In a groundbreaking move, Brazil’s Supreme Court asserts the Paris Agreement’s status as a human rights treaty, rebuking the Federal Union for inaction on the Climate Fund.
In June 2020, four political parties (plaintiffs) filed a lawsuit against the Federal Union (defendant), claiming that the National Climate Change Fund (Climate Fund) had not been used to support climate change projects as intended. The plaintiffs contended that the Ministry of Environment had ceased operating the fund since 2019, breaching its legal obligations and constitutional duties to safeguard the environment and manage ecological processes. Their plea to the court was to reinstate the fund, mandate the Federal Union to devise and present annual plans and prohibit the future misuse of the Climate Fund’s resources.
The Supreme Federal Court responded quickly and admitted the case for failure to comply with a fundamental precept. They held public hearings and requested information on fund allocation. At first, the court rejected a preliminary injunction on one of the plaintiffs’ requests due to the vagueness of irregularities and the lack of substantial evidence to corroborate the allegations. However, in June 2022, the Supreme Court ruled against the Federal Union, affirming the executive branch’s obligation to execute and allocate resources from the Climate Fund for combating climate change. The Court underscored that international environmental treaties, such as the Paris Agreement, hold supranational status and take precedence over conflicting national laws. The State violated the Constitution and human rights by failing to allocate funds, and the Court emphasized the obligation to mitigate climate change under international commitments.
In 2019, Suely Araújo, a Brazilian lawyer and specialist in urban planning and the environment, began work with The Observatório do Clima (OC), a coalition of NGO-focused environmental organizations. While working as a legal consultant, Araújo monitored the Federal Union’s environmental expenditures. She noticed a glaring absence: the Climate Fund, an integral component of the Brazilian National Policy on Climate Change (PNMC, Federal Law 2.187/2009), was not allocating resources to projects. Intertwined with the Paris Agreement, the Climate Fund addresses climate finance according to international standards, playing a pivotal role in fulfilling Brazil’s Nationally Determined Contributions (NDCs) by facilitating adaptation and mitigation measures.
Collaborating with OC, Araújo worked alongside other lawyers and joined forces with four political parties, who acted as the plaintiffs, to bring the case to the Supreme Court. During the Bolsonaro administration, political parties established a precedent coordinating to bring cases before the Supreme Court, expressing resistance and opposition. The plaintiffs asserted that suspending Climate Fund activities violated the Ministry of the Environment’s (MoE) legal obligations. They argued that the MoE was legally bound to apply the precautionary principle to safeguard the environment, combat pollution and produce an annual plan. The lack of action on climate policies breached the plaintiffs’ constitutional duties and rights. Their plea to the Supreme Court encompassed reactivating the Fund’s operations, ensuring its adequate resourcing, mandating the production and presentation of annual plans and preventing any future stalling of the Fund’s resources.
Initially filed as an “Ação Direta de Inconstitucionalidade por Omissão” (ADO)—a legal action aiming to declare that the legislative or executive branch failed to protect a constitutional norm by omission—the Court received the case as an “Arguição de Descumprimento de Preceito Fundamental” (ADPF). The latter, a constitutional action, seeks to prevent or rectify an infringement of a fundamental precept without questioning the law’s constitutionality. Swiftly addressing the matter, Reporting Justice Barroso issued an independent decision casting doubt on the Union’s inaction as potentially unconstitutional, initiating public hearings. Subsequently, the Federal Union and the Economic and Social Development Bank were asked to provide financial information regarding the Climate Fund’s receipts and project expenditures.
In 2022, the Supreme Court ruled 10-1 to uphold the action, asserting that the Federal Union failed to fulfill its legislatively mandated duty. The Court emphasized the Union’s constitutional obligation to allocate and disburse funds per the separation of powers and the constitutional right to a healthy environment (R2HE). Furthermore, the Supreme Court justices affirmed that international environmental treaties, including the Paris Agreement, are international human rights treaties with greater legal weight within the Brazilian legal system than domestic legislation. The practice establishes a constitutional obligation for the government and elected representatives to address climate change, aligning state actions with Article 225 of Brazil’s Federal Constitution.
The case was initially filed as an ADO, aiming to declare that the Federal Union, through its omission, had failed to fulfill its legally mandated duties by rendering the Climate Fund inoperable. Additionally, as a subsidiary claim, the plaintiffs requested that the Court consider admitting the case as an ADPF, which would be appropriate if the Court identified a violation of a fundamental precept.
The Brazilian Federal Constitution guarantees the “right to an ecologically balanced environment” (R2HE), which the government is mandated to ensure. The constitutional guarantee encompasses the duty to preserve and restore ecological processes and manage and regulate spaces and elements posing risks to life, quality of life and the environment. In defense of R2HE, the plaintiffs argued for observing precautionary measures and referenced Supreme Court precedent that upholds the precautionary principle. By withholding funds and denying authorization for new projects, the Federal Union acted unconstitutionally, disrupting the balance of powers and depriving regional and local entities of crucial resources.
The Court accepted the case as an ADPF, avoiding the argument that the case became moot once the federal government allocated funds during the litigation. In favor of the plaintiffs, the Supreme Court concurred that there were federalism issues and violations of a fundamental precept. The State was obligated to uphold R2HE per Article 225 of the Constitution. Under the principle of separation of powers, the State must make available funds that “constitute constitutional and legal obligations.” Therefore, failing to provide adequate resources to the Climate Fund amounted to an unconstitutional omission. The Court instructed the Executive Branch to activate the Fund’s resources and allocate funds annually to address climate change and achieve a safe climate, in line with its constitutional duty to safeguard the environment and R2HE.
After the plaintiffs’ submission, many organizations submitted amici curiae briefs, and several others participated in the public hearing. The public hearing–conducted by Justice Rapporteur Barroso in 2020– intended to gather more information on the Climate Fund, including its functions, and to address environmental public policy issues.
The plaintiffs cited Brazil’s international commitments to collaborate on environmental agreements. Brazil had signed and ratified the Paris Agreement, subsequently submitting its Nationally Determined Contributions. They argued that the authorities’ inaction jeopardized Brazil’s adherence to the Agreement, potentially leading other nations to respond with reprisals against Brazil for its alleged breach. Specifically, there were concerns about the potential cessation of funding for climate change mitigation.
This line of argument resonated with the Court, which affirmed the supralegal or supranational status of international human rights treaties. Article 5 §2 of the Brazilian Constitution acknowledges such human rights treaties as fundamental law with supralegal status, eclipsing domestic legislation. The Court stated that environmental treaties fall within the human rights category. Consequently, the government had no legal justification for neglecting to address climate change.
Brazil’s federalist system distributes powers among the Federal Union and regional and local governments. The Climate Fund was crucial in providing resources to regional and local governments for environmental protection and addressing climate change. The Plaintiffs argued that it was the Federal Union’s obligation to allocate these resources, and their failure to do so constituted an unconstitutional omission, disrupting the separation of powers and violating the constitutional R2HE.
The Court determined that the Union and its representatives held a legal duty, extending beyond national legislation, to safeguard the environment and combat climate change. Consequently, they were obligated to activate the Climate Fund and ensure its resources reached the intended destinations. Their omission, in violation of a fundamental precept, had inhibited other branches of the Federalist system from fulfilling their constitutional, legislative and fundamental duties.
The Federal Union’s failure to act on Brazil’s Climate Fund violated legislative, constitutional and international obligations. The Supreme Court’s ruling emphasized the supremacy of international human rights treaties in addressing climate change, highlighting their precedence over national legislation. The Court found the Federal Union’s non-allocation of Climate Fund resources impermissible and directly linked it to Brazil’s constitutional commitment to protect the environment and fulfill international obligations. The decision underscored environmental treaties as human rights treaties and highlighted the Federal Union’s obligation to mitigate climate change. R2HE intertwines with the worsening environmental conditions of a warming planet.
