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The 'Climate Variable' in Environmental Licensing

In 2020, JUMA began research on the inclusion of the climate variable in environmental licensing with the objective of substantiating possible cases for climate litigation in Brazil on this topic. The study was supported by the Instituto Clima e Sociedade (iCS).

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Substantial climate litigation on the effects of climate change has primarily occurred outside of Brazil. This litigation has had both successes and failures abroad in the fight against global warming and its already dramatic consequences. Within Brazil, litigation involving climate change is just starting, but the country is fertile ground for lawsuits of this nature. This research aims to expose and explore precisely why Brazil is fertile ground for creating an enforceable and effective environmental licensing scheme that can, if necessary, be validated by the courts.
In fact, this understanding about the Brazilian environmental licensing rules is robustly supported by legal principles, Federal and State Constitutions, environmental standards (especially those on environmental and climate licensing), and consolidated doctrine and jurisprudence on legal protection of the environment.
Environmental licensing and the prior assessment of environmental impacts are among the legal instruments able to confront immediate aspects of the climate crisis, and both have been present in the Brazilian legal system for 40 years. These instruments already provide for a broad, complete, and prior analysis of environmental impacts (direct and indirect; in the short, medium and long term, indirect and cumulative impacts) of potentially polluting activities, such as those that directly or indirectly emit Greenhouse Gasses (GHG). As a result of the hypercomplexity of climate risks, the rules and legal instruments for their identification and solution have not been able to guarantee the prevention, mitigation, and compensation of impacts on the climate. This is not due to the inexistence or ineptitude of these instruments, but rather to the fact that they have not yet been effectively used and explored.
Brazilian Environmental Law has always promoted a series of “re-readings” of various and traditional instruments in order to make them able to face the peculiarities of environmental demands. The same adjustment can – more than that, must – be made with regard to climate change. As a result, the Brazilian environmental law already has instruments capable of successfully facing the climate crisis, especially in comparison to other countries. Here, we present the normative framework that already exists for environmental licensing, carefully selected so that it can be applied specifically to climate change, including, if necessary, through climate litigation.


Status:  completed.

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