IEA v. Brazil: When a court accepts the legally disruptive nature of climate change
By Maria Antonia Tigre, Délton Winter de Carvalho and Joana Setzer
On December 07, 2021, the Federal Regional Court of the Fourth Region (TRF4) – one of Brazil’s federal courts of appeal – decided what should be the competent jurisdiction to hear the case of IEA v. Brazil. The decision may have gone unnoticed. Yet it significantly advances climate litigation in Brazil, with important consequences for future cases. This is the first time that a court has drawn the differences between environmental and climate litigation. Such explicit recognition can be important in raising awareness about the climate crisis and might have consequences in how a court treats scientific evidence and uncertainties. It can also help solve conflicts of jurisdictions (such as in the IEA case), even if that means recrafting legal doctrines. The decision suggests that courts can reconcile the legally disruptive nature of climate change with the fundamental role that adjudication plays in maintaining the stability of legal orders, and it could influence other cases and decisions across the world.
In IEA v. Brazil, the Institute of Amazonian Studies (IEA) calls upon the Brazilian Federal Government to take appropriate measures to comply with the federal law that instituted the National Policy on Climate Change (NPCC) and thus enforce compliance with the Plan to Prevent and Combat Deforestation in the Legal Amazon – PPCDAm. Specifically, this action seeks (i) recognition of a fundamental right to climate stability for present and future generations; and (ii) a court order for the federal government to comply with its own climate policies. Should the rate of 3,925 km2/year for deforestation in the Amazon for 2020 be exceeded, the IEA further asks the court to declare (iii) an obligation for the federal government to reforest the area equivalent to the area in excess of the limit set forth in the PPCDAm (the actual deforested area is 2020 comprises 13.235 km2); and (iv) a judicial order for the defendant to allocate sufficient budgetary resources for this purpose (curb deforestation and/or promote reforestation), as well as to use all available resources for this task.
In its response to the petition, the Attorney-General for the government claimed an alleged connection between this case and another case filed by the Federal Prosecutor Office before the 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas (Federal Prosecutor Office v. IBAMA). In that case, the Prosecutor’s Office asks the government to operationalize monitoring bases in ten critical areas of deforestation in the Amazon, as foreseen in the PPCDAm, to fight environmental crimes, in particular deforestation, which aggravates the climate crisis and is directly linked to violations of land rights and other fundamental rights of traditional peoples and indigenous communities in the region.
In July 2021, the Federal District Court of Curitiba issued an order rejecting jurisdiction and transferring the case to the Court of Amazonas. The lower court found that both lawsuits aimed at combating illegal deforestation in the Amazon and both referred to the PPCDAm, thus presenting “sufficient similarity” or “close connection” between the issues discussed, thereby “giving rise to an undue risk of conflicting solutions.” IEA appealed the transfer decision to the federal appellate court (TRF4).
The Federal Court of Appeal’s decision
On August 20, 2021, the TRF4 (through a decision from the reporting judge) suspended the lower court decision to transfer the case and returned the case to the Federal District Court of Curitiba. The court found that IEA v. Brazil and Federal Prosecutor Office v. IBAMA “present quite different typology and structure, specialized instruments and distinct political-legal approaches, in addition to the fact that their object, cause of action and demands do not coincide.” The court further noted that IEA v. Brazil aims to pressure the legislative and executive branches to ensure a stable climate, while Federal Prosecutor Office v. IBAMA addresses matters related to environmental law, rather than Brazilian climate legislation.
On December 7, 2021, the third chamber of the appellate court confirmed the decision. The court found that while both lawsuits concern illegal deforestation in the Amazon, IEA v. Brazil seeks to combat deforestation with the aim of reducing carbon emissions and achieving the Brazilian climate target. Federal Prosecutor Office v. IBAMA, on the other hand, sets out “to make various governmental administrative agents implement measures to combat and control environmental violators who act, prejudicially, in those points of the Amazon forest with the greatest threat of destruction, the so-called ‘ecological hotspots,’ specifically during the period in which the pandemic persists (Covid-19).”
As clearly noted in the decision, IEA v. Brazil is a climate case which addresses the global nature and the future time scale of the climate crisis, and Federal Prosecutor Office v. IBAMA is an environmental law case which addresses a local problem (combating deforestation in ten hotspots) in a determined temporal framework (the Covid-19 pandemic). The TRF4 therefore explicitly recognized that climate litigation is distinct from traditional environmental litigation, in that climate cases have intergenerational repercussions and a global character.
Significance of the decision
This is the first time that a Brazilian Court – and possibly the first court in the world – has drawn the differences between environmental and climate litigation, providing autonomy to the latter, while acknowledging the common ground between them. Both arise from the same foundation: the right to a healthy environment. However, providing greater specificity to climate claims could be a ‘watershed’ to some climate litigation cases.
One of the hallmarks of climate litigation is its transnational nature, which results in a reciprocal influence of decisions obtained in different legal traditions. For example, the TRF4 makes express reference to precedents in climate litigation from other countries, such as the decisions in Massachusetts v. EPA, Urgenda Foundation v. State of the Netherlands and Leghari v. Federation of Pakistan. Likewise, the decision in IEA can potentially ‘travel’ and inspire other cases and decisions across the world. Careful consideration is therefore warranted for the potential transnational ramifications of this decision.
Second, polycentric problems such as climate change pose considerable challenges in defining which jurisdiction or court should be competent to adjudicate a case. In climate litigation, the diffuse and multifaceted nature of the problem can lead to conflicts of jurisdiction and unwanted overlaps. A court deliberation which takes into consideration the autonomous climate function of a case and the uniqueness of the problem might be better suited to address such conflicts. As we saw in the IEA case, even if two lawsuits address the same issue, the one that is primarily a climate case might require a judicial analysis that takes into consideration distinct functions of the law. When exploring the legally disruptive nature of climate change, Elizabeth Fisher, Eloise Scotford and Emily Barritt argued that climate change requires a ‘break’ in the continuity of existing legal practices and doctrinal ‘business as usual’. A decision such as the one handed by the court of appeals in IEA v. Brazil suggests that courts are being capable of reconciling the legally disruptive nature of climate change with the fundamental role that adjudication plays in maintaining the stability of legal orders, even if that means “recrafting or rethinking of legal doctrine” (Fisher at al 2017, p. 175).
The autonomy of the climate subject matter calls for a deepening of the climate system as an autonomous legal asset which, while integrated with the environment, has its own specificities and scientific basis. To this end, a structured legal foundation for climate change law is already in place, and it combines instruments of international law, national law and transnational law. Yet the ‘advantage’ of this recognition of the cases’ autonomy comes with a few caveats. Being ‘directly linked to a (fundamental) right whose legal object is the stability of the climate system’ [as it was in the text] doesn’t mean that the case is seeking the recognition of a ‘right to a stable climate’. IEA gave this step further, but many other rights-based cases (including Juliana v. United States) engage with this idea that they are pursuing climate stability. The distinction between a ‘direct climate case’ or an ‘environmental case with indirect climate repercussions’ can also be problematic, as some cases may not be directly framed as climate cases and yet achieve the same climate repercussions. In terms of justiciability, this recognition might in fact have a negative effect, as some courts have been reluctant to address climate change directly due to questions of separation of powers. The decision in IEA v. Brazil illustrates this combination and could potentially influence other climate cases and decisions across the world.