2030 CLIMATE COUNTDOWN
The Amazon Rainforest is an essential ecosystem for a host of reasons, including its role in regulating the global climate system. And, yet, the Amazon Rainforest is at risk of collapse due to deforestation rates that have exploded under the administration of Jair Bolsonaro. Bolsonaro, moreover, paralyzed the administration of a fund – the Amazon Fund – critical to developing and implementing projects and programs aimed precisely at reducing deforestation rates. In 2020, a group of Brazilian political parties, working with NGOs, filed a lawsuit challenging the paralysis of the Amazon Fund as a violation of the constitutional right to an ecologically balanced environment as well as other applicable domestic law. The case is currently pending before the Brazilian Federal Supreme Court.
Jair Bolsonaro, the populist Brazilian leader and former president, rose to power on, among other things, an explicitly anti-environment platform. He promised to dismantle the environmental frameworks and programs that protect Brazil’s vital ecosystems, and when he secured the presidency in 2019, his administration began at breakneck speed to do just that.
The demolition of environmental frameworks, programs, and policies under the Bolsonaro administration has spelled disaster for the Amazon. Deforestation rates have exploded, and the critical region is moving ever closer to a tipping point whereafter swaths of the vibrant rainforest will transform permanently into dry savannah. This would not only be a catastrophe for the region – it would have severe consequences for the entire globe, given the Amazon’s role in regulating the global climate and sequestering greenhouse gases.
“At a time when the environmental issue is at the center of international public debate, in view of the irreversible impact already caused by human destruction of nature, Brazil, guardian of the largest area of the largest and most important tropical rainforest in the world, is dismantling its environmental protection policy and seeing deforestation rates explode in the Amazon.”
In light of this, civil society organizations in Brazil organized to counter Bolsonaro’s anti-environment agenda and save the Amazon. This coalition of NGOs identified the Amazon Fund as a potential leverage point for strengthening environmental protections and advancing action to preserve the Amazon. The Amazon Fund was established in 2008 – in accordance with the constitutional provision (article 23) authorizing the federal government to act to protect the environment and preserve forests, fauna, and flora – to facilitate projects that combat and prevent deforestation in the Amazon and conserve the rainforest as well as its natural resources. Its funds are supplied by voluntary donations, nowadays primarily from the Norwegian and German governments as well as Petrobras.
Prior to Bolsonaro’s rise to power, the Amazon Fund played an important role in facilitating projects and programs that protected the Amazon rainforest and substantially reduced rates of deforestation. Under Bolsonaro’s administration, however, the operation of the Fund came to a complete standstill. Though there are still about 1.5 billion Brazilian reis (approximately 296.6 million U.S. dollars) in the Fund, no funds had been dispersed and no new projects had been assessed or approved. The Fund was, in short, just sitting there while the Amazon burns.
“[T]he [Amazon Fund] is paralyzed, with no project approved in 2019, even though there are projects awaiting technical analysis . . . and even with the exponential increases in deforestation and fires in the region.”
The Amazon Fund case targets the Bolsonaro administration’s willful paralysis of the Fund, aiming to unlock the available funds for forest preservation and protection projects – which are urgently needed to remedy the dangerous rate of deforestation in the Amazon and bring it under control.
Because of the procedural peculiarities around filing a “direct action of unconstitutionality by omission” with the Brazilian Supreme Federal Court, Brazilian NGOs teamed up with several domestic political parties to file the complaint. This means that while the political parties are the named plaintiffs in this case, the NGOs that teamed up with them were the real driving force behind the initiation of the litigation.
Substantively, the plaintiffs argue that the federal government has – without justification and without proposing an alternative – held back funds that are legally supposed to go towards efforts to prevent and combat deforestation in the Amazon and conserve the rainforest. Not only is this inconsistent with the federal government’s obligation to administer the Fund in accordance with established law and policy, it also violates the Brazilian Constitution. More specifically, the federal government’s failure to administer the Fund infringes upon the constitutional right to an ecologically balanced environment, protected under Article 225, due to the threat that current rates of deforestation in the Amazon pose to the integrity of the climate system and given the overall ecological importance of the Amazon. In this way, the complaint marries administrative arguments with rights-based (constitutional) arguments: the federal government’s failure to act (an omission) is unreasonable, unjustified, and irregular and the consequences of the government’s inaction violates the constitutional right to an ecologically balanced environment.
“We must remember that the unconstitutional conduct of the Union in not making available the amounts of the Amazon Fund does not result from a lack of funds, but from a deliberate paralysis, which gives clarity to the constitutional violation . . . The unconstitutionality of the Union’s omission in making the amounts already deposited in the [Amazon Fund] account is also flagrant from the standpoint of the aforementioned article 225. . .of the Federal Constitution, which establishes that the Public Power has the duty to protect and preserve the ecologically balanced environment, essential to a healthy quality of life. In other words, it is the constitutional duty of all spheres to observe this principle, which guides all of their public policies.”
The plaintiffs request a comprehensive remedy, including recognizing both positive and negative obligations on the part of the federal government. Specifically, the plaintiffs have requested that the Court issue an injunction requiring the federal government to take the administrative measures necessary to reactivate the Amazon Fund, transfer funds to projects that have already been approved, evaluate and approve projects targeting deforestation and promoting the conservation of the Amazon, and establish a body consisting of government and civil society representatives to oversee the management of the Fund. The plaintiffs have also asked the Court to order the federal government to refrain from paralyzing the operation of the Fund in the future and abstain from using the Fund’s resources for purposes other than those provided by the regulations and guidelines governing the Fund.
The Amazon Fund case is currently pending before the Brazilian Supreme Federal Court. If successful, it could unlock desperately needed resources to counter the onslaught of destruction in the Amazon and provide a model for groups in other jurisdictions looking to ensure governments are satisfying their climate-related financial obligations. A similar case – the Climate Fund case, which targeted the Brazilian government’s failure to properly administer its Climate Fund – was the subject of a progressive and significant ruling for the plaintiffs by the Supreme Federal Court.
Amount of deforestation in the Brazilian Amazon between August 2020 and July 2021
The approximate amount of Brazilian reis left in the Amazon Fund when it was paralyzed by the Bolsonaro administration
The provision of the Brazilian Constitution guaranteeing the right to an ecologically balanced environment
The percentage of area of the Amazon Rainforest lost over the past 50 years
The plaintiffs in the Amazon Fund case make use of more traditional administrative law arguments – pointing to the ways in which the government’s failure to administer the Fund is unreasonable and unjustified – while also invoking constitutional arguments by characterizing the failure to administer the Fund as a violation of the constitutional right to an ecologically balanced environment. The combination of a more ‘routine’ or ‘traditional’ type of legal argument – the administrative law argument – with a more ‘forward-looking’ or ‘innovative’ type of legal argument – the rights-based constitutional argument – may increase the likelihood that the Court will affirm the more innovative argument or may increase the plaintiffs’ overall chance of success by making their request appear more routine.
“To tell the truth, there is no logic or even the minimum of reasonableness in withholding the amounts from the Amazon Fund in face of such a serious scenario of increase and consolidation of the acceleration of deforestation and destruction of the environment. The only logic behind this picture is the unacceptable emptying of environmental policy. The Fund had been the main economic instrument of environmental policy being applied by the Federal Government aimed at protecting the Amazon Rainforest. With the paralyzing of the contracting of new projects due to the destructuring of the Fund, headed by the Minister of the Environment, the Federal Government is no longer fulfilling its obligations . . . constitutional actions to protect the Amazon Rainforest, all the states in the region and their inhabitants lose, Brazilians lose, and the climate balance loses. In this sense, it is worth pondering that the actions of the Federal Government after January 2019 do not point to the construction of a new financing policy for projects in the region, and that one could claim that it would be within the prerogatives of the Union. On the contrary, it seems that the “policy” being played so far is to destroy what existed before, and which, according to the substantial opinion already cited, was being well developed, without presenting any alternative at all in its place. It is characterized by calculated inaction, by nonpublic policy.”
The plaintiffs put the violation of the constitutional right to an ecologically balanced environment at the heart of their complaint, arguing that the government’s failure to administer the Fund violates this right.