Amazon Burning – How can we legally protect the lungs of our planet

The Amazon rainforest is burning, and again, human greed is behind it. It is hard to point fingers at who is truly responsible for this ecological disaster. It can be global warming, deforestation, the greed of corporations, or the non-eco-friendly government policies.  What is sure is that the current Brazilian President Jair Bolsonaro, since his election in October 2018, has been facilitating the (legal or illegal) exploitation of the Amazon. His politics allowed farmers, corporations, and loggers to burn down hectares of forest to clear land for livestock, mining, or growing crops in the biggest rainforest in the world.

How Will Our Climate Be Affected?

The Amazon absorbs 5% of the global carbon dioxide (CO2) emissions, helping us keep the already alarming levels of this climate-warming gas down. It is simple — the more it burns, the more CO2 will stay in the atmosphere. Eventually, the temperature will rise globally. Therefore, the burning and on-going reduction in the size of the Amazon is not only a Brazilian or South American problem, but it is causing harm on a global scale. Let us not forget the enormous damage it is causing the people who call the rainforest their home.

What are the legal grips available to force serious intervention to protect this vital natural resource? 

There is a precedent coming from Colombia where, since 2018, the Colombian slice of the Amazon is considered an entity on its own, subject of rights. Indeed, in April 2018, Colombian lawyer and human rights advocate, Cezar Rodriguez Garavito, represented 25 young people against the Colombian government to protect the exploitation of the Amazon. The ruling of the Colombian Supreme Court forced the Colombian government to comply with its duties under the 2015 Paris Agreement, with a commitment of reducing net deforestation to zero-level by 2020.

Although the Colombian Amazon Case set a significant precedent for environmental protection and climate litigation, its positive effects on the Amazon’s health as a whole are yet to be seen for two reasons. Firstly, as of today, the enforcement of the Supreme Court’s decision is still lacking. Secondly, the effects of the decision are limited to the Colombian Amazon, which covers only 8% of Amazon’s entirety against the 60% slice that Brazil owns.

Back to Brazil, since president Bolsonaro took charge of the country, more than 5000 square kilometers of the Amazon has burned down. This is a fact.

It is an incredibly unfortunate step back in a critical moment where countries are trying to take action to stop the warming of our planet. In fact, the Brazilian government already fought against deforestation and for the protection of indigenous land. For instance, in 2004, an aggressive battle against illegal deforestation had the encouraging result of reducing forest loss by 75% in only eight years.

What Are the Legal Tools Available?

So, what legal action could be taken to force the Brazilian government to change its short-term profit-driven policies and impose legally binding obligations to protect the Amazon, and consequently, the planet and its living beings?

First, there is the international diplomatic pressure, where the Paris Agreement might play a role. Secondly, there are national laws directly regulating climate change. There is also the Brazilian Constitution that protects the rights of indigenous communities living in the Amazon — a place they are entitled to call home — which is now illegally taken away from them.

This time around, it is not going to be a claim forcing the government to take action to reduce emissions, but it will be a claim forcing the Brazilian government to comply with its obligation to protect its land for the benefit of the environment.

International Diplomatic Pressure

On the international level, Brazil showed the readiness to join the battle in mitigating climate change. At the 21st United Nations Climate Change Conference (COP 21) of the United Nations Framework Convention on Climate Change (UNFCCC), Brazil signed the Paris Agreement.

The agreement stated that Brazil committed to implementing different actions to reduce 43% of greenhouse gas emission by 2030, in comparison to the 2005 levels. As evidenced by the recent scandals, the steps towards fulfilling this commitment have not been taken. The same applies to several other signatories of the Paris Agreement.

As mentioned above, from an international climate protection perspective, the Amazon rainforest is a vital resource for everyone by helping absorbing CO2 globally. The burning of the Amazon becomes a matter of national security for every country around the world. International concern was evident at the G7 a few weeks ago, where leaders pledged their support and even set aside USD $20 million to help stop the destructive fires.

The Brazilian president rejected the offered help, stating that the problem is within its territorial jurisdiction, and any international intervention would be a violation of such exclusive power over the country’s territory. French President Macron called the fires an “international crisis” and other European leaders are already condemning Bolsonaro’s administration and leveraging international agreements with Brazil to force the president to take action.

Brazilian response to Macron’s statement is well-summarized in the words of Mr. Chrisóstomo, Bolsonaro’s spokesman, who in an interview stated: “He(Macron)’s not Brazil’s president. He’s not even from the Americas. This forest isn’t shared, as he claims. It belongs to a nation which enjoys complete autonomy and authority to decide what happens to the forest and takes every possible care to preserve it.” 

Brazilian Constitution and National Laws 

From a litigation perspective, the Brazilian Constitution is also a great instrument to fight the President’s policies in court. A few days ago, Amnesty International released a report, where amongst other things, stated that the protection of indigenous rights is “key to preventing further deforestation in the Amazon.”

The Brazilian Constitution recognizes indigenous people’s right to the land, which extends to almost a quarter of the Amazon forest. Enforcing such rights against the government is, therefore, one of the most powerful legal tools. It is not only to protect indigenous communities,  but it is to help the climate stay cool for the benefit of every living being.

However, recent invasions of such protected territories have shown that powerful profit-driven forces can violate, without consequences, those land rights communities, such as the Guajajara. They are now fighting with their weapons to protect the forest, their home.

Because of Brazilian’s role in fighting climate change, due to its possession of vast forests, in 2009, the country adopted the Act on Climate Change. Although lacking essential aspects such as a tax on carbon which is arguably the most effective means of fighting climate change, this piece of legislation represented a significant weapon and a massive step in Brazil taking action to fight climate change.

Among the other benefits, it served as a legal base for establishing a National Policy for Climate Change (NPCC), which imposes the commitment of the country to support development by protecting the climate system and lowering gas-emissions through encouraging the use of clean energy. The NPCC also implies that Brazil needs to comply with its policies with the UNFCCC, provisions of COP 21 and other international documents already signed, and those that the country will ratify in the future, as well.

In some municipalities, there are different rules regulating climate change, such as Climate Change Act of Rio de Janeiro (State Law No. 5,690/10), São Paulo (State Law No. 13,798/09), Paraná (State Law No. 17,133/12), Distrito Federal (State Law No. 4,797/12), and many others.

One of the most important laws for preserving Brazilian forests is the Forest Code revised in 2012, which imposes requirements to landowners in the Brazilian Amazon to permanently maintain a proportion of the land (80% of forests) as legal reserves. However, as WWF stresses in this post, there is an opinion that this Forest Code is weaker than the previous one ruled in 1965. It was never enforced in full capacity.

Therefore, the Paris Agreement, the Brazilian Constitution, and the National Policy of Climate Change present crucial and powerful instruments for achieving legal decisions in favor of environmental protection. On the other hand, the ones most interested and driven in destroying the Amazon are big agricultural businesses serving the global demand for meat and soy, mining, and logging.

Illegal activities have been steadily increasing due to the government turning a blind eye on such activities. They continue playing along with the offenders rather than staying faithful to Brazilian laws and its constitution. Legal action, therefore, has to be brought against the Brazilian government to force all possible measures to stop illegal exploitation and to effectively recover what has already been lost on this protected land and globally vital natural resource.

Climate Legal Practice in Brazil

The Brazilian government’s attitude we have witnessed in the past weeks, although shocking, is not something noble. Even courts have decided on this matter in the past with a worrying tendency to favor the exploitation of the Amazon by ruling “against” the protection of the environment.

In 2008, the Superior Court of Justice (2008/0215494-3) determined that burning sugar cane should be permitted in exceptional circumstances only. Although the decision included the opinion that sugar refining method must be less polluting, the Superior Court confirmed appellants’ and stated that such practice does not add greenhouse gases to the atmosphere.

According to many types of research, like the one presented in the publication of the World Wildlife Fund, it confirms that burning sugar cane in the pre-harvest phase contributes to the increase of carbon monoxide in the air. This has corresponding impacts on both air quality and the climate. It was not the only concern. The burning sugar cane leads to soil degradation and loss of productivity, as well.

Although the verdict, in this case, wasn’t ruled against the environment, it affirms the misunderstanding of judges when it comes to environmental matters. In order to improve adjudications favoring environmental protection, it is necessary to provide better education for judicial authorities.

A Supreme Court’s decision (RE 586224/SP. Dje 07-05-2015) from 2015 conflicted provisions of the Climate Change National Policy Act and the Paris Agreement. The case was initiated by the Union of the Alcohol Manufacturing Industries of the State of São Paulo (Sindicato da Indústria de Fabricação do Álcool) (SIFAESP) and the Union of the Sugar Industries in the State of São Paulo (Sindicato da Indústria de Açúcar) (SIAESP). Jointly, they claimed the unconstitutionality of Municipal Act 1.952 of December 20th, 1995, of the Municipality of Paulínia strictly prohibiting the burning down of sugarcane straw in its territory.

Sao Paolo Court recognized the importance of such Act and ruled against plaintiffs asserting that arguable practice is causing great harm to the environment. Seeking the higher instance’s opinion, the case was brought before the Supreme Federal Court which, eventually, reversed the judgment.

The Supreme Federal Court held that Municipal Act 1.952 caused harm to the environment because using mechanization makes a greater negative impact than burning the straw. In other words, the court supported farmers to continue with the destructive practice, which was intended to be ceased by adopting the Municipal Act 1.952.

Although these precedents are still a matter of concern, and the courts’ mature knowledge of environmental matters is still very much lacking, more recent decisions suggest a slight movement towards a better understanding of sustainable development and environmental protection. In 2018, IBAMA (Brazilian Institute of Environment and Renewable Natural Resources), the agency responsible for enforcing laws against deforestation, fined five grain trading firms and farmers for illegal deforestation. This environmentally positive interpretation of the law by governmental agencies and courts should be welcomed as a positive sign for the future success of climate litigation in the country.

Takeaways: We Are All in This Together

Bolsonaro’s policy on the side, governments around the world should ask themselves, “Aren’t we all responsible for this?” Indeed, we should not forget that climate warming itself is a great danger to the Amazon.

Amazon experts Dan Nepstad and Leonardo Coutinho say the real threat to the Amazon is not man indicted fires, but it is the accidental fires that occur during the drought years. “The most serious threat to the Amazon forest is the severe events that make the forests vulnerable to fire. That’s where we can get a downward spiral between fire and drought and more fire.” 

There is a great degree of consensus on the danger of accidental fires for the future of the Amazon forest, and we are all responsible for that, not only Brazil. There is a liability shift where all nations could be held responsible for the present and future burning of the Amazon. Therefore, all countries should take steps towards reducing greenhouse gas emissions to preserve our climate stability and consequently, prevent the Amazon from burning.

To sum up, leveraging the enforcement of national laws and rights protected by the Brazilian Constitution could become a very effective instrument to overturn the current Brazilian government’s approach towards the Amazon. However, the extent of the butterfly effect that such disaster has on the climate should be an awakening alarm to all nations to come together and take steps towards finding new international public law instruments, allowing the protection of natural resources and environments we all depend on.

We contribute to climate change, the warming of our climate, the burning of our forests. It is not a problem of a specific country or region, but it is a problem that all nations have to come together to try and solve as efficiently as possible. You can force this change by engaging with local organizations in your own jurisdictions who are fighting climate change in Court.

Photo by Stiven Gaviria on Unsplash

The author of this post is Alessandro Mazzi.