Case Name: Observatório do Clima vs. Ministério do Meio Ambiente e União Federal (Update of the National Plan on Climate Change)

Summary

This is a Public Civil Action (ACP) filed by the Climate Observatory organization against the Ministry of the Environment (MMA) and the Federal Government, aiming to compel the federal government to present an updated version of the National Climate Change Plan, in a consistent and detailed manner, in accordance with Article 225 of the Federal Constitution, the National Policy on Climate Change – PNMC (Federal Law 12.187/2009), the National Environmental Policy – PNMA (Federal Law 6.938/1981), and the Paris Agreement (promulgated by Federal Decree 9.073/2017). The plaintiff organization uses the AR6 report on climate change from the Intergovernmental Panel on Climate Change (IPCC) as a scientific basis to highlight the urgency of climate change and the need for more ambitious measures. It emphasizes environmental setbacks observed within the current federal government in various economic sectors and in the national environmental and climate protection system. The document highlights the contribution of increased deforestation, especially in the Amazon, to national greenhouse gas (GHG) emissions. Furthermore, it mentions eight foreign climate litigation cases to demonstrate the importance of the Judiciary in combating the climate crisis. Finally, it requests, among other things, that the Ministry of the Environment (MMA) and the Federal Government be ordered to present an updated version of the National Climate Change Plan that reflects the urgent need to reduce GHG emissions, considering the principle of citizen participation in all phases of its development. The Federal Government filed a response, arguing that the case is in abeyance with Public Action (APop) 5008035-37.2021.4.03.6100, which addresses the "climate manipulation" (Paulo Ricardo de Brito Santos and others vs. Ricardo Salles, Ernesto Araújo, and the Federal Government), as it deals with matters raised in this Public Action. The defendant rejected the claim of state inaction, highlighting the enactment of Decree 9.578/2018, related to the National Climate Change Fund, and Brazil's adherence to the Paris Agreement, followed by its ratification. It stated that Brazil's nationally determined contribution (NDC) corresponds to the National Climate Change Plan. It defended the absence of illegality or unconstitutionality in the actions of the Public Authority. It emphasized that Brazil's NDC is in line with the Paris Agreement and international best practices. Finally, it requested: (i) the dismissal of the case without prejudice, due to lis pendens or lack of procedural interest, or (ii), subsidiarily, recognition of the connection with the APop; and (iii), on the merits, the dismissal of the plaintiff's claim. The Climate Observatory filed a reply to the allegations of the Federal Union, stating that there is no lis pendens or connection between the present action and the APop, as they deal with different objects and requests. The court issued an interlocutory decision rejecting the preliminary objections of lis pendens and connection between the actions. Among its grounds, it held that: (i) the claim in the present action is supported by domestic law, the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and its respective regulatory decree, while the APop addresses matters of public international law, embodied in the Brazilian NDC; (ii) the claims in the actions are distinct; (iii) there is independence between the domestic and foreign spheres regarding climate change, and thus the Brazilian State can establish less stringent commitments in the international sphere and enact more robust norms and policies domestically; and (iv) the PNMC has a regulatory and political architecture that establishes instruments that can be instituted by a national plan to fulfill the objectives of the law, unlike the NDC. Following the decision, the Federal Union filed an interlocutory appeal (AI 1032447-87.2022.4.01.0000).

The parties requested the suspension of the proceedings for a period of 6 months, or until either party files a petition in the case, so that the preparation of the Climate Plan can be completed.

The process was suspended by agreement of the parties.

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Main norms mobilized

• Article 225 of the Federal Constitution (CRFB/88)
• Article 5th of the Federal Constitution (CRFB/88)
• Federal Constitution (CRFB/88)
• National Environment Policy Act - PNMA (Federal Law 6.938/1981)
• National Policy on Climate Change Act - PNMC (Federal Law 12.187/2009)
• Paris Agreement (Federal Decree 9.073/2017)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

Case timeline

Case documents