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State ADI 0820695-16.2024.8.22.0000 (Climate Governance in Rondônia) - judgment

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State ADI 0820695-16.2024.8.22.0000 (Climate Governance in Rondônia) - petition

Filing Year For Action

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.

State ADI 0820695-16.2024.8.22.0000 (Climate Governance in Rondônia)

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

A subsidy is a direct or indirect payment to individuals or businesses, typically provided as a government cash payment or a specific tax reduction.

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

People with different national or cultural traditions from the dominant population

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Actions or measures to adapt terrestrial systems to climate change.

Financial actors and resources that are primarily directed towards climate change mitigation, adaptation and compensation.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

Actions to adapt human health, healthcare systems and well-being to climate change.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Activities that relate to the production of goods and services from forests.

Actions and measures to adapt and increase resilience of societies and the economy to climate change.

Actions or measures to adapt freshwater systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

This sector involves the distribution, treatment, and conservation of water resources.

Dedicated pool of financial resources for climate-related projects.

A loan is a policy instrument where funds are provided to a borrower with the expectation of repaying the principal plus interest.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

State ADI 0820695-16.2024.8.22.0000 (Climate Governance in Rondônia) - judgment

Target

Policy instrument

Risk

Impacted group

Just transition

Greenhouse gas

Economic sector

Adaptation/resilience

Finance