Introduction
The Amazon rainforest is without a doubt the world’s biggest ecological environment, having around 60% of its territory in Brazil (6,7 million k2) and the rest being distributed among other countries such as Peru, Bolivia, Ecuador, Colombia and Venezuela. According to the Chico Mendes Institute of Biodiversity Conservation (ICMBio), the Amazon holds over 40 thousand species of plants, 300 species of mammals, 1.3 thousand species of birds and 3 thousand species of fish, all unique to the environment itself. Not to mention its indigenous population, being 180 recorded and still many isolated tribes, all with their specific languages, customs and relationship with the environment.
Nonetheless, its importance is mostly attributed to its influence on the climate. Being called many times as ‘the lungs of the world’, the Amazon retains over 120 billion tons of carbon in the form of biomass (RCGI / USP). It cannot be comparable to the amount of carbon being retained by phytoplankton in the ocean, but it still of great significance. Besides that, due to its enormous quantity of trees, the Amazon is responsible for gigantic amounts of water cycles being released in the form of vapor in the atmosphere, the so called ‘flying rivers’. These enormous clouds are then shifted to other parts of the continent, bringing water and humidity to what would be arid waist lands without them. It is in this scenario that the general public can see the Amazon’s importance, not just for its biodiversity or its native tribes, but for its part in the balance of the climate of the whole south American continent.
1. Litigation the protectino of the Amazon Rainforest
However, the Amazon is currently under great risk. According to the Brazilian National Institute for Spacial Research (INPE), it is estimated that around 17% of the forest’s territory has already been deforested. The majority of this deforestation is directly related to the expansion of the Brazilian agricultural business, devastating hundreds of acres of land reserved for plantations of monocultures, such as soy, and the production of cattle. Besides that, some of the devastation can also be attributed to illegal mining and lumbering. Not to mention the methods used for the deforestation, many times permanently scarring the land, such as strategical fires and uncontrolled cutting of trees[1]. Yet, going in accordance to the idea of the ‘super wicked problem’ of climate change, despite its size and wealth, Brazil is still a developing country marked by inequality and poverty, being agro-business one of its major sources of income (52.2% of exports). Therefore, it is unlikely that these activities are ceased completely. In this difficult scenario, can a more severe environmental control or even climate litigation be of any help for the Amazon rainforest?
On one hand, the importance of environmental control is clear. That is, there needs to be some sort of groundwork or basis for what is considered harmful or adequate in the environmental scale. Treaties such as the United Nation Framework Convention on Climate Change (UNFCCC) in 1992, the Kyoto Protocol in 1997 and the Paris Agreement in 2015 are fundamental in this concept. These treaties bind a series of countries, including Brazil, to what is considered internationally as policies that would maintain a kind of balance in regards to climate change. It is in this scenario that nationally determined contributions (NDCs)[2] come into play, being the procedures that each country has to take. However, despite their importance, states have not been particularly effective in implementing these policies themselves and the rise in temperature is still growing[3].
On the other hand, climate litigation is evidently becoming more and more popular and effective as a tool for incorporating these constitutional commitments in a practical level. In other words, people are beginning to see that countries and corporations can be held accountable for their harms to the environment in the judiciary system. Cases such as ‘Juliana vs. The United States’ or ‘Urgenda vs. The Netherlands’ serve as examples of how states and corporations can be directly responsible for damages done to the environment. It is in this manner that national and international courts gain another layer of responsibility, making it possible for the public, especially the people that are being directly harmed by climate change and other climate related phenomenon, to effectively do something about it and perhaps even pressure states and corporations. In this regard, two distinct strategies come into play: bestowing an erga omnes character to existing obligations regarding the protection of the environment (obligations strategy), and, more notoriously, treating environment cases in the legal categories of human rights law (rights strategy)[4].
2. The case of the IEA vs. Brazil
The Brazilian population has already made use of litigation to fight deforestation for a long time, but only recently that these attempts have also been grounded on climate cases[5]. A handful of lawsuits have been made in this regard, but one stands out as being strategic. It is the case of the ‘Institute of Amazonian Studies (IEA) vs. Brazil’ in 2020, which seeks not only to make Brazil comply to its own climate laws, but to actually attain a constitutional recognition of a fundamental right to a stable climate. This event goes in accordance to other rights strategy climate litigation cases worldwide, showing that it is in fact a transnational movement[6].
The case in question revolves around the dramatic and sharp surge in deforestation incidents in 2018 and the lack of commitment of the Brazilian government to their particular NDC, which made various NGOs, specifically the Institute of Amazonian Studies (IEA), concerned. In two years of preparation for the case, the IEA made sure not to base the action purely on existing environmental law. This is due to the belief that the currently existing jurisdiction do not provide sufficient protection to the risks of dangerous climate change[7]. In 2020 the case is filed, stating initially that the Federal Government of Brazil was unable to fulfill its own plans to prevent deforestation and GHG emissions, specifically citing the unfinished four step plan called National Climate Change Policy Act (PPCDAm). By failing to meet their own criteria and goals, the IEA asserts that the government is violating national law itself, and requests that the government complies to the plan, as well as to reforest large amounts of area and to use the necessary budget to do so.
However, as previously stated, the innovation that comes with the circumstance at hand is that it seeks constitutional recognition of a fundamental right to a stable climate. This pursuit is based upon three distinct arguments. First of all, it is indicated that there is a legal tradition that focuses specifically on the collective dimension of fundamental rights and collective interests. That is, besides the already foreseen right to an ecological balanced environment in the article 225 of the Brazilian Constitution, there is a legal duty to follow and respect collective rights, specifically environmental rights. Besides that, the IEA implies that the right to a stable climate can already be derived directly from preexisting principles in the Brazilian Constitution, such as dignity of the human person[8], the inviolability of right to life, freedom, equality, security and property[9], the right to health, food and housing[10] and of course the already cited right to an ecological balanced environment. Ultimately, the last argument refers to the urgent need of such a principle, having in mind the magnitude of the global climate crises. In this manner, if a right to a stable climate is not agreed upon and implemented, the consequences in the future may be catastrophic and irreversible.
The case of the IEA vs. Brazil is fundamental in the understanding of more practical and effective climate litigation cases. Rather than relying solely on the global phenomenon of climate change and international treaties, the IEA took advantage of Brazil’s own legal system as well. This way, the case could be easily understood by any court, becoming a more national problem than a possibly more difficult and complex international problem. Not just that, it also shows to the public that, with the right arguments, research and legal basis, basically anyone can make a case and possibly make a difference through climate litigation.
Conclusion
Although climate litigation can in fact be applied to the Amazon rainforest, only very few cases have been instituted with respect to Brazil, in comparison with other countries. This is due to a series of factors, such as the deficiency of worried but also competent parties, economic dependence on the agribusiness and or course a general lack of information of the overall public in regards to the actual well state of the Amazon and climate litigation cases. Yet, the situation is progressively changing. All 17 recorded cases of climate litigation in Brazil were instituted in 2020 and 2021 alone, showing that is still a fairly recent improvement in Brazil’s legal system.
Perhaps a more concrete way to increase climate litigation cases is to educate and enable the many indigenous tribes about the topic. These are the people that are the most effected by the deforestation and climate irregularities, many of them being directly dependent on the forest for their own survival. Several tribes already fight back the deforestation, but with little numbers and absence of government support, the fight is extremely difficult. Given the legitimacy to their claims, it is fair to assume that if they had the legal capacity to do so, the number of climate litigation cases would surely increase.
It is evident that climate litigation can be a great tool to fight back deforestation. It would be best if the government enforced its own commitments, but the repercussions of climate litigation can be a great way to pressure that. Sadly, there are still a percentage of people that do not consider the instance of the Amazon rainforest as a concrete threat, as the deforestation does not directly affect them. Nonetheless, even if the consequences are not clear now, they can be tremendously severe in a near future. Still, there needs to be a solid groundwork of research, international treaties and national legislation to do so. Fortunately, Brazil has all of the above, and many believe that a more stable environment and climate can in fact be achieved. There is a worldwide movement to better handle the environment, and the Amazon is no exception.
References:
[1] The rotten apples of Brazil’s agribusiness (Raoni Rajão, Britaldo Soares-Filho, Felipe Nunes, Jan Börner, Lilian Machado, Débora Assis, Amanda Oliveira, Luis Pinto, Vivian Ribeiro, Lisa Rausch, Holly Gibbs, Danilo Figueira.
[2] Meguro, Maiko (Litigating climate change though international law: Obligations Strategy and rights strategy).
[3] Maljean-Dubois, Sandrine (Climate Change Litigation).
[4] Meguro, Maiko (Litigating climate change though international law: Obligations Strategy and rights strategy).
[5] Setzer, Joana; Winter de Carvalho, Délton (Climate litigation to protect the Brazilian Amazon: Establishing a constitutional right to stable climate).
[6]Ibid.
[7]Ibid.
[8] Constituição Federal de 1988 artigo 1º.
[9] Constituição Federal de 1988 artigo 5º.
[10] Constituição Federal de 1988 artigo 6º.