DESCARBONIZAÇÃO DE TRANSPORTES
CLIMATE & LITIGATION
USE OF JUDICIAL INSTRUMENTS CEMENTED AS AN INTERNATIONAL TENDENCY TO DEMAND ANSWERS IN THE FACE OF CLIMATE CRISIS
In the follow-up to the series “Dialogues for a Sustainable Future”, a partnership between the Instituto Clima e Sociedade (iCS) and the German Embassy in Brasília, both Brazilian and international specialists gathered in the Brazilian capital, on the 9th of May, to discuss new perspectives regarding Climate and Law.
According to a study made by the Sabin Center, there have been more than 1000 examples of climate litigation across the world. In Ana Toni’s opinion, who’s the executive director of the Instituto Clima e Sociedade (iCS), the urgency of this theme is made evident in the words of Greta Thunberg, the young leader of the global movement of climate strikes so that her generation and the following have the right to a future. It was also reinforced in the last report of the Intergovernmental Panel on Climate Change (IPCC), which was adamant in informing that we have a mere 12 years to reduce the emission of greenhouse gases by half if a dangerous climatic change is to be avoided.
“It’s not about judicializing the discussion of climate change, but litigation can help Brazil avoid setbacks, like reassuring consistency between commitments, laws and actually implementing them.”
Institute for Climate and Society (iCS)
Herman Benjamin | Ministro do STJ
Lutz Morgenstern, first secretary for environmental matters from the German Embassy in Brazil, reminded that this is still a forefront theme that challenges different areas of study, thus reinforcing the importance of discussing it.
“Climate litigation is a new phenomenon that can already be observed in many countries around the world. Citizens sue the State for lack of ambition in taking action against climate change. The judicial actions against companies are also on the rise. What does this phenomenon mean for the judicial system, for democracy, for the courtroom? Litigation is a theme to be discussed now.”
First secretary for environmental matters from the German Embassy in Brazil
Federal judge Gabriel Wedy cautioned that the objective of climate litigation is to urge federal states not to omit themselves, to compel them to action to avoid the emission of greenhouse gases and adopt preventive measures, to encourage private-owned companies to repair damage caused by these emissions.
“Nowadays, 76% of climate litigation happens in the United States. Brazil has started on the development of a new doctrine on the subject with two works published recently. This will still demand that those who administer the Law keep working and researching the subject.”
Killian Doherty, Associate Lawyer in the Environmental Law Alliance Worldwide (ELAW) outlined cases of Climate Litigation across the world. The panelist brought the most emblematic cases involving climate and rights like the one in the Philippines, in which fishermen sued Chevron; New York versus Exxon for climatic injuries, actions in Latin America and in the African continent.
“Cases of climate litigation are growing everywhere in different jurisdictions. Unless the government and corporations change their behavior, and soon, the judiciary system will be an element frequently present when dealing with these issues.”
Associate Lawyer in Environmental Law Alliance Worldwide (ELAW)
Valentina Rozo, researcher in Dejusticia from Colombia, spoke of the rights of the current and future generations, explaining how a group of young people took the country’s government to court over deforestation. This was initiated in mass-action by children and teenagers aged between 7 and 26, across 16 cities, united in their common interest in the environmental cause.
“We found out that deforestation is responsible for more than 90% of greenhouse gas emissions in Colombia and that it has risen 44% in only one year. In light of this, it’s highly unlikely that the government will fulfill their obligations toward the Paris Agreement to end deforestation by 2020. We have concluded that this omission risks our right to a healthy environment and is a threat to our lives, a right granted in the Colombian constitution, and thus we have made our appeals to the Court.”
Researcher in Dejusticia
Noah Walker-Crawford, Legal Consultant of the Foundation for Sustainability (Stiftung Zukunftsfähigkeit), presented the case of a farmer that sued the RWE, the biggest power generation company in Germany. The company was blamed for its high emissions and the threat to the local community due to inundation risks because of the melting of the ice caps in the Andes.
“In the day of the ruling, the RWE lost more than a million euros in market value in the stock market. Thus, the great investors are starting to pay attention to this theme. We won’t solve climatic issues, but we created an important precedent. This type of litigation is a form of putting pressure on increasing climatic ambition.”
Legal Consultant of the Foundation for Sustainability (Stiftung Zukunftsfähigkeit)
Ellie Mulholland, director of the Commonwealth Climate and Law Initiative (CCLI), in United Kingdom, talked about the increasing preoccupation of global investors in relation to the financial implications of climate change. She brought examples of petitions from investors, asking companies with high emissions to spread knowledge about environmental risk. In the case of Exxon, pressured by investors by misleading disclosures in relation to assets that were considered stranded – meaning assets that can’t be explored in scenarios that consider the quantification of the emissions by taxing and/or market mechanisms.
“The companies and investors won’t have a good performance if their investments are sitting below water level. Therefore, the integration of climatic risks in decision making is a matter of trustee duty of the directors of the funds and companies.”
Director of the Commonwealth Climate and Law Initiative (CCLI)
Ana Maria de Oliveira Nusdeo, President of the Instituto “O Direito por um Planeta Verde” (IDPV) and professor at Faculdade de Direito da Universidade de São Paulo (USP) explained several possible scenarios for Climate Litigation in Brazil. She emphasized that the country is experiencing a context of political deconstruction, excessive use of temporary measures and decrees and that this may cause, as a consequence, conflict in legislative competences between government spheres.
“Governmental initiatives that confront the political structure could be taken to the judiciary system. If there’s increase in deforesting scenarios, there may be questioning regarding this fact. State laws can contain objectives and guidelines with a certain degree of greater specificity. It’s important to think it thoroughly.”
Ana Maria de Oliveira Nusdeo
President of the Instituto “O Direito por um Planeta Verde” (IDPV) and professor at Faculdade de Direito da Universidade de São Paulo (USP)
On the same subject, Joana Chiavari, Senior Analyst of Climate Policy Initiative (CPI), talked about one of Brazil’s standing characteristics, the tradition of the so-called “soft law”, based only on general rules.
“We lack clearer rules. In Brazil, a third of deforestation happens in private lands. The forestry code (Código Florestal) brought a new judicial approach with special conditions to landowners, but still lacks true implementation.”
Senior Analyst of Climate Policy Initiative (CPI)
Technology has also been an ally on casting responsibilities for deforestation. Nivio de Freitas, Deputy Attorney General of the Republic of Ministério Público Federal (MPF), put forward the experience of the “Amazônia Protege”. Cross-referencing information of satellites with public data like the Cadastro Ambiental Rural (CAR), the “Amazônia Protege” has already proposed more than 2400 public civil actions and compensations, adding up to about R$4,9 billion.
“We have mapped the precise coordinates of each deforested area starting at about 150 acres. From this information, our system allows us to propose actions, casting responsibilities for the deforestation. Thus, we make the land unavailable for other posterior legislation ends. This information is used by official credit mechanisms, for example. We manage to crack the logic behind economical advantage obtained from deforestation.”
Nivio de Freitas
Attorney General of the Republic of Ministério Público Federal (MPF)
STRATEGIC JUDICIAL ACTIONS
Carlos da Costa e Silva Filho, State Attorney of Rio de Janeiro and associate lawyer in Vieira Rezende Advogados, believes that the biggest challenge is the topic of the causal link related to climate issues.
“Some type of presumption will have to be adopted, the burden of proof to fall to the defendant. What I would like to see as a result of these climate litigation efforts is a chain reaction. Gaining more visibility is the victory we must seek.”
Carlos da Costa e Silva Filho
State Attorney of Rio de Janeiro and associate lawyer in Vieira Rezende Advogados
Pedro Hartung, lawyer and coordinator of the Programa Prioridade Absoluta of Instituto Alana, highlighted the educational role of the strategic judicial instruments. According to him, it’s important to understand how the social transformation occurs.
“Litigation is part of a vast toolbox that has the objective of charting the theory of change and the advocacy strategy. Other strategic actions involving the press, mobilization, campaigns, research and technical evaluation are necessary to reach decision makers and society that will sustain and support a collective decision.”
Lawyer and coordinator of the Programa Prioridade Absoluta of Instituto Alana
Maria Christina Gueorguiev, lawyer in the Pinheiro Neto Advogados office, presented practical cases of Climate Litigation in Brazil. Among them, there are several filed actions by energy corporations that considered themselves affected by a ruling published by Ibama that imposed a compensation of 100% for the emissions made by thermoelectric powerplants. According to the lawyer, the Ministry of Energy pointed out that this ruling would increase in 40% the cost of the annual tax paid by the final consumer.
“What lessons can we learn from this? It’s necessary to avoid non-statutory acts, meaning acts that are not foreseen in the legislation. In these cases, the argument that will always be raised is the principle of legality, because it would be possible to standardize certain issues following the applicable rites as to guarantee the effectiveness of the ruling. Instead, it’s filed away and several years are spent discussing the subject, without reaching the desired goal of environmental protection.”
Maria Christina Gueorguiev
Lawyer in Pinheiro Neto Advogados
Fabio Feldmann, lawyer and former congressman, played a major role in the insertion of environment protection in the Brazilian Constitution, and he argues that climate litigation does not exclude other agendas.
“The environment demands a holistic approach and not everyone understands that. Climate change is a key relevant strategic issue. What we must do is breach the disregard that public authority nurtures toward our themes.”
Lawyer and ex-congressman
In his closing speech for the event, Antonio Herman de Vasconcellos e Benjamin, Minister of the Superior Tribunal de Justiça (Supreme Court), emphasized that the judiciary power only works if provoked. According to him, if there’s no affront to the judiciary power, it remains disconnected from the debate.
“Certain publicity can be gained with public civil action that would usually be denied to a rally of juveniles, for example. The judicialization takes this publicity to a worldly scale, like the many international cases that were presented here today. Thus, it’s legitimate to use judiciary power to grant bigger publicity to an issue that wouldn’t normally receive journalistic and mediatic coverage like a simple public civil action.”
Antonio Herman de Vasconcellos e Benjamin
Minister of the Superior Tribunal de Justiça
Photos: Lorena Monjardim
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