State ADI 0820695-16.2024.8.22.0000 (Climate Governance in Rondônia)

In December, 2024, the Public Prosecutor's Office of the State of Rondônia filed a state Direct Action of Unconstitutionality (ADI), with a request for a preliminary injunction, seeking a declaration of unconstitutionality of Articles 1 and 2 of State Law 5.868/2024, which amended State Law 4.437/2018, which establishes the State Policy on Climate Governance and Environmental Services (PGSA) and the State System for Climate Governance and Environmental Services (SGSA) in the state. It is alleged that the new law distorts the originally established model of climate governance by altering guidelines, implementation, and governance mechanisms, as well as management rules of the State Fund for Climate Governance and Environmental Services (FUNCLIMA). It is argued that the law is formally unconstitutional, as the state regulation exceeds the concurrent legislative competence in environmental matters, going beyond the limits of the supplementary legislative competence of the states by violating existing federal general regulations. It highlights that the contested law promotes significant centralisation in the SGSA, which would be incompatible with the National Policy on Climate Change (Federal Law 12.187/2009), based on the pillars of decentralisation and social participation. It is claimed that the law is incompatible with Federal Law 11.284/2006 (Public Forest Management) and Federal Law 13.123/2015 (Legal Framework for Biodiversity), as it does not provide essential safeguards for local communities and discourages their participation in conservation and sustainable development processes. It points out that the reduction of popular participation in state climate governance is incompatible with the fundamentals of climate and environmental justice. It argues that the rule is materially unconstitutional due to the reduction of civil society participation and the suppression of the deliberative nature of the Management Council, which centralizes decisions and the management of FUNCLIMA in the Secretariat of Environmental Development (SEDAM). It is alleged that such changes weaken social control and transparency and represent a socio-environmental setback by violating the principles of participatory democracy, democratic environmental participation, prevention and precaution, publicity and efficiency, and the prohibition of environmental regression, as well as the fundamental right to a balanced environment. In view of the risk of environmental and institutional damage, a precautionary measure is requested for the immediate suspension of the contested provisions and, on the merits, a definitive declaration of unconstitutionality of the amendments made to State Law 4.437/2018, including amendments to Articles 11, 15, 21, 24, 29, 41, 54, and additions to Article 38. The Court, by majority vote, ruled in favor of the action to declare the unconstitutionality of Articles 1 and 2 of State Law 5.868/2024, specifically concerning the amendments made to Article 11, caput and § 2; Article 15, § 3; Article 21; Article 24, § 1; Article 29, paragraph 5; Article 41, sole paragraph; Article 54, paragraph 2, as well as paragraphs 5 and 6 added to Article 38 of State Law 4.437/2018, in accordance with the dissenting opinion presented by Judge Alexandre Miguel. It established the following thesis: “It is unconstitutional, as it violates the principles of prohibition of environmental regression, democratic participation, and concurrent legislative competence, a state rule that centralizes environmental management and suppresses instances of deliberation and social control previously established by law.” Regarding formal unconstitutionality, the winning vote highlighted that the centralization of powers in SEDAM, which were previously collegial and participatory, contradicted general rules of the Federal Union (Federal Law 12.187/2009 - PNMC, Federal Law 11.284/2006 - Public Forest Management - and Federal Law 13.123/2015 - Biodiversity Framework) and transformed the Management Council into a merely formal body. It is understood that the concentration of the management of the Climate Fund in the exclusive sphere of the Executive Branch compromises the principles of publicity, morality, and administrative efficiency and that the exclusion of traditional communities and voluntary projects from the distribution of benefits violates the Federal Constitution and international commitments, such as ILO Convention 169 and the Escazú Agreement. Regarding material unconstitutionality, the vote pointed to the existence of a violation of the principle of prohibition of socio-environmental regression, since the new wording of the rule weakened participatory governance and reduced already consolidated guarantees. The dissenting opinion of Judge Miguel Monico Neto, who also disagreed with the rapporteur, highlighted the setbacks in climate governance in the state imposed by the contested legislative changes. He recognized the need to ensure the broad involvement of society, especially traditional communities vulnerable to the effects of climate change and biodiversity loss, in the establishment and revision of state policy on climate change. He asserted that the environmental and climate crises require ecological judicial governance guided, among other things, by the principles of prohibition of regression and progressivity.