Climate Litigation in Brazil: New Developments in Seeking Government Action Towards More Ambitious Legislation

While climate litigation against private actors in Brazil has been gaining more attention and employing creative legal strategies, as we have already commented here and here, litigation against the government is also keeping pace, as illustrated by a recent case filed against the Brazilian Federal Government and the Ministry of Environment.

On October 26, just a week before the Glasgow Climate Change Conference (COP26), 70 NGOs led by Observatório do Clima filed a public civil action claiming that the current Brazilian National Policy on Climate Change, set forth by Law no. 12,187/2009, is inadequate and unable to provide a response to the current climate crisis. As such, the plaintiffs require that the policy be updated with new commitments, effectively fit to contribute in the fight against climate change.

Considering the Brazilian climate change litigation scenario, the plaintiffs’ request is what makes the lawsuit noteworthy: as climate litigation developed in Brazil over the past few years, petitions never really focused on seeking the adoption of more ambitious GHG reduction targets. While there have been lawsuits seeking the annulment of administrative acts, the annulment of permits granted to activities deemed harmful to the environment, and the use of available funds for fighting climate change, none of these lawsuits have gone as far as to specifically seek more stringent GHG reduction goals in a broader governmental level. Whereas this kind of litigation against governments has become relatively common in Global North jurisdictions, this new lawsuit represents a novelty for Brazilian climate litigation, and could likely encourage more lawsuits with similar targets, especially in light of the COP26 and governmental commitments arising therefrom.

The lawsuit is also a demonstration of how data available on climate science can serve as argument before the courts. In order to evidence the inaptness of Brazil’s current climate change policy, plaintiffs relied on the Intergovernmental Panel for Climate Change’s (IPCC) Sixth Assessment Report, published last August, which paints a dire picture of the pace in which climate change is intensifying, rather than being mitigated.

In reality, this new lawsuit goes to show how climate science can be leveraged by plaintiffs and how global trends of climate litigation, particularly those seeking to compel governments to adopt more ambitious laws and targets, are finding their own expression in Brazil. Depending on the outcome of the COP26 and on how ambitious and effective are the commitments presented by governments, jurisdictions around the globe may experience (or continue to experience) an increase in climate litigation cases against governments and corporations.

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