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The E-book "Climate Litigation in Brazil: Legal arguments for the Inclusion of the Climate Variable in Environmental Licensing" brings together the results of research developed throughout 2020 by the Law, Environment, and Justice Group in the Anthropocene (JUMA) with the support of of the Instituto Clima e Sociedade (iCS). The work demonstrates that there are already sufficient tools to require the consideration of the climate variable in environmental licensing in Brazil, and it is possible to resort to climate litigation to compel this change to environmental licensing. This research had three main categories of analysis: (i) Category A: a survey and analysis of federal, state and Federal District norms; (ii) Category B: a survey and analysis of Brazilian jurisprudence, and (iii) Category C: a survey and analysis of foreign reference cases.
In Category A’s survey and analysis of Brazilian legislation (federal, state and federal district) it was possible to identify the legal framework for the inclusion of the climate variable in environmental licensing. It was also possible to confirm that environmental licensing and the prior assessment of impacts are legal instruments able to face climate risk and the consequences of climate change. As a result, the existing regulatory framework, put together in a strategic and coherent way, can be applied specifically to the climate issue and, therefore, legally required through climate litigation.
Turning to Category B, an analysis of legal cases that could contribute to the construction/consolidation of the thesis that the climate variable must be considered in the environmental licensing verified that, although climate actions in Brazil are increasingly frequent and robust, the country's courts have not yet reached a consistent position on the consideration of the climate variable in environmental licensing. This was at least the scenario at the time of publication. The selected decisions deal with several topics related and applicable to the research theme, and solid arguments were identified for requiring preventive and punitive state action in defense of the climate as an integral part of the environment and as a fundamental human right.
Finally, to create Category C, the survey and critical analysis of foreign reference cases of climate litigation related to environmental licensing and climate, we identified cases that successfully called for the inclusion of the climate variable in the environmental licensing and environmental impact study.
Cases included both those where judges in some countries were reluctant to accept climate arguments, and those where legal arguments potentially applicable to the Brazilian context where made. The former should be considered just as much as the latter in the construction of climate cases in Brazil.
The main objective of this research was to identify specific and strategic foundations for preventive, mitigating and compensatory accountability for climate impacts in environmental licensing considerations and assessments of environmental impacts.
Link to the full publication:
http://www.editora.puc-rio.br/cgi/cgilua.exe/sys/start.htm?infoid=956&sid=3