Brazilian Climate Litigation Platform
Type of Action
Direct Action of Unconstitutionality by Omission (ADO)
Court of origin
Federal Supreme Court of Brazil (STF)
Filing Date
06/2020
Original case number
59
State of origin
Distrito Federal (DF)
Link to court of origin’s consultation website
http://portal.stf.jus.brSummary
This is a Direct Action of Unconstitutionality by Omission (ADO), with a request for a precautionary measure, filed by the political parties PSB, PSOL, PT, and Rede, which questions the unconstitutional omission of the Federal Government in paralyzing the Amazon Fund. The Fund was authorized by Decree 6,527/2008 and aims to promote projects to combat deforestation and conserve the natural resources of the Legal Amazon. It is argued that the Fund represents the main economic instrument for the protection of the Amazon Rainforest, having been created as an initiative to finance actions for Reducing Emissions from Deforestation and Forest Degradation (REDD+), within the framework of the United Nations Framework Convention on Climate Change – UNFCCC (promulgated by Decree 2,652/1998), aiming at reducing greenhouse gas (GHG) emissions from this sector. It is alleged that the Fund's operations were paralyzed from 2019 onwards due to changes in its governance and transparency mechanisms, through the extinction of the Technical Committee and the Steering Committee, as determined in Decrees 10.144/2019 and 10.223/2020, respectively. This restructuring resulted in the refusal of new deposits by the Fund's main donors, the governments of Norway and Germany. The applicants, however, point to the existence of approximately R$ 1.5 billion available for new projects and question the non-application of these resources. They believe this constitutes an unconstitutional omission in the protection of the forest, especially considering the scenario of increased deforestation and fires in the Amazon. They argue that this scenario is contrary to the Fund's objectives of financing actions to combat deforestation and preserve forests as a way to mitigate climate change. Thus, they request that the Federal Government (i) take the necessary administrative measures to reactivate the Amazon Fund, (ii) transfer financial resources to projects already approved, (iii) evaluate projects in the consultation or analysis phases, and (iv) conduct regular evaluations of new projects that may be submitted, in accordance with the federal pact and fundamental rights related to an ecologically balanced environment.
There was a unilateral decision by the Reporting Justice Rosa Weber, who convened a public hearing to gather information regarding the factual context behind the constitutional issue raised and to allow for the comparison of argumentative approaches and the data included in the case file. The public hearing was held, raising discussions about planning and oversight actions in the Legal Amazon and official data, with the participation of ministries and federal environmental agencies, representatives of the states that comprise the Legal Amazon, and academics.
The court, by majority vote, following the opinion of the Reporting Justice Rosa Weber, partially upheld the action, ordering the Federal Government to take measures to reactivate the Amazon Fund within sixty days and to refrain from taking any omissions that paralyze the Fund's operation. The court declared the decrees that altered the Fund's governance and prevented the financing of new projects unconstitutional, ordering the resumption of the previous model. The paralysis of the Amazon Fund was considered an unconstitutional omission by the federal government and an offense against the principle of non-regression. The ruling highlighted that environmental preservation, especially of the Amazon, is an obligation imposed by the Federal Constitution and various international regulations – particularly protection against deforestation and climate change – to which the Public Power is bound, reducing the scope for discretion. It argued that there is an unconstitutional state of affairs in the Legal Amazon and a disruptive and unstructured normative state regarding environmental matters in the region.
Plaintiff
Type of plaintiff
Defendant
Type of defendant
Main norms mobilized
Brazilian biomes
Amazon (tropical forest)Greenhouse Gas (GHG) emission sectors
Land Use Change and ForestryStatus
Completed
Type of action
Systemic
Climate in environmental licensing
Non-mentioned
Environmental and/or climate justice approach
Non-existent
Claim alignment with climate protection
Favorable
Measures Addressed
Climate approach
Main issue or one of the main issues
Document type
Appellate Court Decision
Origin
Supremo Tribunal Federal (STF)
Date
08/2023
Brief description
The Court, by majority, acknowledged the ADO and partially upheld the action, ordering the Union to take steps to reactivate the Amazon Fund within sixty days and to refrain from any omissions that would paralyze the Fund's operations. The Court declared the unconstitutionality of the decrees that changed the Fund's governance and prevented the financing of new projects, and that the previous model should be restored.
Document type
Decision of a single judge
Origin
Supremo Tribunal Federal (STF)
Date
08/2020
Brief description
Monocratic decision, issued by Rapporteur Justice Rosa Weber, which calls for a public hearing to gather information regarding the factual context behind the constitutional problem and to enable the contrast of argumentative approaches and the data gathered in the process.
Document type
Complaint
Origin
Partido Socialista Brasileiro (PSB); Partido Socialismo e Liberdade (PSOL); Partido dos Trabalhadores (PT); e Rede Sustentabilidade (Rede)
Date
06/2020
Brief description
It is requested that the Federal Union take the necessary administrative measures to reactivate the Amazon Fund and allocate existing resources to projects that aim to prevent deforestation and environmental degradation in the Amazon.