Six young climate activists filed a claim against Brazil’s former Ministers of the Environment and International Affairs and the federal government for decreasing the country’s ambitions to reduce emissions within their updated 2020 NDCs under the Paris Agreement. The claimants’ request for urgent injunctive relief due to the urgency of the climate crisis was denied, and the final judgement is still pending.

By Eva Souchet

Case Information: 

Court(s): 14^th Federal Civil Court of Sao Paulo

Dissenting judgement: No

Filing Date: 2021

Last Update: 2023

Status: Pending

ISSUES

Whether Brazil’s updated Nationally Determined Contribution (‘NDC’), that decreased the country’s ambition, violated the Paris Agreement and Brazil’s Constitution.

MATERIAL FACTS/BACKGROUND 

On 13 April 2021, six young climate activists members of Engajamundo and Fridays For Future Brazil movements (the ‘Plaintiffs’) 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 Defendants’).[1]

The Plaintiffs claimed that the Brazilian government violated the Paris Agreement and Brazilian constitutional law by presenting a target reduction of its 2020 Nationally Determined Contribution (‘NDC’).[2] The Plaintiffs argued that through an accounting manoeuvre, the updated NDC will allow the country to emit between 200 million and 400 million tons of carbon dioxide in excess of that proposed in the 2015 NDC.[3] The youth submitted that the 2020 NDC violates the Paris Agreement, the Federal Constitution, the principle of non-regression, and generates incalculable environmental damage.[4]

The Plaintiffs 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.[5]

THE PARTIES’ ARGUMENTS

The Plaintiffs’ Arguments:

1. The Plaintiffs argued that the class action was in line with Article 225 of the Federal Constitution, which expressly demands the active and direct involvement of representatives of civil society (collectively) in protecting the ecologically balanced environment.[6] 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.[7] Consequently, the Plaintiffs submitted 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.[8] In addition, the Plaintiffs 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’.[9]

The Plaintiffs posited 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.[10] This, in practice, thus reduces 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 (UNFCCC) of the Paris Agreement itself.[11] 

2. On these grounds, the Plaintiffs considered the 2020 NDC update as an ‘accounting trick’ that damaged Brazil’s efforts and international reputation to mitigate GHG emissions and the climate crisis.[12] They averred that increases in GHG emissions violate (1) the Paris Agreement, (2) Article 225 of the Federal Constitution, and (3) the principle of non-regression of public policies and public morality.[13] They also asserted that it will generate incalculable environmental damage through the accelerated increase in the planet’s temperature.[14]

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.[15] The calculations for potential global warming were based on the emission factor of the Fifth Report of the IPCC (Intergovernmental Panel on Climate Change).[16] The Plaintiffs explained that the INDC presented the equivalent figures for net GHG emissions that are used as a basis and reference for the calculation of the commitments undertaken (2.1 billion tons of carbon dioxide equivalent) and calculated based on the Second National Inventory of emissions (of 2010). As such, a 37% reduction in carbon emissions would mean an emission level of 1.3 billion tons in 2025, while a 43% reduction would be equivalent to an emission level of 1.2 billion tons in 2030;[17] this new calculation basis presented 2.8 billion tons of carbon dioxide, 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, thereby violating the Paris Agreement. 

3. The Plaintiffs 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.[18] These additional commitments included ‘strengthen[ing] 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 ‘restor[ing] and reforest[ing] 12 million hectares of forests by 2030’.[19]

4. The Plaintiffs pointed out that since Brazil willingly partook in the Paris Agreement and included the obligation to always make progress on the targets and ambitions set out in each NDC, this binds Brazil even more to this commitment.[20] They argued that this alleged regression violates the Brazilian principle of non-regression of public policies, especially environmental policy contained within the Federal Constitution.[21]

5. The Plaintiffs 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 an ecologically balanced environment for present and future generations is one of the foundations of the Brazilian Constitution.[22] To prove 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 Plaintiffs referred to Urgenda Foundations v. State of the Netherlands,[23] Notre Affaire à Tous and Others v. France [24] and Leghari v. Federation of Pakistan.[25]

6. The Plaintiffs 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.[26] They thus sought to (1) suspend of the effects of the 2020 NDC update; (2) adapt the 2020 NDC to reflect the values relating to the percentage target proportional to the 2015 NDC; and (3) ensure participatory decision-making processes for this purpose through including civil society representatives.[27]

7. The final requests were (1) the declaration of nullity of the challenged administrative act (updated NDC submitted by Brazil on December 9, 2020); (2) 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; and (3) damages for the Defendant’s acts of R$ 1.000,00 (one thousand Brazilian reais).[28]

OUTCOME

Federal Judge Moemi Martins de Oliveira dismissed the request for urgent injunctive relief.[29]  For 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.[30] 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.[31]

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. This was because 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.

1. 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.[32] She concluded by establishing that the information submitted by the Parties must be subject to expert technical review  to evaluate the implementation and achievements of Brazil’s NDC.[33]

2. 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.[34] Thus, she disagreed with the Plaintiffs’ claim that the updated NDC increased the levels of emissions and violated the principle of progression.[35] 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 Plaintiffs), 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.[36]

3. She concluded by adding that the authors themselves stated that the change in methodology for the calculations present in the inventories was normal and expected within the scope of the UNFCCC.[37] 

After rejecting the request for urgent injunctive relief, both parties contested the decision. However, the federal judge of São Paulo denied their requests in 2022.[38] Following the last outcome, the Judge inspected the case files and requested final statements from the parties before delivering the final judgement.

Both parties have now filed their concluding remarks and the case is awaiting the final judgement.

Find the full judgement in Portuguese here. This is the Plaintiffs’ initial Statement of Claims, that initiated the legal procedures. Additionally, the decision mentioned in the outcome section of 2021 can be found in Portuguese here: https://1drv.ms/b/s!AtQ7o1-DwYfrhNcRhg5MA32j-pv4GA?e=pbUFFF 

Information of the case in its original language: AÇÃO POPULAR, APop 5008035-37.2021.4.03.6100 – Meio Ambiente, THALITA SILVA E SILVA e outros (5) X RICARDO DE AQUINO SALLES e outros (2). Check updates in: https://pje1g.trf3.jus.br/pje/ConsultaPublica/listView.seam?numeroProcesso=5008035-37.2021.4.03.6100

Last edited 27 May 2022, with thanks to the case editor, Sadiyah Ahmed. Last updated in June 2023 by Clara Egler.

REFERENCES
[1] Six Youths v Minister of Environment and Others, Popular Action No. 5008035-37.2021.4.03.6100/SP (13 April 2021). 
[2] ibid 2. 
[3] ibid 9.
[4] ibid 16. 
[5] ibid 33–34. 
[6] ibid 14. 
[7] ibid 15. 
[8] ibid. 
[9] ibid. 
[10] ibid 8. 
[11] United Nations Framework Convention on Climate Change Conference of the Parties, 21st Session, Adoption of the Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UN Doc. FCCC/CP/2015/10/Add.1 art 4(11). 
[12] Six Youths v Minister of Environment and Others (n 1) 19, 29. 
[13] ibid 16. 
[14] ibid. 
[15] ibid 6. 
[16] ibid 7. 
[17] ibid. 
[18] ibid 30. 
[19] ibid. 
[20] ibid 18. 
[21] ibid 16. 
[22] ibid 25–26. 
[23] Urgenda Foundation v. State of the Netherlands [2015] HAZA C/09/00456689; Six Youths v Minister of Environment and Others (n 1) 26. 
[24] Affaire du siècle I, Oxfam France, Notre Affaire A Tous, Greenpeace France, Fondation pour la nature et l’homme No. 1904967, 1904968, 1904972, 1904976/4-1, Paris Administrative Court (3 February 2021); Six Youths v Minister of Environment and Others (n 1) 27. 
[25] Asghar Leghari v. Federation of Pakistan [2015] W.P. No. 25501/2015; Six Youths v Minister of Environment and Others (n 1) 27. 
[26] ibid 33. 
[27] ibid 30. 
[28] ibid 34–5. 
[29] Six Youths v Minister of Environment and Others, Popular Action No. 5008035-37.2021.4.03.6100/SP (7 October 2021). 
[30] Brazilian Code of Civil Procedure art 300. 
[31] Six Youths v Minister of Environment and Others (n 29) 18. 
[32] ibid 3–4. 
[33] ibid 15–16. 
[34] ibid 11. 
[35] ibid 12–13. 
[36] ibid 13. 
[37] ibid 17–18. 
[38] Six Youths v Minister of Environment and Others, Popular Action No. 5008035-37.2021.4.03.6100/SP (3 March 2022) https://pje1g.trf3.jus.br/pje/ConsultaPublica/DetalheProcessoConsultaPublica/documentoSemLoginHTML.seam?ca=4159f83c1e434d7421854817e7ed3c32ecce774060d28ff36076f21201e3c79f4ba1a86854578ded6edaa47552b72cb844ce1135b78b635c&idProcessoDoc=244411896&codigo=