Brazil

PSB et al. v. Brazil (on Climate fund)

Jurisdiction: Superior Tribunal Federal


Principle law(s): Law 12.187/2009, establishing the National Policy on Climate Change (NPCC), regulated by Decree 7.390/2010,Decree No. 9.578 consolidating executive regulations on Climate Change


Side A: Partido Socialista Brasileiro (PSB) (Individual)


Side A: Partido Socialismo e Liberdade (PSOL) (Individual)


Side A: Partido dos Trabalhadores (PT) (Individual)


Side A: Rede Sustentabilidade (Ngo)


Side B: Brazil (Government)


Core objectives:

Four political parties filed a Direct Action of Unconstitutional Omission to the Federal Supreme Court to compel the Ministry of the Environment to resume the activities of the Climate Fund.


Summary
On June 5, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission, before the Federal Supreme Court to challenge the Federal Union's alleged failure to adopt administrative measures concerning the Climate Fund. The National Climate Change Fund (Fundo Clima), created by Law 12.114/2009, is an instrument of the National Policy on Climate Change (PNMC, Law 12.187/2009) and aims to ensure that resources support projects or studies and finances activities aimed at mitigating and adapting to climate change and its effects.

The plaintiffs allege that although there is a legal obligation for the Ministry of the Environment to prepare an annual plan for the Climate Fund, it has been inoperative since 2019. The petitioners rely on the obligation of the Union, the States, the Federal District and the Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora” per the Federal Constitution, as well as the precautionary principle. The plaintiffs also allege a violation of Article 225 of the Federal Constitution, regarding the State's duties to: preserve and restore ecological processes; promote the ecological management of ecosystems; define territorial spaces and its components to be specially protected; and protect fauna and flora. The petition also seeks an injunction to require that the Federal Union: (i) undertake the necessary administrative measures to reactivate the operation of the Climate Fund, with the due availability of resources related to the Climate Fund (including the non-refundable and refundable modalities); (ii) prepare and present the appropriate annual plans for the application of the Fund's resources; and (iii) refrain from making new contingencies of resources from the Climate Fund.

The preliminary ruling by the Supreme Federal Court: (i) adopted an urgency procedure for the action; (ii) summoned the governmental actors involved; (iii) admitted the action as an Argument for Failure to Comply with a Fundamental Precept (ADPF, another constitutional procedure aimed at enforcing the principles and values in the Constitution); and (iv) scheduled a public hearing on September 21 and 22, 2020, creating a deadline for interested parties to express their interest in participating, until August 10, 2020.
Case documents

Related laws and policies
  • This law implements Brazil legislation
    Law 12.187/2009, establishing the National Policy on Climate Change (NPCC), regulated by Decree 7.390/2010

    Passed in 2010 Legislative

    This law creates the NPCC with the following key areas of concern: combining climate protection with socio-economic development; reducing anthropogenic GHG emissions from all its sources and strengthening GHG sinks; adaptation; preservation, conservation and recuperation of national biomes; land ...

  • This law implements Brazil legislation
    Decree No. 9.578 consolidating executive regulations on Climate Change

    Passed in 2018 Executive

    This Decree consolidates the normative acts issued by the Federal Executive Power about the National Climate Change Fund regulated by Law No. 12.114 of December 9, 2009, and the National Policy on Climate Change, regulated by the Law No. 12.187 of December 29, 2009, in compliance with the provisi...

from the Grantham Research Institute
from the Grantham Research Institute
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