In anticipation of Volume 54.4 of the Georgetown Journal of International Law, this blog offers a preview of the introduction to “Human Rights and Climate Change for Climate Litigation in Brazil and Beyond: An Analysis of the Climate Fund Decision” by Maria Antonia Tigre and Joana Setzer. This article will be available in full in Volume 54.4.

In July 2022, the Supremo Tribunal Federal (STF), Brazil’s constitutional and highest court, rendered an unprecedented ruling, acknowledging the significance of the Paris Agreement within the country’s legal framework (PSB et al. v. Brazil (on the Climate Fund) (ADPF 708)). The case at hand, referred to here as the Climate Fund case, specifically challenged the suspension of the Climate Fund, a financial mechanism established by national law that provided funds for mitigation and adaptation projects. In a ten-to-one ruling, the Court determined that the executive branch has a constitutional obligation to allocate funds from the Climate Fund for climate change mitigation and could not refuse to implement a measure that was mandated by legislation. This duty is grounded in the constitutional right to a healthy environment, the obligation to fulfill international rights and commitments, and the principle of separation of powers. Significantly, the Court, for the first time in global climate change litigation, recognized the Paris Agreement as a human rights treaty.

The majority decision came during a challenging political period, with Jair Bolsonaro serving as Brazil’s president. Bolsonaro’s presidency was characterized by a series of setbacks in environmental and climate policy, including the suspension of the Amazon Fund, which provided funds for anti-deforestation efforts in the Amazon rainforest, and the Climate Fund, which supported projects related to mitigation and adaptation. This case was added to the STF’s “Green Docket,” a collection of seven environmental and climate-related cases that addressed rollbacks in environmental rights, human rights, and climate protection during the Bolsonaro administration. The Supreme Court’s decision to adjudicate these lawsuits as a coordinated effort has been understood as a response to a significant mobilization by civil society, led by Non-Governmental Organizations (NGOs), artists, and lawyers against an “unconstitutional state of (environmental and climate) affairs” that was present in Brazil at the time. 

The decision carries substantial implications for Brazil, granting “supranational” status to the country’s obligations under the Paris Agreement and the United Nations Framework Convention on Climate Change (UNFCCC). Consequently, this Article shows that, as a direct consequence of the decision, any Brazilian law or decree that contradicts the Paris Agreement can now be invalidated based on this constitutional interpretation. The decision also provides valuable lessons across climate change litigation, including the recognition of the Paris Agreement as a human rights treaty, the duty to mitigate greenhouse gas (GHG) emissions, and challenges related to the separation of powers. Procedurally, it introduces innovative legal approaches that could serve as examples within Latin America and beyond, such as the involvement of political parties as plaintiffs in litigation and the unprecedented public hearing featuring a wide range of climate experts who provided the justices with scientific insights and facts related to climate change. Within Brazil, this victory is significant for climate advocates and provides lawyers with a crucial precedent to combat climate change.

Although reporting on the subject has been limited, there was some international coverage of the decision. For example, one report highlighted that the Brazilian Court was “the first in the world to recognize the Paris Agreement as a human rights treaty,” acknowledging the significant implications for national and international law. Within the Brazilian media, the decision was considered the most important climate litigation ruling in the country to date. However, unlike comparable high-profile decisions in rights-based climate litigation from the Global North, such as the Dutch Supreme Court’s ruling in Urgenda v. the Netherlands and the German Constitutional Court’s decision in Neubauer et al. v Germany,  the decision from the Brazilian apex court, as is often the case with climate change decisions in the Global South, has not garnered equivalent media and scholarly attention, and consequently lacks the same level of “popularity.” Since the decision, a limited number of scholars have analyzed it and its implications for climate litigation.

This situation carries practical implications for the understanding and advancement of global climate litigation, as often a piece of the story is missing in analyses of global trends. Progressive decisions from the Global South, which have the potential to influence and inspire similar rulings worldwide, often go unnoticed. Within this context, the Article addresses the lack of attention given to individual decisions from the Global South by offering an in-depth analysis of the Climate Fund decision and its implications for climate litigation in Brazil and beyond.

With the precedent established by the Supreme Court, other ongoing and future climate litigation cases in Brazil may experience more favorable outcomes. As of June 2023, there were seventeen climate cases pending before the Supreme Court, five of which have already received interlocutory decisions. These cases were part of a larger set of fifty-nine climate litigation cases that have been identified in Brazil. The majority of the petitions were filed between 2020 and 2022, seeking to challenge deregulation efforts. It is conceivable that climate litigation in Brazil will continue to expand even after changes in government, targeting both state and non- state actors through the use of innovative legal arguments.

In examining the Supreme Court’s decision in Climate Fund, this Paper adopts a comparative perspective, analyzing the case in light of trends in climate litigation worldwide. In particular, it assesses the rights and duties recognized by the Supreme Court and their significance at the national, regional, and global levels. The Paper argues that the decision represents the beginning of a third phase in climate litigation in Brazil, establishing a critical precedent due to three distinct legal interpretations advanced by the Court: (i) recognizing the Paris Agreement as a human rights treaty, (ii) establishing the duty to mitigate GHG emissions as a constitutional obligation, and (iii) affirming the duty to implement the Paris Agreement through judicial oversight.

The Article makes a unique contribution to the growing understanding of global climate litigation in several ways. Firstly, it contributes to the scholarship on climate litigation in the Global South. Although this scholarship has seen recent growth, it has not yet reached its full potential or achieved parity with the research focused on the Global North. Secondly, this Article enhances the understanding of rights-based climate litigation, particularly through the unique interpretation of the Paris Agreement presented in the Climate Fund case. Lastly, it builds on the limited scholarship on climate litigation in Brazil. In the most recent analysis of global climate litigation, United Nations Environment Program (UNEP) has highlighted Brazil as one of the top ten jurisdictions in the number of cumulative cases. In fact, the country is becoming a “hub” for global climate litigation, featuring innovative cases, procedural advancements, and rulings that have the potential to inspire and influence litigants and courts worldwide. This role reinforces the position of Latin America as a region that is quietly leading a revolution in climate litigation.

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Maria Antonia Tigre is a Senior Fellow in Global Climate Litigation at the Sabin Center for Climate Change Law at Columbia Law School. Joana Setzer is an Assistant Professor at the Grantham Research Institute on Climate Change & the Environment at the London School of Economics and Political Science.