Intergenerational Equity and Climate Protection: The Role of Brazilian Supreme Court Jurisprudence

The growing awareness of the progressive depletion of natural resources and the finite capacity of our planet to absorb the consequences of human activity casts a stark light upon the biosphere's ability to sustain both present and future life amidst the relentless incursions of mankind. This predicament, fraught with intergenerational tensions, calls for solutions that transcend conventional conceptions of justice. Against this backdrop, the principle of intergenerational equity emerges as an indispensable pillar of environmental preservation and sustainability, assuming a position of increasing prominence in the jurisprudence of the Brazilian Supreme Court.

In this regard, many legal systems have, if not fully embraced the tenets of ecocentrism and 'deep ecology', at the very least mitigated or expanded the traditionally anthropocentric perspective. Indeed, the recognition of legal—rather than merely moral—interests of the unborn, though still in its nascent stages, finds expression in international instruments and national constitutions alike, while the principle of intergenerational equity has become a well-established cornerstone of environmental law (Moreira, 2021).

The Constitutionalisation of Intergenerational Equity

In Brazil, the 1988 Constitution explicitly enshrines the principle of intergenerational equity in Article 225, stipulating that:

everyone has the right to an ecologically balanced environment, a common good essential to a healthy quality of life, and both public authorities and the community have a duty to defend and preserve it for present and future generations.

By virtue of this constitutional mandate, decisions concerning sustainability necessitate a nuanced evaluation of both direct and indirect costs and benefits, spanning short- and long-term horizons. Climate litigation has proven to be an essential instrument in this balance.

It should be noted that the Brazilian Supreme Court has consistently affirmed that the formulation and implementation of public climate policies fall primarily within the prerogative of the Legislative and Executive Branches (Case RE 410715). However, this does not preclude the role of the Judiciary in ecological and climate governance (Fensterseifer & Sarlet, 2019), nor does it bar judicial oversight of public policies in this domain—albeit in a subsidiary way, provided that such review adheres to the fundamental principles of the separation of powers and respects the institutional competencies inherent to each branch of government.

Juridicisation and Justiciability of the Climate Crisis

The movement toward the 'juridicisation' and 'constitutionalisation' of environmental protection has naturally extended to the imposition of duties to adopt climate protection measures. Thus, both the growing scientific consensus on the deleterious effects of anthropogenic climate change and the adoption of international agreements that acknowledge this reality and seek to mitigate global warming have profoundly shaped political and legal discourse.

The climate emergency has steadily ascended to the forefront of the international community's agenda and has become an inescapable concern within national legal frameworks. The imperative to adopt urgent measures to curb rising temperatures and mitigate their associated risks is no longer merely a political or ethical aspiration, but rather has crystallised into a set of legal and constitutional obligations imposed upon public authorities. Indeed, it has become 'justiciable': that is, it now affords individuals and entities the possibility of invoking judicial intervention and seeking redress before an impartial court for violations of rights linked to the protection of the climate system (Moreira, 2022).

"Through its landmark rulings, the Brazilian Judiciary has reinforced constitutional and international obligations related to climate governance, ensuring that sustainability and intergenerational equity remain binding legal imperatives rather than mere policy aspirations."

It is true that defining what constitutes a healthy climate, as well as determining the precise measures required to achieve such conditions, is fraught with indeterminacy, leaving ample discretion in the realm of decision-making by the political branches. However, the inherent vagueness of these concepts has never constituted an insurmountable barrier to the recognition of specific obligations or their judicial enforceability.

In the fluid and complex domain of environmental and climate law, judicial climate governance is fundamentally informed by open-textured legal concepts, guiding principles, and international instruments—all of which shape the evolving jurisprudential landscape and enable courts to adjudicate matters of climate justice within a legally coherent framework.

This certainly does not imply the suppression of other deliberative arenas, particularly the primary role of Parliament and the Executive in shaping public environmental and climate policies, nor does it diminish the indispensable function of international organisations in addressing the inherently transnational challenge of global warming. It remains essential to respect the institutional capacities and specialised expertise of each branch of government and each decision-making forum, ensuring that no single entity monopolises climate governance. Nevertheless, the Judiciary undeniably possesses a distinct and inherent role in safeguarding and enforcing the fundamental right to a stable climate.

Climate litigation inevitably provokes debate over the discretionary powers of administrative and political bodies in the formulation of public policies and decision-making concerning climate protection. It raises complex questions regarding the separation of powers, the proper scope of judicial intervention, and the extent of judicial deference that should be afforded to other institutions (Moreira & Wedy, 2022). At its core, this discussion grapples with the delicate balance between judicial oversight and institutional autonomy, testing the limits of the Judiciary's role in shaping climate governance while ensuring that public authorities fulfil their constitutional and international obligations.

The complexities of climate governance demand an approach that embraces contingency and dynamism in the judicial review of public administration, one that is attuned to the legal and political particularities of each jurisdiction. In this light, judicial intervention in climate governance should be neither rigid nor formulaic, but rather context-sensitive, guided by principles of subsidiarity, institutional competence, and legal pragmatism, so as to fortify, rather than supplant, the broader framework of environmental protection.

It must not be overlooked that the judge cannot supplant the administrator in making public policy choices. This ensures that the Judiciary grants due deference, where appropriate, to the decisions of bodies endowed with greater expertise, technical proficiency, or political legitimacy in a given domain. Such deference, however, must not be blind or uncritical. It requires a rigorous assessment of the factual and legal underpinnings of the decision under review, ensuring that judicial scrutiny is neither excessively intrusive nor unduly passive.

Next, we will undertake a closer examination of the landmark rulings issued by the Brazilian Supreme Court concerning climate policies and the principle of intergenerational equity.

The Decision on the Climate Fund

It is within this context of judicial climate governance that the analysis of Brazil's most significant climate dispute, ADPF 708, concerning the so-called 'Climate Fund' begins. In this landmark case, the Brazilian Supreme Court ruled that the Executive Branch has a constitutional duty to ensure the full operationalisation of the Climate Fund and to allocate its resources annually for climate change mitigation. (Brazilian Supreme Court, 1 July 2022). [Note: ADPF stands for 'Arguição de Descumprimento de Preceito Fundamental' (Claim of Non-compliance with a Fundamental Precept). It is a type of lawsuit that can be brought before the Supreme Court to complain of State action or omission violating a fundamental constitutional right.]

The Court anchored its decision in Articles 225 and 5(2) of the Constitution, which enshrine the principles of environmental protection and the prohibition of regression (proibição do retrocesso). The Court established that the revenues of the Climate Fund—legally earmarked for environmental protection—cannot be subject to contingency measures that would delay or obstruct their intended use.

This ruling solidified the State's obligation to adopt concrete and effective measures to restore and preserve the environment, reinforcing the constitutional imperative of intergenerational justice. In doing so, the Court affirmed the justiciability of climate rights, positioning itself as a key actor in ensuring compliance with Brazil's constitutional and international environmental commitments.

A pivotal aspect of this decision is the affirmation that the Government and elected representatives bear a constitutional, supra-legal, and legal duty to protect the environment and combat climate change. The ruling further establishes that international environmental treaties possess a supranational status, as they fall within the broader category of human rights treaties.

Protection of Brazilian Biomes: Amazon and Pantanal

In more recent cases, the Brazilian Supreme Court has progressively narrowed the scope of administrative discretion, imposing substantive constraints on the interests of present generations in favour of safeguarding the rights of future generations.

Such cases centre on the protection of two of Brazil's most vital biomes: the Amazon and the Pantanal. This judicial focus was bound to happen, given that land-use changes—primarily deforestation and wildfires—constitute the leading source of greenhouse gas emissions in Brazil. Beyond their role in exacerbating pollution, these destructive activities severely compromise the ability of native vegetation to function as carbon sinks, a function essential to mitigating climate change.

In the case concerning the Amazon Fund, the Supreme Court identified a regulatory omission in the State's fulfilment of its constitutional duty to protect the Amazon, ruling that the paralysis of the Fund constituted an unjustifiable environmental setback. Consequently, the Court ordered the reactivation of the Fund's governance mechanisms, condemning the dismantling of environmental policies that had previously been in place. The Court held that the Government's failure to implement adequate public policies for the protection of the Amazon, coupled with the institutional dismantling of existing environmental programmes, amounted to a normative omission in violation of Article 225(4) of the 1988 Constitution.

In another significant decision, the Supreme Court ruled that, while the current state of environmental policy for the protection of the Amazon biome does not yet reach the level of an unconstitutional state of affairs, there nonetheless exist structural deficiencies requiring urgent governmental action. The ruling acknowledged that a process of restoring constitutional compliance is underway, yet it emphasised the need for the Federal Government to assume a 'meaningful engagement' in combating illegal deforestation in the Amazon rainforest (Brazilian Supreme Federal Court, 28 April 2022).

In a similar pronouncement concerning the Amazon and the Pantanal, the Supreme Court determined that, while the current state of environmental protection policies for these biomes does not constitute an unconstitutional state of affairs, it nonetheless identifies critical shortcomings that necessitate immediate governmental action (Brazilian Supreme Court, 20 March 2024).

In a final case, specifically concerning the Pantanal biome, the Supreme Court recognised a legislative omission in the regulation of its protection and, as a corrective measure, ordered the National Congress to enact a law to establish the necessary legal framework for safeguarding this critical ecosystem (Brazilian Supreme Court, 6 June 2024).

Conclusion

The growing number of climate disputes worldwide underscores the increasing role of law in shaping and advancing more ambitious climate policies. This trend reflects a broader global movement in which judicial intervention has become a key mechanism for holding governments and corporations accountable for their climate commitments.

Within this context, Brazil has emerged as a prominent jurisdiction in the integration of environmental law and climate justice, with the Brazilian Supreme Court assuming a central role in balancing economic development with environmental preservation. Through its landmark rulings, the Brazilian Judiciary has reinforced constitutional and international obligations related to climate governance, ensuring that sustainability and intergenerational equity remain binding legal imperatives rather than mere policy aspirations.

By interpreting the Constitution in light of the climate emergency, the Brazilian Supreme Court not only strengthens fundamental rights but also affirms the Judiciary's role as a guardian of the future.

Reference List

Brazilian Supreme Court, ADO 63/MS, judgment Jun. 6, 2024.
Brazilian Supreme Court, ADPF 746, ADPF 857, judgment Mar. 20, 2024.
Brazilian Supreme Court, ADPF 760, ADO 54, judgment Mar. 14, 2024.
Brazilian Supreme Court, ADPF 708, Rapporteur Justice Luís Roberto Barroso, judgment July 1st, 2022.
Brazilian Supreme Federal Court, ADPF 651/DF, Rapporteur Justice Cármen Lúcia, judgment Apr. 28, 2022.
FENSTERSEIFER, Tiago; SARLET, Ingo Wolfgang (2019). Direito Constitucional Ecológico. 6. ed. Revista dos Tribunais.
MOREIRA, Rafael Martins Costa; WEDY, Gabriel (2022). O Controle Judicial das Políticas Públicas Climáticas. In: CAFRUNE, Marcelo; DERMMAM, Marina; MALDONADO, Emiliano (org.). Direitos da Natureza, Extrativismo e Litigância Climática. Editora da FURG, Rio Grande.
MOREIRA, Rafael Martins Costa (2021). Acordos ambientais e os limites do inegociável. Thoth, Londrina.

Authors:

Gabriel Wedy is a federal judge and a professor of the Graduate Programme at the School of Law at the Universidade do Vale do Rio dos Sinos (UNISINOS) and at the School of the Federal Judiciary (ESMAFE). Professor Wedy is a member of the World Commission on Environmental Law (IUCN-WCEL) and of the European Law Institute (ELI). He is a Vice-President of the Law for a Green Planet Institute (IDPV), and former President of the Association of Federal Judges of Brazil (AJUFE). He is a former Visiting Scholar at Columbia Law School (Sabin Center for Climate Change Law) and at Universität Heidelberg (Institut für deutsches und europäisches Verwaltungsrecht). He holds master's, doctoral and post-doctoral degrees in law. He is a co-author of the book Brazilian Environmental and Climate Change Law, which is due to be published by Springer in 2025.

Rafael Martins Costa Moreira is a federal judge in the 2nd Federal Court of Canoas. He is also a Professor of Environmental and Administrative Law at the School of the Federal Judiciary (ESMAFE) and at the Jusfederal School. He is the President of AJUFERGS (Association of Federal Judges of Rio Grande do Sul) for the 2020-2022 and 2024-2026 terms. He holds an RS master's degree (2016) and a PhD (2020) in Law from PUCRS (Pontifícia Universidade Católica do Rio Grande do Sul), with a visiting research period at Ruprecht Karls Universität Heidelberg, Germany. He is a co-author of the book Brazilian Environmental and Climate Change Law, to be published by Springer in 2025.