A new climate litigation claim in Brazil raises the pressure for increased climate action and protection of the Amazon rainforest

A new climate litigation claim in Brazil raises the pressure for increased climate action and protection of the Amazon rainforest

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.

Global Climate Litigation Fellow at Sabin Center for Climate Change Law at Columbia Law School | Website

Dr. Maria Antonia Tigre is the Global Climate Litigation Fellow at the Sabin Center for Climate Change Law at Columbia Law School.