The Future of Climate Litigation in Brazil

Abstract

The Amazon rainforest, the largest forest in the world which surpasses an area of 5,500,000 km² (and an average drainage basin of 7,000,000 km²) and is home to a diverse and rich ecosystem is shared by Brazil with several South American countries, viz., Bolivia, Colombia, Ecuador, French Guiana, Guiana, Peru, Suriname and Venezuela. Since almost 60% of Amazon rainforest is within Brazilian borders, it is surprising that to date no climate cases related to Amazon deforestation have been judged. Approximately 17% of this biome has been lost due to logging, fires, illegal mining and the growing agricultural belt—from the State of Mato Grosso reaching the State of Amazonas—but only three cases concerning climate litigation have been presented before the Federal Supreme Court (in Portuguese “Supremo Tribunal Federal”), all of which are awaiting judgment: Allegation of Non-Compliance with a Fundamental Precept n° 708 (in Portuguese “ADPF”), also known as the Climate Fund Case; Direct Complaint of Unconstitutionality by Omission n° 59 (in Portuguese “ADO”), also known as the Amazon Fund Case; and the ADPF n° 760, also known as the Plan for Prevention and Control of Deforestation in the Amazon. Considering that 13,200 km² was deforested between 2020 and 2021, the main question is why is it taking so long for Brazil to take more extreme measures towards environmental protection? Can climate litigation thrive in a country that has neglected its environment for so long? Therefore, the main purpose of this chapter is to address the future of climate litigation in Brazil, seeking to understand why Brazil is currently behind other countries in terms of sustainable development and environmental protection and why there is no environmental court within the country. Furthermore, this chapter aims to analyse the effectiveness of Article 225 of the Brazilian Constitution, which foresees environmental protection as a duty of the government as well as of its people—who can exercise this duty and right mainly through actio popularis—and to analyse the influence of the decisions issued by the Inter-American Court on the movement of climate litigation in the country, such as the Lhaka Honhat Case v. Argentina and the Advisory Opinion 23/2017.