Gabrielle Tabares Fagundez, Master's degree in law (MSc) and postgraduate student at the Law Faculty, and member of the Environmental Justice Observatory, Federal University of Santa Catarina.
Letícia Albuquerque, Professor at Law Faculty and the Cofounder and Codirector of the Environmental Justice Observatory, Federal University of Santa Catarina.
Isabele Bruna Barbieri, Law PhD, and lawyer and researcher of the Environmental Justice Observatory, the Federal University of Santa Catarina, Brazil.
Marcelo Pretto Mosmann, Master’s degree in law (MSc), and lawyer and member of the Environmental Justice Observatory, Federal University of Santa Catarina, Brazil.
This research on environmental conflicts and ecological law in Brazil is linked to the Ecological Justice Clinic, which is a project to encourage the practice of ecological law at the Law School, at the Federal University of Santa Catarina.
The Clinic began in 2018 and has five sub-areas of action: democratic participation; health and pesticides; biodiversity and protected spaces; animal rights and climate litigation. The activities of the clinic consist in promoting access to information about the mentioned areas through debates, courses and workshops for undergraduate students. Thus, the clinic aims to inform and empower, legally and politically, the citizens to face the violation of socio-environmental rights caused by public or private enterprises authorized by official institutions, in the local, regional, national, and also international dimensions.
In addition to activities aimed at promoting access to information and training students, the clinic has the objective of joining as amicus curiae in lawsuits facing situations of disrespect to fundamental rights and non-compliance with Brazilian legislation regarding the areas in which the clinic operates. The criteria for the selection of legal cases are the location and the severity of the disrespect to rights, with preference given to the most serious cases in the State of Santa Catarina. In this way, the PhD students work together with undergraduate students to find solutions and support NGOs in the defense of human rights and the environment. In general, the community does not participate in legal cases proposed by public prosecution, so the clinic acts to represent NGOs in these legal cases to give voice to the community, to ensure spaces of democracy, representation, and participation.
This brief post seeks to clarify the role of the clinic in the situation of environmental injustice present in Brazil, in which social movements, traditional communities and indigenous peoples need to fight against the suppression and violation of rights. The policy adopted by the Brazilian government today is characterized by being neo-extractivist and does not conform to the norms of the Brazilian Constitution and international laws, and the current scenario is characterized by socio-environmental regression.
The right to an ecologically balanced environment is considered a fundamental right in the Brazilian Constitution. The Constitution introduces, in addition to an economic dimension, an ethical commitment to the community of life, both for present and future generations, and a systemic view of the environment, that is, the environment is perceived as something essential for all forms of life and not just as an economic resource for human beings.
However, the process of redemocratization and constitutionalization of the environment did not change the developmental model adopted by the military during the dictatorial period (1964-1985). Redemocratization is the process of restoring democracy and the rule of law in countries or regions that went through a period of authoritarianism or dictatorship. Therefore, this process occurred after the military dictatorship, a period in which the development model completely ignored environmental aspects, far from a sustainable development model.
During the dictatorship, an "economic miracle" occurred between 1968 and 1973. There was an exponential growth of Brazil, which grew about 10% per year, and reached, in 1973, a record mark of Gross Domestic Product (GDP), which increased 14%. The economic growth, related to the entry of foreign capital and the development of the industrial park, is associated with an intense environmental degradation, with an exponential increase in noise, air, soil and water pollution (SANZ, 2017).
Occurred the process of redemocratization and constitutionalization of the environment, environmental protection was elevated to the constitutional sphere, but the scenario of social and environmental injustices has not reduced. On the contrary, the number of socio-environmental conflicts is increasing.
Concerning biodiversity, we have many problems, issues linked with the destruction of ecosystems and animal habitat. Pollution and deforestation cause a lot of damage to the lives of animals. It is important to mention that 1 million species are going extinct all over the world due to habitat loss and global warming. And that number keeps growing (ROCKSTRÖM et al., 2009; TOLLEFSON, 2019).
There are more than 1,399 animals native to Brazil threatened with extinction in 2022. The number of endangered species has doubled in eight years, with 701 animals entering the list in 2022. As for the flora, there are 3,209 plant species threatened with extinction in the country today (BRASIL, 2022).
We can see that, due to global warming, we are experiencing the sixth mass extinction on Earth, in addition to a huge socio-ecological damage to traditional communities of fishermen, collectors and other segments adapted to an intrinsic relationship with nature (KOLBERT, 2015). This is why protection of ecosystems, its biodiversity and resilience - especially in protected areas - has gained a relevant space in the Ecological Justice Clinic.
Beyond that, we have several discussions about health and pesticides. Brazil is one of the biggest consumers of pesticides in the world, a situation that is worsened by the regression scenario. In the period from 2019 to 2021, 1550 new pesticides have been approved (HESS, 2022). In addition, Brazil is the largest consumer of banned pesticides, with those that were banned in the EU now being exported to our country.
Finally, we have the situation of climate litigation. Climate change litigation is an umbrella term encompassing disputes that relate to climate change (such as mitigation and adaptation measures), as well as litigation to catalyze legal, policy and social change on the issue of climate change (MALLET; NAGRA, 2020).
In Brazil, litigation against the government is gaining momentum, as can be seen by a recent case brought against the Ministry of Environment and the Brazilian Federal Government. A week before the Climate Change Conference in Glasgow, a public civil action was settled by 70 NGOs led by the Brazilian Climate Observatory. In the action, the NGOs claim that the current Brazilian National Policy on Climate Change, determined by Law nº 12.187/2009, is not able to respond to the present climate crisis. In this sense, they demand an update of the policy with the inclusion of new commitments capable of cooperating in the opposition against climate change.
Overall, Brazil has modern environmental legislation, although implementation problems. Activism plays a relevant role in the enforcement of the legislation, by proposing leading cases in the Supreme Court. The Ecological Justice Clinic contributes to this activism, acting in some cases.
In the face of these socio-environmental conflicts, the clinic chooses areas in which to act and in which it seeks to contribute with the participation and representation of communities in actions proposed by the Public Ministry, acting as amicus curiae in these legal actions.
For instance, the Ecological Justice Clinic prepared an amicus curiaerequest on behalf of civil society organizations in ADI 5385, which deals with the recategorization of the Serra do Tabuleiro State Park, which is the largest fully protected conservation unit in the State of Santa Catarina and a biodiversity hotspot. The Serra do Tabuleiro Park represents an important area for maintaining fauna and flora, with the presence of endangered, rare, and endemic species. Approximately 47 species of flora threatened to some degree can be found within the Park. Regarding fauna, research has recorded approximately 300 species of birds, 48 species of amphibians, 59 species of reptiles and more than 80 species of wild mammals, of which 15 are considered endangered (PARQUE ESTADUAL DA SERRA DO TABULEIRO, 2022).
In 2009, the State of Santa Catarina passed the Law n. 14.661/2009 redefining the Park's boundaries, and admits human occupation and allows the exploration of certain activities in this new area. Thus, in 2015, the Attorney General at the time proposed a ADI, against the recategorization of the Park. The ADI 5385 has been followed by the clinic in an attempt to ensure the participation of civil society in protecting the environment as well as teaching law students how to conduct claims for human rights violations (SANTA CATARINA, 2019; CONSERVATION INTERNATIONAL, 2005; BARBIERI; ALBUQUERQUE, 2021; UFSC, 2018).
In 2019, the clinic worked with the case of the Southern Right whales' nursery, bringing the scientific knowledge produced at the Federal University of Santa Catarina closer to the civil courts. The clinic provided an opinion that pointed out the damages of the release of the activity of embarked whale watching tourism for the reproduction and behavior of mothers and calves of the whale species Eubalaena australis.
In 2022, the clinic participated in a lawsuit about the large use of pesticides in rice fields in the area near the Serra do Tabuleiro State Park, where there is one of the most important water sources for the Santa Catarina coast region. The clinic advocated for the possibility that the community can make an agroecological transition to rice production, thus reducing chemical contamination of natural resources and the drinking water that supplies the population.
The Brazilian development model continues to be guided by a logic of exclusion and predation, without considering minimum parameters of respect for human rights and the environment, especially in relation to communities outside the dominant system. The Ecological Justice Clinic acts in the defense of these vulnerable groups.
Reference List:
BARBIERI, I. B.; ALBUQUERQUE, L. A importância dos instrumentos jurídicos no caso de conflitos socioambientais: o amicus curiae e a ação direta de inconstitucionalidade acerca da recategorização da unidade de conservação da Serra do Tabuleiro. REVISTA DE DIREITO AMBIENTAL, v. 101, p. 167-190, 2021.
BRASIL. Comissão Nacional de Biodiversidade. Resolução Conabio 08/2021. Available at: https://www.gov.br/mma/pt-br/assuntos/biodiversidade/comissao-nacional-da-biodiversidade/resolucoes-conabio-vigentes-1. Accessed at: 08 may 2022.
CONSERVATION INTERNATIONAL. Hostspot Revisitados. Available at: https://www.conservation.org/docs/default-source/brasil/HotspotsRevisitados.pdf. 2005?. Accessed at: 08 mar. 2022.
HESS, Sonia Corina. Parecer Técnico n. 01/2022: Avaliação técnica dos agrotóxicos registrados no Brasil, com ênfase no período entre 01 de janeiro e 31 de dezembro de 2021. Florianópolis, 2022.
KOLBERT, Elizabeth. The Sixth Extinction: An Unnatural History. Henry Holt, 2015.
MALLET, Daisy; NAGRA, Sati. Climate change litigation – what is it and what to expect? King & Wood Mallesons, 27 feb. 2020. Available at: https://www.kwm.com/au/en/insights/latest-thinking/climate-change-litigation-what-is-it-and-what-to-expect.htmlAccessed at: 27 feb. 2020.
PARQUE ESTADUAL DA SERRA DO TABULEIRO, 2022. Biodiversidade. Available at: https://www.parqueestadualdaserradotabuleiro.com/biodiversidade. Accessed at: 08 may 2022.
UFSC. Notícias da UFSC. Pesquisadores da UFSC se mobilizam pela preservação da Serra do Tabuleiro. 2018. Available at: https://noticias.ufsc.br/2018/11/pesquisadores-da-ufsc-se-mobilizam-pela-preservacao-do-parque-estadual-da-serra-do-tabuleiro/. Accessed at: : 08 mar. 2022.
ROCKSTRÖM, J. et al. A safe operating space for humanity. In: Nature, vol. 461, p. 472–475. 2009. Available at: https://www.nature.com/articles/461472a.pdf. Accessed at: 09 mar. 2022.
SANTA CATARINA. Instituto do Meio Ambiente de Santa Catarina. Parque Estadual da Serra do Tabuleiro. 2019. Available at:: https://www.ima.sc.gov.br/index.php/biodiversidade/unidades-de-conservacao/parque-estadual-da-serra-do-tabuleiro.Accessed at:08 mar. 2022.
SANZ, 2017. O lado obscuro do ‘milagre econômico’ da ditadura: o boom da desigualdade. Available at:https://brasil.elpais.com/brasil/2017/09/29/economia/1506721812_344807.html. Accessed at: 08 may 2022.
TOLLEFSON, J. Humans are driving one million species to extinction, 2019. Nature. doi:10.1038/d41586-019-01448-4.Available at: https://www.nature.com/articles/d41586-019-01448-4. Accessed at: 09 mar. 2022.
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