By Eva Souchet
|Law Applied||International Environmental Law; Constitutional Law.|
|Keywords||Brazil;Federal Civil Court;Constitutional Law;International Environmental Law.|
Court(s): 14th Federal Civil Court of Sao Paulo
Dissenting judgement? No
Filing Date: 2021
Last Update: 2021
On 13 April 2021, six young climate activists members of Engajamundo and Fridays For Future Brazil movements filed a class-action lawsuit against Ricardo de Aquino Salles (Minister of the Environment), Ernesto Henrique Fraga Araújo (former Minister of State for Internal Affairs) and the Federal Union .
The climate activists claimed that the Brazilian government violated the Paris Agreement and Brazilian constitution law by presenting a target reduction of its 2020 Nationally Determined Contribution (“NDC”). The claimants argued that through an accounting manoeuvre, the updated NDC will allow the country to emmit between 200 million and 400 million tons of carbon dioxide in excess than proposed in the 2015 NDC . The youth submitted that the 2020 NDC violates the Paris Agreement, the Federal Constitution, the principle of non-regression, and generates incalculable environmental damage.
The claimants sought the granting of an injunction to suspend the effects of Brazil’s 2020 NDC and order the defendants to submit an update of the 2020 NDC, which respects the requirement of progressiveness as stipulated in the Paris Agreement, and that they ensure that the decision-making for this process is participative and includes representatives of civil society .
THE ARGUMENTS OF THE PARTIES
The Plaintiffs’ Arguments:
- The plaintiffs argued that the class action was in line with article 225 of the Brazilian constitution which expressly demands the active and direct involvement of representatives of civil society (collectively) in the protection of the ecologically balanced environment. They advanced that the formal presentation of the updated 2020 National Determined Contribution (“NDC”) contained disguised alterations to the basis for calculating greenhouse gas (GHG) emissions. Consequently, the claimants submit that the updated 2020 NDC generates and will continue to generate damages to the interests of Brazilian society, which has the subjective public right to see its representatives act in a manner aligned with constitutional dictates. In addition, the claimants condemned the manner in which the defendants submitted the NDC “through a subterfuge capable of producing an appearance of normality to the act, when, in reality, they were causing harm to the common good” .
The claimants argued that the NDC raised the emissions calculation base on the 2005 base year, using the Third National Inventory, but maintained the reduction percentages established for 2025 and 2030, reducing, in practice, Brazil’s contribution to achieving the goals and objectives of the Paris Agreement. Changes of methodology for these calculations are recognised as falling within the scope of the United Nations Framework Convention on Climate Change of the Paris Agreement itself  .
- On these grounds, the claimants considered the 2020 NDC update as a manoeuvre, an equivalent of an “accounting trick” which damaged Brazil’s efforts and international reputation to mitigate GHG emissions and the climate crisis. They argued that increases in GHG emissions violate 1) the Paris Agreement, 2) Article 225 of the Federal Constitution , 3) the principle of non-regression of public policies and public morality, as well as generating incalculable environmental damage through the accelerated increase in the planet’s temperature.
In 2015, Brazil presented its first Intended NDC (INDC), which established a commitment to reduce net GHG emissions by 37% by 2025, in relation to the base year 2005, as well as an indicative commitment by Brazil to reduce net GHG emissions by 43% by 2030.The calculations for potential global warming were based on the emission factor of the Fifth Report of the IPCC (Intergovernmental Panel on Climate Change) . The claimants explained to the court that the INDC presented the equivalent figures for net GHG emissions, used as a basis and reference for the calculation of the commitments undertaken (2.1 billion tons of carbon dioxide equivalent), calculated based on the Second National Inventory of emissions (of 2010) so that 37% reduction in carbon emissions would mean an emission level of 1.3 billion tons in 2025 and 43% reduction would be equivalent to an emission level of 1.2 billion tons in 2030 . The new calculation basis presented 2.8 billion tons of carbonic dioxide, which means 700 million tons above the previous basis (2.1 billion). By maintaining the same reduction percentages on a substantially higher number, the defendants had in practice reduced the commitment made by the country for 2025 and 2030, thus violating the Paris Agreement .
- The claimants highlighted that the government not only included in the updated NDC disguised alterations to the basis for calculating GHG emissions generated, but also failed to reference additional commitments provided in the INDC. Specifically, the commitment to “strengthen policies and measures to achieve, in the Brazilian Amazon, zero illegal deforestation by 2030 and the offsetting of greenhouse gas emissions from vegetation suppression by 2030″and “restore and reforest 12 million hectares of forests by 2030” .
- The claimants highlighted that it was Brazil’s own idea to partake in the Paris Agreement and to include the obligation to always make progress on the targets and ambitions set out in each NDC, which binds Brazil even more in relation to this commitment. They argued that this alleged regression violates the Brazilian principle of non-regression of public policies, especially environmental policy contained within the Federal constitution [10.]
- The claimants requested the court to consider the global growth of climate litigation aimed at climate mitigation and the importance of this prerogative in Brazil, as the protection of the ecologically balanced environment for present and future generations is one of the foundations of the Brazilian constitution. As a demonstration of the emergence of a culture of climate litigation which has borne promising political fruit and inserted the climate agenda increasingly into the decision-making institutions of governments and countries, the claimants referred to Urgenda v. Dutch Government , Oxfam France et al v. French Government  and Leghari v. Pakistani Government .
- The claimants then referred to the formal endorsement of eight former ministers of the Environment to the class action lawsuit and requested the court issue a preliminary injunction. Thus, they sought: a) suspension of the effects of the 2020 NDC update; b) adaption of the 2020 NDC to reflect the values relating to the percentage target proportional to the 2015 NDC; c) decision-making process for this purpose to be participatory and include representatives of civil society .
- The final requests included: a) the declaration of nullity of the challenged administrative act (updated NDC submitted by Brazil on December 9, 2020); b) the submission of an updated 2020 NDC to accurately reflect the percentages of reduction of carbon dioxide emissions necessary to meet the progressive commitment of the Paris Agreement c) defendants to pay damages for their acts of R$ 1.000,00 (one thousand Brazilian reais) .
Federal Judge Moemi Martins de Oliveira dismissed the request for urgent injunctive relief. In order for an injunctive relief to be granted there must be evidence of the probability of the right and the danger of damage or risk to the useful outcome of the case. Judge Oliveira did not observe the legal requirements in the claimant’s submission, per Article 300 of the Code of Civil Procedure . In addition, it was ruled that a preliminary injunction cannot be granted when there is a danger of irreversibility of the results of the decision .
Judge Oliveira determined that it was not possible to affirm that the NDC presented by Brazil in December 2020 did not reflect its greatest possible ambition, since it included the goal of achieving climate neutrality in 2060 and did not rule out the possibility of adopting, at the appropriate time, a more ambitious long-term goal.
- Judge Oliveira looked into the Paris Agreement’s specific targets on climate change , how the Agreement should be implemented to reflect equity and different national circumstances , the role of long-term progressive NDC , and the required regular production of a national inventory report and the information necessary to track progress . She concluded by establishing that the information submitted by the Parties must be subject to expert technical review  in order to evaluate the implementation and achievements of Brazil’s NDC.
- Judge Oliveira argued that the copy of the NDC delivered by Brazil on December 8, 2020, revealed that the country confirmed its previously presented commitments to reduce GHG emissions by 37% below 2005 levels in 2025, and 43% below 2005 levels in 2030. Thus, she disagreed with the plaintiffs’ claim that the updated NDC increased the levels of emissions and violated the principle of progression. She further added that, if the NDC filed by Brazil in December 2020 was strictly linked to the third national inventory, as affirmed by the claimants, the increase in the calculation basis of carbon dioxide emissions from the base year of 2005 from 2.1 billion tons to 2.8 billion tons, even with the preservation of the percentages informed in the previous NDC (37% reduction in 2025 and 43% in 2030), would imply an increase in the absolute values of reduction concerning those previously informed, since the reduction percentages would apply to a high calculation basis.
- She concluded by adding that the authors themselves stated that the change in methodology for the calculations present in the inventories wass “normal and expected within the scope of the United Nations Framework Convention on Climate Change” .
Please find the full judgement in Portuguese here.
Last edited 27 May 2022; with thanks to the case editor, Sadiyah Ahmed.
| Six Youth v Minister of Environment and Others, nº 5008035-37.2021.4.03.6100, 28 May 2021, page 2.|
 Ibid., p. 12.
 Ibid., pp. 34 and 35.
 Ibid., p. 15.
 Paris Agreement  OJ L 282, 19.10.2016, Article 4(11).
 Brazilian Federal Constitution , Article 225.
 Six Youth v Minister of Environment and Others, pp. 11 and 12;
 Ibid., p. 32.
 Ibid., p. 18.
 Urgenda v. Dutch Government  HAZA C/09/00456689.
 Oxfam France et al v. French Government .
 Leghari v. Pakistan Government  W.P. No. 25501/2015.
[14 ] Six Youth v Minister of Environment and Others, page 33.
 Ibid, p. 34.
 Law 4717/1965, Article 5(4); Brazilian Code of Civil Procedure, Article 300.
 Brazilian Code of Civil Procedure, Article 300(3).
 Paris Agreement OJ L 282, 19.10.2016, Article 2(1).
 Ibid, Article 2(2).
 Ibid, Articles 2, 3, 4.
 Ibid, Article 7.
 Ibid, Article 13(11), (12).
 Six Youth v Minister of Environment and Others, p. 14.