Nome do Caso: ADPF 708 (Fundo Clima)

Resumo

The lawsuit was filed as a Direct Action of Unconstitutionality by Omission (ADO 60), with a request for a precautionary measure, by the political parties PSB, PSOL, PT and Rede; and later converted into an Allegation of Non-Compliance with a Fundamental Precept (ADPF) 708 by the Rapporteur Justice Luís Roberto Barroso. The lawsuit questions the unconstitutional omission of the Federal Government in relation to the application of resources from the Climate Fund, one of the instruments of the National Policy on Climate Change - PNMC (Federal Law 2.187/2009), aimed at directly and indirectly financing actions to combat climate change. The plaintiffs allege that the Climate Fund's management was compromised and operations were paralyzed as of 2019, as the resources authorized in the budget law were not applied and the Annual Plan for Application of Fund Resources was not presented. They argue that the dismantling of environmental policies by the current federal government, in addition to the failure to apply resources from the Climate Fund, contributes to an increase in greenhouse gas (GHG) emissions in Brazil and, consequently, to the failure to comply with climate goals and existing national policies and international commitments. Finally, they request that the Federal Government take the necessary administrative measures to reactivate the operation of the Climate Fund, in compliance with the federative pact and fundamental rights related to an ecologically balanced environment. There was a single-judge decision by the Rapporteur Minister Luís Roberto Barroso, who addressed the possible existence of an "unconstitutional state of affairs in environmental matters" and called for a public hearing to produce a "final report" on the subject. The public hearing discussed the functioning of the Climate Fund and public policies in environmental matters with the participation of members of the government, organized civil society, business sectors and academia. Subsequently, the parties filed a petition requesting provisional relief to suspend financing for the “Lixão Zero” project by the Climate Fund, which received the entire amount earmarked for 2020 in the Fund’s non-reimbursable resources. The parties claimed that the project was not related to the main guidelines of the PNMC and questioned its effectiveness in combating climate change. In a single-judge decision, the Rapporteur Justice denied the preliminary relief requested because he understood that the questioning would deal with a concrete and specific issue, unrelated to the discussion of the case, to be articulated by a separate action. The case has several amici curiae, such as the Alana Institute. The organization, which aims to guarantee the quality of life of children, brought the discussion on climate justice to the Court in order to highlight that, due to their condition of vulnerability and development, children suffer disproportionately from the negative impacts of the environmental crisis, especially climate change. The court, by majority vote, following the vote of Rapporteur Justice Luís Roberto Barroso, ruled in favor of the action. It acknowledged the Union's omission, embodied in the non-allocation of resources from the Climate Fund for the year 2019, determining that the entity should not fail to operate the Fund or allocate its resources, and also affirming the impossibility of contingency of its resources. At the time, it established a thesis that mentions the constitutional duty of the Executive Branch to operate the Climate Fund, based on the constitutional duty to protect the environment and international commitments assumed by Brazil. It also equated international environmental treaties, such as the Paris Agreement, to human rights treaties, having supralegal status in the Brazilian legal system. In this line, it highlighted the existence of a constitutional, supralegal and legal duty of the Union and elected representatives to combat climate change, which is therefore binding.

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Principais recursos

Não se aplica

Principais normas mobilizadas

• Constituição da República Federativa do Brasil de 1988 (CRFB/88)
• Art. 225 da Constituição da República Federativa do Brasil de 1988 (CRFB/88)
• Política Nacional sobre Mudança do Clima - PNMC (Lei Federal 12.187/2009)
• Acordo de Paris (Decreto Federal 9.073/2017)

Timeline do Caso

Documentos do Caso