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Associação Brasileira dos Membros do Ministério Público de Meio Ambiente vs. Ministro de Estado do Meio Ambiente ADPF 814

Jurisdiction: Federal Supreme Court of Brazil

Principle law(s): Law 12.144/2009, and Decree 7.343/2010 establishing the National Fund on Climate Change (NFCC)

Side A: Associação Brasileira dos Membros do Ministério Público de Meio Ambiente (Ngo)

Side B: Ministro de Estado do Meio Ambiente ADPF 814 (Government)

Core objectives: Change in the composition of the Climate Fund and allocation of resources.

On March 19, 2020, ABRAMPA (Brazilian Association of Members of the Public Ministry of the Environment), a non-profit civil association, filed the Claim for Noncompliance with a Fundamental Precept (ADPF) in light of Federal Decree 10.143/2019 and Ministry of the Environment (MMA) Ordinance 575/2020, to suspend the effects of the change in the composition of the Management Committee of the National Climate Change Fund (“Climate Fund”) and its deliberative procedure, in view of the provisions of articles 1; 5th, Inc. I and XXXVI; 14; 37; 60, §4 and inc. I; 193 and 225 of the Federal Constitution.

The proponents allege that such changes reduced the transparency of the deliberative process of the collegiate body and reduced its representativeness, violating the federative, democratic and popular participation principles. The participation of States and Municipalities in the committee was eliminated. The participation of civil society interested in combating climate change was also considerably reduced, since representatives of the scientific community, non-governmental organizations working on the climate issue, urban and rural workers, family farming, and traditional communities. On the other hand, the participation of economic sectors that are not necessarily committed to the climate agenda was expanded, since their profitable activity is still heavily based, precisely, on the emission of greenhouse gases (GHG) that cause climate change.

The lack of representativeness of the new composition of the body and the absence of members specialized in the climate issue and directly interested in the fight against climate change have diverted the Management Committee from achieving its institutional purpose. So much so that the Fund's resources have been inappropriately invested since 2020.

The Climate Fund is one of the instruments of the National Policy on Climate Change and was created by Law 12114 on 12/09/2009, regulated by Decree 7343 of 10/26/2010, and currently governed by Decree 10143 of 11/28 /2019. It consists of an accounting fund, linked to the Ministry of the Environment with the purpose of guaranteeing resources to support projects or studies and financing of ventures that have the objective of mitigating climate change. The Management Committee of the National Fund on Climate Change was established by administrative ordinance of the Ministry of the Environment in 2020 (Ordinance number 515/2020) and, among other regulations, regulates the composition of the management staff, origin of their appointment and deliberative rules of their decisions.

Both devices have the function of disciplining the execution of Law No. 12,114/2009, which created the Climate Fund. Therefore, both Decree 10.143/2019 and Ordinance No. 515/2020 are the subject of ADPF 814, as their recent changes threaten the right to an ecologically balanced environment (art. 225 of the CF). Other fundamental precepts violated according to the authors were direct popular participation (art. 1, sole paragraph, 14 and 193, sole paragraph of the CF); the federative principle (art. 1, caput of the CF); in the principle of the prohibition of institutional setback (which arises from the rights enshrined in article 1, caput and item III; article 5, item XXXVI and § º; and article 60, § 4, IV of the CF); the right to equality (art. 5, item I, of the CF); and the principles of transparency and efficiency of Public Administration (art. 37, caput of the CF).

In April 2021, Minister Gilmar Mendes did not acknowledge the lawsuit due to the illegitimacy of ABRAMPA to propose an Action of Claim for Noncompliance with a Fundamental Precept, based on Law no. 9,882/99 that in its art. 1, sole paragraph, I, and art. 4, §1, regulates art. 103, §1, of the Federal Constitution.

On appeal, the acknowledgement of the lawsuit was again denied in May 2021 in a session chaired by Minister Luiz Fux.
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