Jair Bolsonaro, the populist Brazilian leader, rose to power on, among other things, an explicitly anti-environment platform. He promised to dismantle the environmental frameworks and programs that protect Brazil’s vital ecosystems, and when he secured the presidency in 2019, his administration began at breakneck speed to do just that.

The demolition of environmental frameworks, programs, and policies under the Bolsonaro administration has spelled disaster for the Amazon. Deforestation rates have exploded, and the critical region is moving ever closer to a tipping point whereafter swaths of the vibrant rainforest will transform permanently into dry savannah. This would not only be a catastrophe for the region – it would have severe consequences for the entire globe, given the Amazon’s role in regulating the global climate and sequestering greenhouse gases.

In light of this, civil society organizations in Brazil have organized to counter Bolsonaro’s anti-environment agenda and save the Amazon. This coalition of NGOs identified the Amazon Fund as a potential leverage point for strengthening environmental protections and advancing action to preserve the Amazon. The Amazon Fund was established in 2008 – in accordance with the constitutional provision (article 23) authorizing the federal government to act to protect the environment and preserve forests, fauna, and flora – to facilitate projects that combat and prevent deforestation in the Amazon and conserve the rainforest as well as its natural resources. Its funds are supplied by voluntary donations, nowadays primarily from the Norwegian and German governments and from Petrobras.

Prior to Bolsonaro’s rise to power, the Amazon Fund played an important role in facilitating projects and programs that protected the Amazon rainforest and substantially reduced rates of deforestation. Under Bolsonaro’s administration, however, the operation of the Fund has come to a complete standstill. Though there are still about 1.5 billion Brazilian reis (approximately 296.6 million U.S. dollars) in the Fund, no funds have been dispersed and no new projects have been assessed or approved. The Fund is, in short, just sitting there while the Amazon burns.

The Amazon Fund case targets the Bolsonaro administration’s willful paralysis of the Fund, aiming to unlock the available funds for forest preservation and protection projects – which are urgently needed to remedy the dangerous rate of deforestation in the Amazon and bring it under control.

Because of the procedural peculiarities around filing a ‘direct action of unconstitutionality by omission’ with the Brazilian Supreme Federal Court, Brazilian NGOs teamed up with several domestic political parties to file the complaint. This means that while the political parties are the named plaintiffs in this case, the NGOs that teamed up with them were the real driving force behind the initiation of the litigation.

Substantively, the plaintiffs argue that the federal government has – without justification and without proposing an alternative – held back funds that are legally supposed to go towards efforts to prevent and combat deforestation in the Amazon and conserve the rainforest. Not only is this inconsistent with the federal government’s obligation to administer the Fund in accordance with established law and policy, it also violates the Brazilian constitution. More specifically, the federal government’s failure to administer the Fund infringes upon the constitutional right to an ecologically balanced environment, protected under article 225, due to the threat the current rates of deforestation in the Amazon pose to the integrity of the regional and global climactic systems and given the overall ecological importance of the Amazon. In this way, the complaint marries administrative arguments with rights-based (constitutional) arguments: the federal government’s failure to act (an omission) is unreasonable, unjustified, and irregular and the consequences of the government’s inaction violates the constitutional right to an ecologically balanced environment.

The plaintiffs request a comprehensive remedy, including both positive and negative obligations on the part of the federal government. Specifically, the plaintiffs have requested that the Court issue an injunction requiring the federal government to take the administrative measures necessary to reactive the Amazon Fund, transfer funds to projects that have already been approved, evaluate and approve projects targeting deforestation and promoting the conservation of the Amazon, and establish a body consisting of government and civil society representatives to oversee the management of the Fund. The plaintiffs have also asked the Court to order the federal government to refrain from paralyzing the operation of the Fund in the future and abstain from using the Fund’s resources for purposes other than those provided by the regulations and guidelines governing the Fund.

The Amazon Fund case is currently pending before the Brazilian Supreme Federal Court. If successful, it could unlock desperately needed resources to counter the onslaught of destruction in the Amazon and provide a model for groups in other jurisdictions looking to ensure governments are satisfying their climate-related financial obligations. A similar case – the Climate Fund case, which targets the Brazilian government’s failure to properly administer its Climate Fund – is also currently pending before the Supreme Federal Court. The Amazon Fund case may ultimately be combined with the Climate Fund case and adjudicated by the Court as a single case.

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Overview

Year Filed: 2020
Year of Most Recent Ruling: N/A
Year of Final Ruling: N/A
Jurisdiction: Brazil
Court Name: Supreme Federal Court

Primary focus: mitigation (deforestation)
Ruling on: N/A
Plaintiff(s): Brazilian Socialist Party (PSB); Socialism and Freedom Party (P-SOL); Workers’ Party (CNPJ); Sustainability Network (Rede Sustentabilidade)
Defendant(s): Brazil (through its Attorney General)

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Timeline

2019:

Paralysis of the Amazon Fund

Donor countries halt donations to the Amazon Fund in light of the exponential rise in deforestation in the Amazon and the federal government’s efforts to halt the operation of the Fund:

June 2020

Complaint filed

October 2020

Public hearing held by the Supreme Federal Court

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Strategies

  1. Combining rights-based arguments with administrative law arguments to strengthen the merits of the case.
    The plaintiffs in the Amazon Fund case make use of more traditional administrative law arguments – pointing to the ways in which the government’s failure to administer the Fund is unreasonable and unjustified – while also invoking constitutional arguments by characterizing the failure to administer the Fund as a violation of the constitutional right to an ecologically balanced environment. The combination of a more ‘routine’ or ‘traditional’ type of legal argument – the administrative law argument – with a more ‘forward-looking’ or ‘innovative’ type of legal argument – the rights-based constitutional argument – may increase the likelihood that the Court will affirm the more innovative argument or may increase the plaintiffs’ overall chance of success by making their request appear more routine.
  2. Centering the right to a healthy environment. The plaintiffs put the violation of the constitutional right to an ecologically balanced environment at the heart of their complaint, arguing that the government’s failure to administer the Fund violates this right.

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Learn More

CLX webinar on human rights litigation and the Amazon

Author(s)

  • Jacqueline Gallant