The Brazilian Federal Supreme Court as Guardian of the Ecosystem: An Emerging Framework for Ecological Justice

Manuellita Hermes

Brazilian Federal Supreme Court

In 2020, many cases pertaining to environmental law were brought before the Brazilian Federal Supreme Court. Two landmark cases, in particular, remain pending. Initial procedural activities in these two constitutional cases suggest the emergence of a new paradigm for ecological justice in the country – that is, a new and complex model for the protection of human dignity that moves beyond a purely anthropocentric approach and squarely confronts the interrelations between humans and the environmental sphere.

Historical-Regulatory Record

As the capstone to a process developed mainly during the 60s and 70s, the Federal Constitution embraced the protection of the environment in 1988. Nonetheless, due to weak regulations which suffer from a low level of compliance, the standards for environmental protection have not yet reached maturity in the contemporary landscape of international relations. As a result, it is necessary to improve environmental protection at the national level in order to ensure the effectiveness of environmental regulations and, thus, reduce the global ecological deficit.

Environmental rights are a central issue on both the international agenda and the docket of the Brazilian Federal Supreme Court. Just last April, for instance, the Federal Supreme Court held that the right to “compensation for damages caused to the environment is an inalienable fundamental right, and it is imperative to recognize that the compensation for environmental damages is not subject to the statute of limitations”. The precedent that the statute of limitations does not apply to compensation for environmental damages can be traced to the Extraordinary Appeal [RE - Recurso Extraordinário] n. 654833, which established the General Repercussion doctrine: “The claim for civil compensation for environmental damage is not subject to the statute of limitations”.

Ecological Justice: Initial Methodological Framework in Brazil

It is incumbent upon countries such as Brazil to bring ecological justice into effect. To do so requires addressing not only the social dimension resulting from the environmental impacts caused by human action but also, in an undoubtedly complex way, to manage the destructive effects arising from such actions and, at the same time, to assess the economic, biological and intercultural aspects in order to solve problems arising from the relationship between human beings and the environment.

The locus of conflict has also changed: the social relations associated with environmental justice are now addressed from an ecological-systemic perspective. A structural dysfunctionality has resulted from the interactive dynamics between human activities and the surrounding environment. For that reason, and in addition to the already recognized global dimension of the conflict, structural disputes are now taking place.

One can observe how an action that occurs in one place has repercussions in another. Hence the need for a structure with global solutions and international standards; purely local approaches will not suffice. Meanwhile, with global structures still insufficiently developed, what are the specifics of ecological justice according to the Brazilian Federal Supreme Court?

Two landmark cases – both filed in 2020 and still pending trial before the STF – may help to answer this question. Each is related to a financial fund, namely the Climate Fund and the Amazon Fund. The management of both funds was subject to judicial review, respectively, in the Claim of Non-Compliance with Fundamental Precept [ADPF - Arguição de Descumprimento de Preceito Fundamental] n. 708, under Rapporteur Justice Roberto Barroso, and in the Direct Action of Unconstitutionality for Omission [ADO - Ação Direta de Inconstitucionalidade por Omissão] n. 59, under Rapporteur Justice Rosa Weber.

The first case, ADPF 708, turned on the question of whether the National Fund for Climate Change (Climate Fund) was functioning adequately and related consequences with respect to the right to a healthy environment. Justice Barroso, in a single judgment, acknowledged that the facts alleged in the application, if confirmed, would amount to an unconstitutional state of affairs in environmental matters. On September 21 and 22, 2020, a public hearing attended by representatives of public agencies, social organizations, research institutes, universities and corporations was held, giving place to a broad debate in the STF.

In the second case, ADO 59, the plaintiffs cited the lack of measures taken to maintain the Amazon Fund and alleged an omission on the part of the Federal Government. A public hearing was held on October 23 and 26, 2020, using a procedure called “deliberative space” to answer questions after oral arguments, including the possibility for participants to ask questions of each other where justified.

The procedures followed in these two constitutional cases, so far, indicate three preliminary aspects that are revelatory of the characteristics of the emerging ecological justice:

1) Comparative law: In individual opinions initially entered at ADPF 708 (then ADO 60) and in ADO 59, the Rapporteurs referred to decisions of non-Brazilian courts. Justice Roberto Barroso referred to the case of Comunidades Indígenas Miembros de La Associación Lhaka Honhat (Nuestra Tierra) vs. Argentina (Nuestra Tierra vs Argentina), decided by the Inter-American Court of Human Rights (IACHR). In referring to the Advisory Opinion n. 23/2017, he also referenced the US legal system. Justice Rosa Weber, meanwhile, also relied on the IACHR decision in Nuestra Tierra vs Argentina and illustrated the complexity, multipolarity, and urgency of environmental protection through references to decisions from courts in countries such as Pakistan, Colombia, South Africa, the United Kingdom, and the Netherlands. Given the external and auxiliary function of legal comparison – especially considering its complementary role via à vis national systems under the principle of complementarity or subsidiarity in the Inter-American system of human rights’ protection – the use of these precedents indicates the importance of comparative law in shaping and reinforcing the Court’s convictions. As a result of the legal controversies concerning ecological justice, Brazil's experience in referring to foreign precedents and, more precisely, to those from the Inter-American Court of Human Rights, may indicate the formation or elaboration of a dialogical construction. This use can possibly lead to a bilateral system in the true meaning of cross judicial fertilization in the constitutional precedents issued by the STF in relation to the protection of fundamental rights;

2) Recognition of the interdependence of rights: An analysis of the current procedural developments demonstrates an awareness that discrete legal issues are, in fact, capable of generating an impact on a plexus of fundamental rights, such as life, health, cultural identity, food security, drinking water, and, in addition, may have an effect on traditional communities, such as indigenous, quilombola, and other populations. The STF seems inclined to afford special importance to interculturality and harmonious coexistence;

3) Public hearings as a tool: It is worth noting that public hearings are offered as a real space for democratic participation in cases related to constitutional matters, providing a venue for pluralism with an interdisciplinary debate. This is a procedural mechanism that combines judicial and political constitutionalism, as described by Mark Tushnet. Through this process, the Supreme Court is able to promote a historical interpretation based on the collection of reliable records of past events. As Justice Roberto Barroso said: “(...) Constitutional Courts - and also International Courts - can assume an informative role in the public space: promoting the clarification of facts, the kind of official report on what is actually happening in a country. Said official report represents a reliable evidence of what happened in the past, what is happening in the present and, to that extent, opens the way for diagnosing problems, identifying solutions and assigning responsibilities”.

A Transparent and Interdisciplinary Design

The proceedings in the previously discussed constitutional cases indicate the adoption of a methodology of constitutional opening, through dialogue and debate, that allows a deepened awareness of the magnitude of legal problems brought before the Supreme Court.

In terms of ecological justice, the STF is developing a procedure that concentrates not only on the specific perspective of the relevant financial aspects emerging from the Climate Fund and the Amazon Fund but also on the complexity of the environmental impacts. In order to do so, the Court has a focus on the interdependence between rights and the interdisciplinarity of the topic, in a search of systemic solutions based on a synchronous as well as diachronic view of the ecosystem.

Manuellita Hermes is a Federal State Attorney, currently on secondment as a judicial clerk at the Brazilian Federal Supreme Court. She is a Ph.D. Candidate in Law and Judicial Remedies: Civil Law, Comparative Law, Roman Law at the Università degli Studi di Roma Tor Vergata. She also holds a Master in Contemporary Legal Systems (Università degli Studi di Roma Tor Vergata) and has specialized in Constitutional Justice (Università di Pisa) and in State Law (Universidade Federal da Bahia).

An earlier version of this article in Portuguese, STF como guardião do ecossistema: contornos preliminares da Justiça Ecológica, appeared in Jota magazine.

Suggested citation: Manuellita Hermes, ‘The Brazilian Federal Supreme Court as Guardian of the Ecosystem: An emerging framework for ecological justice’ IACL-AIDC Blog (23 February 2021) https://blog-iacl-aidc.org/2021-posts/2021/2/23/the-brazilian-federal-supreme-court-as-guardian-of-the-ecosystem-an-emerging-framework-for-ecological-justice.