STF’s green agenda reinforces imbalance between powers

The prospect of voting on the so-called “green agenda” in the Federal Supreme Court (STF) reignites the discussion about the imbalance between powers in Brazil. Lawyers specializing in environmental law believe that actions related to the environment should not be handled by the judiciary. On February 21st, the five actions on the green agenda can be voted on.

The actions basically deal with two themes: deforestation and fires in the Amazon and Pantanal. The Direct Action of Unconstitutionality by Omission (ADO) 54 and the Claims of Non-compliance with Fundamental Precepts (ADPF) 760, 743, 746 and 857 were filed by left-wing parties during the government of former president Jair Bolsonaro (PL).

The trials of ADO 54 and ADPF 760, reported by minister Cármen Lúcia, began in 2022. The rapporteur’s vote in both cases judged the actions to recognize the “unconstitutional state of affairs regarding the illegal deforestation of the Amazon Forest” and determined that an effective execution plan for inspection and control be drawn up to combat irregularities. The other actions on the agenda are reported by minister André Mendonça and there is still no vote cast.

When minister Cármen Lúcia cast her vote, environmental organizations assessed the agenda as a sign that STF ministers would be willing to demand a response from the Executive to the alleged environmental problems faced by the country. WWF Brazil, an environmental non-governmental organization (NGO), even emphasized that these problems would have been “neglected” by the administration that came to an end in 2022.

For lawyers heard by the People’s GazetteHowever, the STF’s green agenda signals yet another “imbalance between powers” ​​and a case of judicial activism. “It is an initiative to judicialize public administration”, stated the lawyer specializing in environmental law, Antônio Fernando Pinheiro Pedro.

Analysts assess that green agenda actions are the result of judicial activism

The actions that make up the green agenda proposed by the president of the STF, Luís Roberto Barroso, were presented by Rede Sustentabilidade, the Brazilian Socialist Party (PSB) and the Workers’ Party (PT). In the assessment of the lawyer specializing in agrarian and environmental law applied to agribusiness, Paulo Roberto Kohl, “once again, the STF is provoked to decide on issues affecting the Executive Branch, and, ultimately, politics”.

For Kohl, the Constitution of Brazil and other environmental legislation are some of the most rigorous in the world and already have numerous command and control devices in environmental matters.

The lawyer and president of the Brazilian Institute of Law and Sustainability (Ibrades), Georges Humberto, highlighted the ideological bias of the agenda and the imbalance between powers generated by the actions. “The actions on the agenda, due to the nature of the process, are not typical to sanction or punish, but rather to declare something and indicate measures. In fact, they are the result of an amendment to the Constitution that, in my opinion, in an undemocratic way, granted true political and legislative power, atypical, to the judiciary, which creates an imbalance between powers and even the infamous activism of a power that must, as a matter of principle, be inert and impartial”, said Humberto.

AGU and MMA defend overcoming the environmental crisis based on the actions of the Lula government

Less than three months into Lula’s mandate, the Attorney General’s Office (AGU) and the Ministry of the Environment and Climate Change (MMA) asked the STF that the actions that make up the green agenda be considered overcome. The AGU substantiated the petitions by mentioning the issuing of President Lula’s decrees and highlighted the “substantial change in the federal government’s stance in relation to the environment”.

In December 2023, the AGU reinforced that the Union would be undertaking a series of efforts. In an oral argument made by the Union lawyer and director of the Strategic Monitoring Department of the General Secretariat for Litigation of the AGU, Leandro Peixoto Medeiros, emphasis was placed on “the profound change in the context found when the actions were filed, which would justify the judgment by the dismissal of the requests of the requesting parties”.

The Union’s lawyer also emphasized that environmental inspection actions by federal agencies had increased, varying between 111% and 260% in the number of infraction notices, embargoes, terms of seizure, terms of destruction and amounts of fines applied. Another argument cited concerns the order of the Union’s attorney general, who reviewed a previous understanding of the Brazilian Institute of the Environment and Renewable Natural Resources (Ibama), authorizing the collection of R$29 billion in environmental fines.

However, the effectiveness of the current government’s actions is also questioned by lawyers in the field. “The current government has done little or even made the situation worse, not because it is better or worse, but because it is complex and has been the object of mere and disgusting politicking in recent years, including at the international level”, said lawyer Georges Humberto. Among the points of worsening, Humberto cited the increase in deforestation in the Cerrado, in addition to fires and illegal mining in the Amazon, as well as the worsening situation of the Yanomami indigenous people.

Green agenda could affect Brazilian agribusiness

The lawyers heard by the People’s Gazette assess that the actions of the STF’s green agenda can have impacts, directly or indirectly, on Brazilian agribusiness. Lawyer Pinheiro Pedro highlighted ADPF 760, which cites the “destructuring of environmental policies promoted by the Bolsonaro government”.

For Pinheiro Pedro, the actions impact Brazilian agribusiness and could lead Brazil to a path adopted by European countries and which culminated in the recent farmers’ protests. “This is the resumption of an old plan, created in 2004, to combat deforestation and meet targets established by national legislation, assumed by Brazil on climate change”, explained the lawyer when referring to the Action Plan for Prevention and Control of Deforestation in the Legal Amazon (PPCDAm), created in Lula’s first term.

Lawyer Paulo Roberto Kohl also highlighted that environmental protection must be combined with the preservation of the right to property, free enterprise, due legal process and sustainable development. “If there is illegal activity on public lands, these must be combatted by existing legal mechanisms. However, what should not occur is a “witch hunt” without objectively established criteria”, said the lawyer.