Guest Commentary: Brazilian’s first tort climate case for illegal deforestation in Amazonia

By Maria Antonia Tigre*

     Brazilian Amazon

Over the last year Brazil has seen numerous innovative climate litigation claims filed that have questioned the country’s climate policies and general effects of activities on climate change. (I wrote about some of those here and here.) The Amazon rainforest, the country’s not-so-secret weapon to mitigate climate change, features prominently in the litigation. The majority of the cases have been filed by the Amazon Task Force (ATF), established in 2018 by federal public prosecutors to unite the offices working to combat illegal deforestation in Amazonia. Cases have targeted the federal government for failure to contain a surge in deforestation and the federal environmental agency for easing timber exportation requirements.

A new case filed by the ATF through the Ministério Público Federal (MPF) in federal court targets a Brazilian farmer (Dauro Parreiras de Rezende) who was single-handedly responsible for the deforestation of 2,488.56 hectares (the equivalent of 4,650 football fields) between 2011 and 2018.

On April 16, 2021, the court granted an injunction – days after the case was filed – ordering the removal of the entire cattle herd from the farms that caused illegal deforestation. The court also suspended any paperwork related to the movement of cattle coming from or destined to the farms. The MPF further seeks to hold the farmer accountable for (i) residual material and intermediate climate damage, i.e., the value of emissions that deforestation has caused; (ii) collective pain and suffering as a violation of human rights (moral damages); (iii) intermediate and residual material environmental damages; and (iv) compensation for illegal profits from deforestation. This article analyzes the main legal aspects argued in the petition.

  1. Illegal deforestation in traditional land

The illegal deforestation occurred in a protected area (PAE Antimary) belonging to the federal government, intended to the extraction of Brazilian nuts by traditional communities. The land’s status as a protected area is based on recognizing the traditional territory of extractive communities in conformity with constitutional protection (art. 216). The protection of these communities relates explicitly to their territory according to the ILO Convention No. 169. Extractive activities are based on the concept of sustainable development and require forests to remain intact. Instead, the land was deforested for large livestock enterprises. The economical use of an agro-extractivist settlement cannot be distorted, either through the alienation of areas within the territory to third parties outside the traditional communities or through the unsustainable use of the territory. In practice, however, the distortion of agro-extractivist settlements through land grabbing, deforestation, and deterioration of the natural bases of extractive activities has been widespread, especially in the Amazon.

  1. The petition is grounded on human rights violation from the contribution to climate change

The plaintiffs note the adverse effects of the deforestation of Amazonia on climate change. Brazil contributes to climate change at the local, regional, and global levels and fails to comply with its international commitment to mitigate climate change by curbing deforestation. Brazil has committed explicitly to zero illegal deforestation in Amazonia by 2030 in its Nationally Determined Contributions.

The case is grounded in the right to a healthy environment, which is recognized in the constitution (art. 225), the San Salvador Protocol (art. 11, which, as a human rights treaty, has the status of constitutional norm, see art. 5, §§2; 3 of the constitution), and the Rio Declaration (Principle 1). The petition also relies on the international climate change framework (the UNFCCC and the Paris Agreement, which have both been incorporated in Brazilian law).

The emissions from deforestation directly contribute to climate change, impacting human rights. By linking human rights violations to an unbalanced climate caused by deforestation, the petitioners argue that each citizen, including the farmer in this case, has a positive duty to protect the environment and is therefore responsible for the deforestation of Amazonia. The farmer has failed his duty to collaborate to environmental protection, maintain a climate equilibrium, and violated the rights of traditional communities. As such, deforestation caused environmental damage and unauthorized 1.5 million tons of GHG emissions.

  1. Climate Damage

In the first Brazilian climate tort case, the MPF calculated the climate damage owed due to years of deforestation in an unprecedented way. The MPF argued that the farmer is responsible for climate damage amounted to R$ 44,779,679.32 (about US$ 8,750,818.06). Calculated in partnership with the Amazon Environmental Research Institute (IPAM), the climate damage is based on carbon emissions derived from deforestation and the parameters for monetizing carbon credits used in the Amazon Fund. Damage from GHG emission can be priced based on the values used, for example, in carbon capture projects, such as forest recovery and conservation, or through trades in carbon credit markets.

  1. Environmental damages 

In addition to the climate damages, the MPF requested that the farmer is held responsible for (i) the costs of repairing the environment to the status quo ante; (ii) residual and intermediary environmental damages (R$ 8,019,633.45); and (iii) compensation for illegal profits from deforestation (R$ 5,868,024.48). The area’s recovery is required by law given the environmental damage caused by the illegal deforestation. It shall be approved by the IPAM by preparing a Degraded Areas Recovery Plan (PRAD) within 90 days. If the repair is not carried out, the farmer must pay an additional indemnity of R$ 26,732,111.50. The total material damages amount to R$ 85.399.448,75.

The calculation of these damages is subjective, given the lack of legally established parameters. However, it is based on the complete restoration of the environment to the status quo ante. These residual damages are due regardless of the reparation, given that no environmental recovery can match the prior status quo. Also estimated are the loss of ecosystem services provided while the recovery is in place, called intermediary damages. Climate damages can be included in both the residual and intermediary damages corresponding to the permanent and temporary disruption of the climate services provided by the Amazon Forest. The polluter-pays principle informs these damages.

The MPF further requested compensation for collective damages, in the minimum amount of R$ 5 million. Any conduct that illegally and significantly contributes to the degradation of the Amazonian environment can be considered a violation of human rights. This is based on the fact that the maintenance of biodiversity and regular functioning of the environmental services provided by the forest is undeniably in everyone’s interest and benefit. By causing illegal deforestation and benefiting from it, the farmer has caused damages to the entire society. The violation of this right gives rise the collective, moral, environmental damages, given that the environment is a collective right. The petition notes explicitly how any act that illegally contributes to the environmental degradation of the Amazonian ecosystem can potentially violate collective rights, especially the right to a healthy environment. Similar collective moral damages have previously been granted by Brazilian courts. These damages are based on how deforestation in Amazonia directly affects the climate, and as a consequence, the lives of Brazilians and other individuals worldwide.

These amounts, once paid, must be reverted to federal inspection bodies – the Brazilian Institute for the Environment and Renewable Natural Resources (Ibama) and the Chico Mendes Institute for Biodiversity Conservation (ICMBio) – operating in Amazonas. The MPF also asks for the immediate seizure, removal, and destruction of any property preventing the natural regeneration of the deforested forest.

The case is currently pending at the 7th Federal Court in Amazonas, under Case No. 1005885-78.2021.4.01.3200. The petition opens the door for tort-based climate claims in Brazil. The Brazilian government has been unsuccessful at holding illegal violators responsible, and deforestation remains rampant, further contributing to GHG emissions. Deforestation in Amazonia significantly reduces the mitigating capacities it traditionally holds. The enforcement of environmental protection was further threatened by the spread of COVID-19 in the region. If successful, the case could bring a powerful precedent to fight deforestation in Amazonia. Thousands of farmers who illegally destroy the forest could similarly be held accountable not only for the environmental damage caused, but by the climate damage, bringing a new avenue for responsibility of violators.

*Maria Antonia Tigre is the Regional Director for Latin America at the Global Network for the Study for Human Rights and the Environment (GNHRE) and an SJD candidate at the Elisabeth Haub School of Law at Pace University.