The 1988 law was among the pioneers in the wave of environmental constitutionalism, which began in the 1980s. It embraced the young legal environmentalism and inserted environmental protection into Brazilian constitutional identity. More than a rarefied political ideal, or mere legislative rule, it became a constitutional duty.
It still had no relevance on the national and international agenda when the Constitution committed itself to the “right to ecologically balanced” for “present and future generations” (art. 225). The constitutions of Ecuador and Bolivia, in the 2000s, went a little further by providing for rights to “good living” (sumak kausay) and nature (Pacha Mama).
It wasn’t just makeup to cover up the smoke. The bold constitutionalization of environmental values offered us a fundamental legal language for social mobilizations, legislative creation and the construction of an institutional building aimed at protecting the environment. The story of the country’s vanguard in environmental protection cannot be told without due credit to constitutional law.
This is the most obvious relationship that the Constitution has with the climate: the Brazilian State is obliged to implement public policies to mitigate and adapt to climate change. But there are deeper connections between the Brazilian constitutional project and the climate crisis.
First, the consequences of climate change could affect our ability to protect rights and freedoms. They do not only concern a balanced environment, but the conditions for the possibility of a dignified life and constitutional democracy. Not just future generations. And not just from subaltern populations, who historically pay much more dearly for our collective errors and perversities.
Second, combating climate change, a phenomenon that does not respect borders or sovereignty, requires the State to legally insert itself into global governance arrangements. States need institutional intelligence to coordinate. And if a State’s anti-environmental actions produce regional and global damage, those causing cross-border externalities need to submit to control and responsibility.
Perhaps there is no greater scientific, political and institutional challenge than this. Even more so at a historical moment where democratic and international governance infrastructure are under organized attack.
Within a few weeks it will begin to . COPs are the most important annual meeting for representatives of countries, civil society and economic power to negotiate the existential conditions of future life, be accountable for their performance and discuss who pays for what.
Brazil has many resources to lead the process and confirm itself as an environmental powerhouse. He arrives at the COP with some assets: a highly competent diplomatic team; team of economists dedicated to imagining instruments for remunerating the standing forest; reversal of deforestation; creation of the Tropical Forest Forever Facility, an innovative climate finance instrument.
But the Brazilian state also needs to be held accountable for the dangerous behaviors of the three Powers. In the coming weeks, we will address the anti-environmental liabilities on the tables of the government, Congress and the STF. The country cannot remain silent about them.
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