PSB, P-SOL, PT, REDE v. União [2022] ADPF 708 (1 July 2022) (published 11 July 2022)

Climate Change United Nations Framework Convention on Climate Change
Human Rights

Supreme Court / Supremo Tribunal Federal (Brazil)

Four Brazilian political parties filed a Constitutional Challenge ADPF claiming that the Federal Union violated the right to a healthy environment when it kept the National Fund on Climate Change (Climate Fund) inactive during 2019 and 2020.

The Climate Fund (created by Law No. 12114/2009) is the primary federal instrument aimed at funding the fight against climate change and meeting greenhouse gas emission reduction targets in Brazil.

The plaintiffs requested: (1) the resumption of the Fund’s operation; (2) a declaration of the Union’s duty to allocate financial resources to the Fund and to abstain from further omissions; and (3) a ban on the restriction of Fund amounts, based on the constitutional right to a healthy environment.

The majority of the court signed on to the opinion written by the Reporting Justice which rejected the preliminary objections raised by the Federal Government that this was not a constitutional matter. Para. 2 & 3.

Before analyzing the merits, the Reporting Justice outlined the context of climate change, the commitments made by Brazil and the serious setback in environmental matters in the country.

When reviewing the voluntary climate commitment assumed by Brazil in 2009, the Rapporteur recalled that, although the document was merely a political declaration with no binding nature, the announced goal was adopted under Law 12.187/2009 – which established the National Policy on Climate Change. Para. 10.

Climate Change is a Constitutional Matter and Environmental Treaties are Human Rights Treaties

Citing the right to an ecologically balanced environment found in Article 225, the court declared that the issue of climate change constitutes a constitutional matter. Para. 16.. Furthermore, the court found that

the Constitution recognizes the supra-legal nature of the international treaties on human rights to which Brazil is a party, under the terms of its article 5, §2. And there is no doubt that the environmental issue fits in that category.  […] Environmental law treaties are a species of the genus human rights treaties and enjoy, for this reason, supranational status. Thus, there is no legally valid option of simply omitting to combat climate change.[1]

Para. 17.

The Principle of the Prohibition of Regression in Environmental Protection

The court acknowledged that the country is moving in a direction contrary to the international commitments it has undertaken. In this sense, the Reporting Justice clarified that the principle of the prohibition against regression is especially prominent when it comes to environmental protection. The principle is violated when “the level of environmental protection is reduced through inaction or when relevant public policies are suppressed without being duly replaced by other equally adequate policies.”[2] Para. 18.

The Government Failed to Act

Regarding the Climate Fund, the Reporting Justice found that the Federal Government improperly failed to act by not allocating the financial resources for the Climate Fund in 2019 and part of 2020. The omission resulted from a deliberate decision of the Executive Branch to wait for a change in the constitution of the Fund’s Steering Committee before acting.

The court found the government had a constitutional duty to allocate Climate Fund resources.   Operationalizing the Climate Fund is not a matter of free political choice, but a duty. Para. 27.

Based on Law 101/2000 (Fiscal Responsibility Law), the court also found that the Climate Fund’s resources cannot be restrained, as they have a specific destination, provided by law and that they fulfill the constitutional duty. Para. 30.

The Court, by majority vote (10 of 11 Justices), upheld the action to: (1) recognize the Union’s omission due to the failure to fully allocate the Climate Fund resources for 2019; (2) determine that the Union refrain from omitting to make the Climate Fund work or to allocate its resources; and (3) prohibit the restrictions  of revenues that make up the Fund, establishing the following thesis of judgment:

The Executive Branch has the constitutional duty to make the Climate Fund’s resources work and allocate them annually, for purposes of mitigating climate change, its restraint being prohibited, due to the constitutional duty to protect the environment (CF, art. 225), of international rights and commitments undertaken by Brazil (CF, art. 5, par. 2), as well as of the constitutional principle of separation of powers (CF, art. 2 c/c art. 9, par. 2, LRF).[3]

Para. 37

[1] Unofficial translation of “a Constituição reconhece o caráter supralegal dos tratados internacionais sobre direitos humanos de que o Brasil faz parte, nos termos do seu art. 5º, § 2º. E não há dúvida de que a matéria ambiental se enquadra na hipótese. […] Tratados sobre direito ambiental constituem espécie do gênero tratados de direitos humanos e desfrutam, por essa razão, de status supranacional. Assim, não há uma opção juridicamente válida no sentido de simplesmente omitir-se no combate às mudanças climáticas”.

[2] Unofficial translation of “se diminui o nível de proteção do meio ambiente por meio da inação ou se suprimem políticas públicas relevantes sem a devida substituição por outras igualmente adequadas”.

[3] Unofficial translation of “O Poder Executivo tem o dever constitucional de fazer funcionar e alocar anualmente os recursos do Fundo Clima, para fins de mitigação das mudanças climáticas, estando vedado seu contingenciamento, em razão do dever constitucional de tutela ao meio ambiente (CF, art. 225), de direitos e compromissos internacionais assumidos pelo Brasil (CF, art. 5º, par. 2º), bem como do princípio constitucional da separação dos poderes (CF, art. 2º c/c art. 9º, par. 2º, LRF).