CLIMATE LITIGATION AND THE ROLE OF CONSTITUTIONAL COURTS
THE COURTS CAN ACT AS CONNECTORS TO STIMULATE CLIMATE AMBITION THROUGH LEGAL ACTION.
Brazil’s German Embassy and iCS - Institute for Climate and Society held the panel "2021 Dialogues for a Sustainable Future - Climate Litigation and the Role of Constitutional Courts" yesterday, August 10th. During the event, we discussed ways in which federal courts and tribunals have performed and can still work towards fulfilling the mission of protecting the environment and complying with international agreements. The IPCC report released on Monday, August 9th, introduced findings that pose huge challenges towards fighting climate change, which require countries to take legal action.
Caio Borges, iCS coordinator of the Law and Climate Portfolio, mediated the panel. The event featured Gabriele Britz, Justice at Germany’s Federal Constitutional Court; César Rodríguez Garavito, lawyer and professor at New York University; André de Carvalho Ramos, professor at University of São Paulo’s Law School. Marcelo Rocha, education, Blackness and climate change activist at Fridays For Future Brasil and FFF MAPA was the first speaker in the session.
Justice Gabriele Britz shared concerns of the German court as regards current laws that allow emissions until 2030. Such legislation rules that, from 2030 on, emissions must be drastically reduced, which could limit people’s freedom. In the future, it is highly likely that technology will allow for reduction of gases in the atmosphere. However, one cannot rely on this probable outcome. "The path to CO2 reduction must be taken in a timely manner so that development and processes of implementation can unfold accordingly. We need pressure for development but also some planning security."
César Rodrigues Garavito highlighted the understanding that environmental protection does not prevent economic growth and underpinned the role courts play in fighting climate change. "It is important to bear in mind that Climate litigation is no barrier to country development. Rather, Climate litigation means establishing a dialogue, taking action to stimulate commitment. When taking the Paris Agreement and the international community into account, we must be mindful of how governments and countries will actually comply with commitments previously established. Therefore, courts can act as connectors by encouraging juridical and legal action."
Professor André de Carvalho Ramos provided an overview of the fight against climate change in Brazil. According to Professor Ramos, since Jair Bolsonaro, Brazil’s incumbent president, took office, the environmental sector has seen investments dry up. "There are several examples of less action by the federal government as regards the environmental sector. Thus, the future of litigation on environmental law must also address the desire of most Brazilian Congress members to limit social and environmental spending. On the one hand, the Supreme Court should decide whether the lack of resources is a justification for not protecting the environment at the expense of the constitutional stress caused by the constitutionalization of state spending limit. On the other hand, the permanent existence of rights require states to fullfil positive obligations".
Experts discussed the role of courts in fighting climate change
_The new IPCC report, released on Monday, August 9th, introduces highly important and dramatic information on the current climate change scenario and will likely have an impact on the global climate litigation scenario.
_When taking the Paris Agreement and the international community into account, we must be mindful of how governments will actually comply with commitments previously established.
_Courts may act as connectors to foster climate ambition through juridical and legal action.
_Brazil’s Federal Supreme Court has been stimulated to respond actively. Considering that it has attributions against the majority, it is able to prevent recent setbacks in public policies, which have been designed to protect the environment. Morevoer, Brazil’s Supreme Court can make sure Brazil’s environmental regulatory system is protected.
_ Since 2016, when constitutional amendment 95 was enacted, Brazil has been facing the challenge of constitutionalization of government spending limit. It is also known as the limit amendment, which has established that there would be no expansion in public spending for 20 years, except for increases based on inflation rates.
_Currently, Brazil’s federal government is making budget cuts in the environmental sector. Considering the urgency of this issue, the environmental litigation sector must face the limit imposed on social and environmental spending. Also, Brazil’s Federal Supreme Court must decide whether the lack of funds is an excuse not to protect the environment.
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