PSB et al. v. Brazil (on Amazon Fund)

On June 5th, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission (ADI-O), before the Federal Supreme Court (STF), challenging the Federal government's alleged failure to adopt administrative measures concerning the Amazon Fund. The Amazon Fund, created by the Decree 6,527/08, has the objective of promoting projects that prevent or combat deforestation and finances actions for the Reduction of Emissions from Deforestation and Forest Degradation (REDD +) mechanism, under the UNFCCC. The plaintiffs claim that the fund has not approved any project since 2019, although resources are available and projects are awaiting technical analysis. They further allege that between 2019 and 2020, important mechanisms that allowed the functioning and management of the Amazon Fund were extinguished, namely: the Technical Committee of the Amazon Fund (CTFA), responsible for calculating deforestation and the amount of carbon emitted, and the Steering Committee of the Amazon Fund (COFA), the Fund's governance body. The plaintiffs rely on the common duty of the Federal Government, the States, the Federal District and the Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora” per the Federal Constitution of 1988, as well as the precautionary principle. They also allege a violation of Article 225 of the Federal Constitution, regarding the State's duties to: preserve and restore ecological processes; promote the ecological management of ecosystems; define territorial spaces and its components to be specially protected; and protect fauna and flora. The petition also seeks an injunction to require that Federal Union take the necessary administrative measures to reactivate the operation of the Amazon Fund. In June 2020 the Supreme Court admitted the lawsuit and requested the federal and state government actors involved to provide information related to: (i) the management and distribution of Fund resources; (ii) activities and projects linked to the Fund that have been implemented and suspended; (iii) data on the deforestation process observed in the Amazon region between 2013 and 2020; and (iv) contracts signed with international donors (Germany and Norway). The Public Attorney’s Office (Advocacia-Geral da União, AGU), in the defense of the Federal Government, presented a response stating that the ADI-O would not be a suitable instrument “for demonstrating discontent or disagreement with the content of government actions”. On June 26, 2020, the National Development Bank (BNDES), which manages the Amazon Fund, sent information about the resources and projects linked to it. Several NGOs were admitted as amicus curiae by Minister Rosa Weber. On October 23, 2020, Minister Rosa Weber held a public hearing to specify the arguments that underlie ADO 59, in addition to discussing the factual, statistical and normative contexts that permeate the protection and preservation of the Legal Amazon, through the Fund Amazon. On March 18, 2022, the minister and president of the STF, Luiz Fux, admitted seven environmental cases on the agenda for March 30, 2022 (including two climate cases, this case and ADPF760). This move by the STF is considered historical, and was called the "green agenda." On November 3, 2022, the STF determined that the federal government shall, within 60 days, adopt all of the administrative tasks necessary to reactivate the Amazon Fund. The court decided that the decrees that altered the functioning of the Fund and interrupted the funding of new projects were unconstitutional. The court further found that the unilateral extinction of the committee without creating a substituting body was an omission in the government's duty to protect the Amazon rainforest. On August 16, 2023, the Brazilian Supreme Court published the ruling of the case, partially granting the claim. As states, the court, by a majority, following the vote of Reporting Justice Rosa Weber, ordered the Federal Government to take measures to reactivate the Amazon Fund, within sixty days, and to refrain from engaging in omissive conduct that would paralyze the Fund's operation. The decrees that altered the Fund's governance and prevented the financing of new projects were declared unconstitutional, and the previous model is to be resumed. The paralysis of the Amazon Fund was considered an unconstitutional omission by the federal government and an offense to the principle of non-regression. The ruling emphasized that environmental preservation, especially in the Amazon, is an obligation imposed by the Federal Constitution and various international regulations to which the government is legally bound, reducing the space for administrative discretion. It was stated that there is an unconstitutional state of affairs in the Legal Amazon and a destructive and unstructured regulatory state in environmental matters in the region.