Abstract
AbstractClimate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,1 and home to the largest extension of the Amazon rainforest. Climate litigation has been gaining traction, but it is still far less frequent than environmental litigation at large. Against the backdrop of the state and trends of climate litigation in the country, this article explores theoretical and practical avenues to further expand the strategic deployment of climate cases in Brazil. First, it analyzes how climate claims can be construed with arguments that are impervious to the political question doctrine. Second, it explores possibilities of bringing claims against private entities, challenging more granular obligations arising out of Environmental, Social and Governance (ESG) frameworks. Third, it discusses the role of lawyers in bridging theoretical and practical gaps, namely those between environmental law and climate law, between scientific experts and courts, and between international and domestic climate change regimes.
Highlights
Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,[1] and home to the largest extension of the Amazon rainforest
Notable cases in the current wave of litigation in Brazil in which climate change is a central element[2] include the following: The Climate Fund Case, the first climate claim filed before the Brazilian Supreme Court, Alessandra Lehmen Environmental and climate lawyer admitted in New York and Brazil
There are a few that come to mind: The COVID-19 pandemic, and, with it, the realization that climate change increases the risk of future outbreaks;[11] the ubiquity of the climate emergency debate;[12] the rise of the ESG agenda;[13] and the strengthening of an epistemic climate community[14] in Brazil, comprised of lawyers, judges, scientists, business entities, politicians, prosecutors, academia, NGOs, and subnational governments
Summary
After the Climate Fund Case reached the Supreme Court, the debate on climate constitutionalism has been gaining traction in Brazil. Should, target lacking or poorly enforced climate policies, they cannot determine the contents of said policies It is fundamental, to reflect on how to advance climate rights without resorting to judicial consequentialism and the controversies that surround it.[22] It is vital to ponder how to construe a right to a stable climate with arguments that are impervious to the separation of powers defense and, as a consequence, more likely to be conducive to successful litigation. The Climate Fund Case lends itself to a wider discussion of climate law in Brazil, and it is still in somewhat early procedural stages, its object corresponds rather strictly to policy that has already been passed into law, and, to concrete aspects of said law As such, it does not interfere with the policymaking powers of the executive or the legislative, and has good prospects of sidestepping the separation of powers roadblock. The section discusses possible avenues for this to take place
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