PSB et al v. Brazil (on Climate Fund) (ADPF 708)
Four political parties – Workers Party (PT), Socialism and Liberty Party (PSOL), Brazilian Socialist Party (PSB), and Sustainability Network (Rede)– sued the Brazilian government for violations of its constitutional and international obligations in regards to environmental protection. The Plaintiffs specifically alleged that the Jair Bolsonaro administration had failed to allocate and disburse funds from the Climate Fund in 2019.
The Climate Fund was established in 2009 as the financial instrument of the National Climate Policy Plan of Brazil. The Climate Fund’s mandate is to direct its annually authorized budget to projects and studies working towards climate mitigation and adaptation measures. The Climate Fund was inoperative in 2019.Annual plans had not been prepared, and money had not been disbursed to support projects that mitigate climate change.
Plaintiffs argued that the failure to utilize the Climate Fund in 2019 violated Article 225 of the Federal Constitution, a provision which expressly establishes the right to the ecologically balanced environment and enforces said right by imposing on the Public Power the duty to defend, preserve, and restore it. In light of this alleged violation, plaintiffs sought declaratory judgment recognizing the “unconstitutional omission” and an injunction compelling the government to reactivate the climate fund.
The government argued that there was no constitutional question in this case because (a) the Federal Constitution does not explicitly mandate the creation of a climate fund and (b) the climate fund derives its authority from international and multilateral treaties which are not Brazilian law and thus not binding on the government. Second, the government argued that this case– and the Supreme Federal Tribunal’s decision to issue a ruling on it– violate the separation of powers doctrine as an overstep of the judiciary on the role of the executive branch. Specifically, the government argued that the subject matter of this case– management of funds– was the exclusive prerogative of the executive.
In a majority opinion (with only one dissent), the Court held that the Executive Branch has a duty to allocate funds to the Climate Fund based on the constitutional right to a healthy environment:
“operationalizing the Climate Fund is not a matter of free political choice, but a duty.” The court recognized the climate fund as the main tool available to cut Brazil’s emissions. As such, the non-usage of the Climate Fund was a breach of the constitution “by omission,” since the constitution requires the state to protect the environment for current and future generations.
In response to the Government’s argument of violation of separation of powers, the Court found that this was not an overstep, as there was already existing legislation advancing the constitutional right to a healthy environment. The Court found that the “judiciary is under a duty to act to avoid the regression of this constitutional protection.” Since the Court was not creating legislation, but rather simply enforcing existing legislation, this did not constitute a federalism concern.
In response to the source of authority for the Climate Fund, the Court rejected the government’s arguments about its non-binding nature. First, the court recognized environmental law treatises as falling within human rights treaties more broadly. Second, the Court assigned supralegality to human rights treatises, including in this the 2016 Paris Agreement. As such, the Court attributed to the Paris Agreement a hierarchical position superior to the non-constitutional legal norms, recognizing its “supralegal” character. This denomination means, as Maria Antonia Tigre explains, that “any Brazilian law or decree that contradicts the Paris Agreement, including the nationally determined contribution, may be invalidated. Any action or omission contrary to this protection is a direct violation of the Constitution and human rights.”
The Court ordered the Federal Administration not to neglect the Climate Fund again and determined that the resources from the Climate Fund cannot be withheld.
The ADFP 708 case was the first time that Brazil’s highest court addressed the issue of climate change. Brazil was regressing in its environmental protection responsibilities and duties under the Bolsonaro administration. For instance, through the 2019 and 2020 illegal burning and rapid deforestation were devastating the Brazilian Amazon. With Brazil one of the seven largest greenhouse gas emitters in the world, this case is monumental for the country and for the protection of the environment more broadly.
Additionally, the Brazilian Supreme Federal Tribunal has various environmental protection cases on its docket. Thus, the new interpretation of the Paris Agreement and the reaffirmed constitutional safeguards on the right to environmental protection should mean more positive outcomes on climate-related cases, setting a positive precedent for the country’s environmental protection efforts.
Finally, as Maria Antonia Tigre suggests, the court’s acknowledgement of the Paris Agreement as a human rights treaty is unprecedented and respects the wishes of civil society organizations during the negotiations of the 2016 treaty. As she writes, “human rights organizations had been unhappy with the final text of the Paris Agreement, which relegated explicit mention of human rights to the preamble… so having a constitutional court qualifying the Paris Agreement as a human rights treaty may spur a global movement for the courts to follow suit in that recognition.”