upsurge in climate litigation in Brazil that was fueled in 2020 as a response to the government’s regression on environmental policies. The decreased ambition in Brazil’s NDC was questioned in another case (Six Youths v. Minister of Environment and Others), but the court preliminarily found that since the NDC includes a carbon neutrality target, it cannot be considered less ambitious. The decision was appealed. In this new case, the plaintiffs assert that the updated NDCs effectively violate the Paris Agreement, the national legal framework, and the principle of non-regression. The new case is broader than the earlier one as it relates to the country’s climate policies in general. Indeed, the plaintiff cites a series of regressions in Brazil’s environmental protection system during the Bolsonaro administration, many of which are also the object of specific climate litigation cases.

For example, the Climate Fund, one of the main instruments to fund adaptation and mitigation policies in the NPCC, was paralyzed for several months. In PSB et al. v. Brazil (on Climate Fund), several political parties seek a declaration of unconstitutional omission against the paralysis of the fund’s operations and governance and an injunction compelling the government to reactivate it. (See more on that case here and here.) In addition, the same political parties brought a similar case questioning how the government paralyzed the Amazon Fund (PSB et al. v. Brazil (on Amazon Fund). This financial instrument is essential to controlling deforestation in Amazonia.

The same political parties brought another case on the government’s failure to implement Brazil’s Action Plan for Prevention and Control of the Legal Amazon Deforestation (PPCDAm) – a policy at the core of Brazil’s mitigation efforts and essential in complying with the NPCC’s goal of an 80% reduction in deforestation rates based on the average of the 1996-2005 period by 2020 (PSB et al. v. Brazil (on deforestation and human rights). Also addressing deforestation in Amazonia, the Institute of Amazonian Studies (IEA) filed a claim seeking an order to compel the government to comply with national climate law, including action plans to prevent deforestation (Institute of Amazonian Studies v. Brazil). The case also explicitly addresses the PPCDAm and seeks the recognition of the right to a stable climate. These cases, all filed throughout 2020, are still pending and can significantly impact Brazilian climate policy.

Finally, in an innovative legal strategy that attempts to include environmental destruction as a crime against humanity, the NGO All Rise filed a communication to the Office of the Prosecutor of the International Criminal Court (ICC) in 2021 (The Planet v. Bolsonaro). The NGO requests an investigation of President Bolsonaro for ongoing deforestation and related activities in the Amazon rainforest.

Takeaways: Brazil as a high emitter, Amazonia, and COP26

I argued elsewhere that Brazil has a significant role as a regional leader in climate mitigation efforts, especially as it pertains to reducing deforestation in the Amazon region. Brazil’s energy source is one of the least carbon-intensive in the world, with 47.5% of primary energy demand met by clean energy. Between 2005 and 2012, Brazil ran a successful campaign to reduce deforestation by 80%. Brazil, therefore, had met its goal under the first NDC a decade earlier. However, it has not maintained this success rate since.

Despite its relatively low carbon intensity for energy, Brazil is one of the world’s highest emitters of GHG and ranks fourth in historical emissions. Yet, unlike most countries with whom it shares this ranking, Brazil is not highly dependent on oil and gas for energy and transport. The country maintains this position primarily due to deforestation. According to SEEG, an initiative led by the OC that analyzes the evolution of Brazilian emissions, deforestation was responsible for 46% of Brazil’s emissions in 2020, accounting for 998 million tonnes of CO2e. As a result, Brazil’s emissions grew 9.5% from the previous year despite the COVID-19 pandemic, which slowed down emissions worldwide. According to the Climate Action Tracker, Brazil’s policies and actions are considered insufficient, leading to a <3oC world; its internationally supported target is considered highly insufficient, leading to a <4oC world; and its fair share target is considered critically insufficient, leading to a 4oC world.

It is clear that Brazil’s current administration has not internalized the seriousness of the climate emergency and has failed to adopt an effective climate policy. In particular, the country needs to get back on track in implementing its robust legal framework and curbing deforestation. During COP26, more than 100 countries, including Brazil, pledged to end and reverse deforestation by 2030. International cooperation is at the core of any effort to reduce deforestation (see here and here). The pledge includes about $19 billion in public and private funds to aid implementation. While the commitment to reverse deforestation is critical in the fight against climate change, the pledge is empty without mechanisms to ensure it is met. In 2014, leaders made a similar pledge in the New York Declaration on Forests that yielded few results. That fate mustn’t be repeated. The increase in climate litigation efforts in Brazil might significantly contribute to this goal, targeting specific commitments, laws, targets, and policies that could warrant Brazil a leadership role in climate mitigation once again.

By Amy Turner and Michael Burger

Cities around the U.S. have long demonstrated leadership on climate change, with more than 170 of them having set targets to phase out fossil energy and many others committing to net zero greenhouse gas emissions. American cities, towns, counties, and other forms of local government have pioneered path-setting approaches to economy-wide decarbonization, including market-moving clean energy procurements, remaking the building construction landscape, routing polluting vehicles out of center cities, and much more. Many of these cities have also foregrounded equity and climate justice in their carbon mitigation policies, seeking to improve everyday lived experiences for frontline residents.

A new Sabin Center report, Cities Climate Law: A Legal Framework for Local Action in the U.S., by Amy Turner and Michael Burger, offers a comprehensive guide for local law- and policy-makers in developing climate programs that consider and comport with federal and state law. While cities face considerable legal hurdles in enacting local climate policy, they also have significant authority to develop novel policies that can slash greenhouse gas emissions while cutting local air pollution, expanding access to opportunity, and making our cities more equitable places to live, work, and play. Cities Climate Law can help local governments move from pledges to action by demystifying the legal context in which they develop climate policy.

The law of carbon mitigation at the local level is a broad discipline, straddling federal, state, and local laws, regulations, requirements, programs, and other actions. It draws from bodies of law as diverse as environmental, energy, municipal, construction, contractual, vehicle and traffic, civil rights, constitutional, and privacy law, and applies to carbon-reducing activities across the building, transportation, energy, and waste sectors. It is also informed by the significant work done by environmental justice and climate justice law and policy experts and advocates.

Cities Climate Law delineates the legal context applicable to the following areas: Read more »

By Matthias Petel and Antoine De Spiegeleir *

VZW Klimaatzaak v. Kingdom of Belgium & Others is a climate lawsuit brought in Belgium in 2015 modelled on the famous Dutch Urgenda case. In this groundbreaking judicial procedure, plaintiffs argued that Belgian public authorities have undertaken insufficient climate action and called for its enhancement. On June 17, 2021, the Tribunal of First Instance of Brussels rendered its decision in partial favor of the plaintiffs (see unofficial English translation here). The decision consolidates a climate “duty of care” for public authorities and illustrates the enduring obstacle of separation of powers in judicial review. In this commentary, we recall the background of the case, provide context to the Tribunal’s decision, and shed light on the case’s takeaways for global climate litigation.

Read more »

Week One at COP26: Developments and Takeaways


Posted on November 9th, 2021 by ksilvermanroati

by Korey Silverman-Roati

Introduction

After an extra year’s delay and a summer of climate change-induced disasters, the 26th Conference of the Parties to the UN Framework Convention on Climate Change (COP26) entered its second week on Monday. I attended the first week volunteering with the organization Legal Response International (LRI) which provides legal aid to low-income developing nations in the negotiations. LRI’s work is important because many of the countries they aid are unable to send large delegations to follow the many threads of negotiations occurring at once at COP26. These access issues were only exacerbated by the pandemic – many small island nations vulnerable to climate change were unable to send delegates due to COVID restrictions.

The first week can be split into two parts, with different structures and outcomes in each. The first part – the Leaders Summit – involved speeches from presidents and prime ministers from around the world announcing top-line commitments with few details. The second part, once the Leaders Summit ended, returned to the normal flow of COPs, where negotiators spanned out to dozens of meeting rooms to hammer out the details of decision language. These decisions help implement and operationalize the text of the Paris Agreement, much like regulations clarify statutory law.

Read more »

By Romany M. Webb

On Tuesday, November 2, the Biden administration unveiled a suite of measures aimed at controlling methane emissions from oil and natural gas facilities. Key among those measures are new emissions controls proposed by the Environmental Protection Agency (EPA) under section 111 of the Clean Air Act. This is not the first time EPA has used section 111 to control methane. As previously reported on this blog, during the Obama administration, EPA relied on section 111 to adopt so-called “New Source Performance Standards” (NSPS) to control methane emissions from oil and natural gas production, processing, transmission, and storage facilities constructed or modified after September 18, 2015. EPA later rescinded the NSPS, following a review ordered by President Trump. Early in the President Biden’s term, Congress enacted, and the President signed, a resolution disapproving of the rescission under the Congressional Review Act (CRA). This effectively reinstated the Obama-era NSPS. EPA is now proposing to strengthen the NSPS and adopt new emissions guidelines that will, first the first time, regulate methane emissions from oil and natural gas facilities constructed prior to September 18, 2015. Here are four important things to know about the new rules:

1. EPA no longer believes other federal and state regulations sufficiently control methane emissions from the oil and natural gas industry: During the Trump administration, EPA argued that the methane NSPS duplicated other federal and state regulations, and thus were “redundant.” Specifically, EPA argued that methane emissions from oil and natural gas facilities were adequately controlled through regulations targeting those facilities’ emissions of volatile organic compounds (VOC), because the controls used to reduce VOC emissions also reduce methane emissions. EPA also emphasized that many states have regulations controlling oil and natural gas methane emissions. However, as the Sabin Center noted in comments filed with EPA at the time, those other regulations are extremely limited. As we explained:

“[M]ost large oil and natural gas producing states do not directly regulate methane emissions. Where state regulations do exist, they are often less stringent than [the EPA NSPS]. For example, whereas the [Obama-era NSPS] mandate quarterly leak surveys of all new transmission compressor stations, some state regulations require only annual monitoring. As such, the state regulations will result in less timely leak repair and thus deliver fewer emissions reductions.”

EPA now appears to agree, stating in its proposal:

“As the Federal agency with primary responsibility to protect human health and the environment, the EPA has the unique responsibility and authority to regulate harmful air pollutants emitted by crude oil and natural gas [facilities]. The EPA recognizes that states and other Federal agencies regulate in accordance with their authorities and within their respective jurisdictions but collectively do not fully and consistently address the range of sources and emission reduction measures contained in this proposal. Direct Federal regulation [by EPA] will help reduce both climate- and other health-harming pollution from a large number of sources that are either unregulated or from which additional, cost-effective reductions are available.”

2. EPA proposes to strengthen the Obama-era controls on methane emissions from so-called “new” oil and natural gas facilities: As noted above, the CRA resolution reinstated the methane NSPS for oil and natural gas facilities constructed or modified after September 18, 2015. The requirements imposed by the NSPS have already come back into effect. EPA is now proposing to strengthen those requirements.

Read more »

 1 comment  

Chelsea Gómez joined the Sabin Center for Climate Change Law in October 2021 and serves as a Graduate Research Assistant supporting research on City Focus Groups on Climate and Equity-based Policies.

Chelsea is currently a Master of Public Administration candidate focusing in Environmental Science and Policy at the School for International and Public Affairs within Columbia University. She previously worked as a Community Climate Ambassador for the Office of Sustainability in Austin, TX, where she documented marginalized communities’ experiences to guide the creation of the Austin Climate Equity Plan. Prior to that she served as a Peace Corps Volunteer in The Gambia, where she worked as an Agriculture/Environment Extension Agent. While there she collaborated with local schools to develop year-round school gardens, expand sustainable agriculture practices and establish a tree nursery program run by students. Her main project focused on establishing apiaries within the village’s forests, thereby reducing deforestation through sustainable, income generating activities for the community. She holds a Bachelor of Science in Environmental Science and Policy from St. Edward’s University.

Leah Adelman also joins the Sabin Center this week as a Graduate Research Assistant, where she will be working on the Climate Regulation Database, the New York State and City Climate Law Trackers, and the Renewable Energy Legal Defense Initiative’s resource banks.

Leah is pursuing a Master’s in Climate and Society from the Columbia Climate School. She received her undergraduate degree from the Ford School of Public Policy at the University of Michigan, where her concentration was energy policy. While there, Leah was a policy analyst for the Graham Sustainability Institute, working on projects related to renewable energy zoning in the Midwest. She spent the past summer as the Federal Affairs intern for the American Clean Power Association and was previously an intern at the U.S. House of Representatives.

We are thrilled to have Chelsea and Leah on board with us and look forward to their contributions to our growing body of work!

By Maria Antonia Tigre

 

On September 20, 2021, the German environmental organization Deutsche Umwelthilfe (DUH) filed two actions against the automakers BMW and Mercedes-Benz for refusing to tighten their carbon emissions target and stop producing fossil fuel fuel-emitting cars by 2030 (DUH v. BMW and DUH v. Mercedes-Benz). The cases represent the first climate lawsuits against the auto industry outside the United States. DUH had previously sent BMW and Mercedes a cease and desist letter asking for a declaration that the companies would not bring any more fossil fuel emitting passenger cars and light commercial vehicles to the market starting in 2030. A similar letter was sent by Greenpeace to Volkswagen. Since the automakers refused to comply with their demands, DUH filed the lawsuits. Greenpeace gave Volkswagen additional time to comply; if Volkswagen also refuses, a similar lawsuit will follow.

DUH asks the automakers to stop producing individual combustion engine (ICE) cars by October 31, 2030, if they cannot prove carbon neutrality. For the period between January 1, 2022, and October 31, 2030, DUH asks automakers stop bringing new ICE cars onto the market if they cannot prove carbon neutrality for emissions exceeding the average real use of passenger cars. This would be based an average individual car mileage of 200,000 km. The requested ban on producing new fossil-fuel cars would be earlier than the 2035 effective ban proposed by the European Union in July 2021 as part of a broad package of measures to combat global warming. The significance of the case relies on the role of auto companies in the climate crisis. According to the plaintiff, BMW was responsible for 93.8 million tons of CO2 in 2019, representing more emissions than Austria or Greece. Mercedes-Benz emitted 118.5 million tons of CO2 in 2019, more than Venezuela, a country that heavily relies on fossil fuels.

Read more »

 1 comment  

By Maria Antonia Tigre

The last few days saw two major developments in international rights-based climate litigation, with the adoption of a new resolution by the United Nations Human Rights Council (HRC) and a long-awaited decision on a climate case by the Committee on the Rights of the Child (CRC). This post takes note of the progressive development of human rights and the environment, and climate change, in particular, while placing them within the broader context of rights-based climate litigation.

Recent Developments on rights-based climate litigation

On October 8, 2021, at the HRC’s 48th session, forty-three nations adopted resolution 48/13, recognizing the right to a safe, clean, healthy, and sustainable environment as a human right. The resolution is a landmark moment in a years-long evolution – at the HRC, within the Office of the High Commissioner of Human Rights, in the work of the Special Rapporteur on human rights and the environment, elsewhere around the United Nations, and in advocacy and legal scholarship. While the resolution is not legally binding, it represents a significant political statement that could shape global standards. In particular, the recognition can embolden stakeholders and courts, to adopt a rights-based approach to climate litigation. On October 12, 2021, the CRC published its decision in Sacchi et al. v. Argentina et al. (dated September 22, 2021). While the CRC rejected the youth petitioners’ claim as inadmissible, it found that each State has duties to address climate harm outside its own territory, and therefore can be held responsible for the negative impact of its carbon emissions on the rights of children within and outside its territory. Read more »

By Jessica Wentz,

The IPBES Global Assessment on Biodiversity and Ecosystem Services (2019) estimated that approximately one million species are currently at risk of extinction, with climate change being a major driver of accelerating extinction risk. Global average temperatures have risen by more than 1°C above pre-industrial levels and we are on track to exceed 2°C of warming in this century. Recent research on climate change detection and attribution – which examines how anthropogenic climate change is currently affecting our planet – has shown that habitats and species are already being adversely affected by phenomena such as warming land and water temperatures, ice and permafrost melt, sea level rise, more extreme weather events, and other changes in the bioclimatic conditions of specific habitats. These phenomena are driving changes in species distribution, phenology, and population dynamics, as well as changes in the structure and function of ecosystems and the timing of ecological processes.

In a new working paper, Sabin Center fellow Jessica Wentz examines the role of climate change detection and attribution science in Endangered Species Act (ESA) decision-making. Attribution science can help decision-makers identify general trends in how climate change affects species and habitats, evaluate the extent to which specific species are already imperiled as a result of climate change, and develop better management solutions to address the risks posed by climate change. Attribution science can also improve predictions of future impacts under different warming scenarios by providing insights into how climate change is already affecting species and habitats today. This type of information can help support a variety of ESA management actions, including species listing decisions, critical habitat designations, jeopardy determinations, and the development of species recovery plans. Read more »

 2 comments  

By Michael B. Gerrard

Note: On September 26, 2019, the Vanuatu Permanent Mission to the United Nations hosted a workshop on seeking an advisory opinion on climate change from the International Court of Justice. Professor Michael Gerrard gave a presentation about the legal and procedural issues that would be involved. In view of recent press interest in Vanuatu’s effort to obtain such an opinion, a slightly edited version of this presentation is provided below.

Flickr: International Court of Justice, The Hague 

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was created in 1946 as successor to Permanent Court of International Justice. It sits in the Hague. It has 15 judges. They are elected to nine-year terms by the General Assembly and the Security Council upon the nomination of their home governments.

The ICJ can issue two kinds of decisions – contentious and advisory. To my knowledge every lawyer and scholar who has looked at the issue of presenting a climate change case to the ICJ has concluded that an advisory opinion is the way to go. Contentious cases can only be brought by and against countries that have voluntarily accepted the jurisdiction of the ICJ for this kind of case, which is very limiting. For example, the world’s two largest emitting nations – China and the U.S. – have not accepted the ICJ’s jurisdiction here. Contentious cases also pose additional procedural hurdles and limitations. The ICJ’s decisions in contentious cases have more limited applicability and may not go as far as advisory opinions. In the case of climate change, a contentious case that attempted to assign responsibility to particular countries would face many problems of causation and proof that are not present in advisory cases. Read more »

LexisNexis Environmental Law and Climate Change Community 2011 Top 50 Blogs

Disclaimer

This blog provides a forum for legal and policy analysis on a variety of climate-related issues. The opinions expressed here are solely those of the individual authors, and do not necessarily represent the views of the Center for Climate Change Law.

Climate Law Links

Subscribe

Archives

Categories

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.