In a previous blog post that can be read here, we provided an overview on how – for the first time – the Brazilian Supreme Court had trial sessions scheduled in connection with several climate litigation cases, starting on 30 March 2022, covering ADIs (Ação Direta de Inconstitucionalidade), ADOs (Ação Direta de Inconstitucionalidade por Omissão) and ADPFs (Ação de Descumprimento de Preceito Fundamental), all of which are types of lawsuits that seek to address Constitutional violations. Two months later, five lawsuits of the so-called Supreme Court's "green agenda" have gone through trial and three have been ruled on.
The series of trial sessions began with the joint trial of cases no. ADPF 760 and ADO 54, which argued against the Brazilian Federal Government's inaction in relation to combating deforestation in the Amazon. Of note was the opinion of Justice Carmen Lucia, in which she declared that Brazil finds itself in an unconstitutional state of affairs in environmental matters. Despite the potential repercussions of such opinion, the trial was suspended with no rescheduling to date, as Justice André Mendonça requested to examine both cases.
On 28 April, the Supreme Court issued the first decisions of the "green agenda". In case no. ADI 651, three decrees of the Federal Government were suspended, so that civil society and state governors could be reinserted in the governance of the National Environmental Fund (Decrees No. 10.224/2020, 10.239/2020 and 10.223/2020). Justice Carmen Lucia argued that restricting the participation of relevant stakeholders in the governance of the fund violated the federative pact and participatory democracy.
In the same 28 April session, the Supreme Court ruled the case no. ADI 6808, filed against an amendment of Federal Law No. 11.598/2017 that introduced provisions allowing licenses and permits in general to be issued automatically in certain circumstances. The Supreme Court ruled that such automatic issuance is not applicable to licenses and permits of an environmental nature, as per Constitutional provisions that state environmental licensing is mandatory and cannot be waivered.
The ruling of case no. ADI 6148 took place on 5 May and was somewhat controversial. After lengthy deliberations by the Justices, the case was dismissed and Resolution No. 491/2018 of the National Environmental Council (CONAMA), which establishes air quality standards, was declared "still constitutional" – which was the point of disagreement. However, the Supreme Court determined that CONAMA should issue a new resolution on the matter within 24 months. Once, and if, the 24-month deadline has elapsed without the issuance of a new resolution, the standards set forth by the World Health Organization – which are more stringent than those set forth by the CONAMA Resolution – shall be in force while the omission persists.
The Supreme Court is yet to review cases no. ADPF 735, which requests the court to annul a Federal Decree that allowed the use of military forces in environmental inspections, and ADO 59, which seeks to reactivate the Amazon Fund. However, even though there are no new trial sessions scheduled to date, these trials have already caused great repercussions and may lead to additional climate litigation precedents, particularly against companies, as we have already discussed in previous blog posts (which can be read here and here).
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