The Federal Supreme Court (“STF”) will resume the judgment of five lawsuits related to the constitutionality of Law n. 12651/2012 (“Forest Code”) – Direct Unconstitutionality Actions n. 4901, 4902, 4903 and 4937; and Declaratory Action of Constitutionality n. 42 – on February 21, 2018. Reporting Justice Luiz Fux rendered his vote on a plenary session held in November, 2017, however the session was then suspended by request of Justice Carmen Lúcia, who claimed further time to analyze the case. In a nutshell, the lawsuits refer to the constitutionality of several articles of the Forest Code related to the reduction of environmental protection rules, including criteria for definition and delimitation of Areas of Permanent Protection (Áreas de Preservação Permanente – “APPs”) and Legal Reserves (Reservas Legais – “RLs”); the amnesty granted to landowners who damaged the environment; and the market potential for payment for environmental services.
The Reporting Justice acknowledged the constitutionality of 19 points, among 22 which were challenged. Within the points acknowledged constitutional, almost all articles related to new criteria for definition and delimitation of APPs and RLs were upheld, reducing the area under protection; within the points deemed unconstitutional, the amnesty granted to landowners who damaged the environment (particularly, the prohibition to convert pecuniary penalties into damage repair, under articles 59 and 60 of the Forest Code).
The judgment will resume and the remaining Justices are likely to uphold the vote rendered by Justice Fux. STF usually decides in a cohesive manner, and unanimous decisions are generally the rule. Within lawsuits related to the constitutionality of federal laws, around 75% of the decisions rendered in the last three decades were unanimous, regardless of the Justices who were part of the Court at the time. Regarding the lawsuits in which there were dissenting opinions, only in a fraction of them there was a real division of the Court (when the final decision is taken with a difference of one or two votes – OLIVEIRA, 2016). In the current composition of the Court, at least two thirds of the Justices constantly vote with the majority.
The Reporting Justice usually has a relevant impact on the outcome of the case, as it is usual for the remaining Justices to uphold his/her vote without even adding any comments. Regarding lawsuits related to the constitutionality of federal laws decided in the last three decades, the vote rendered by the Reporting Justice was uphold by the remaining Justices with no dissenting opinions in around 85% of the cases. Justice Fux is no different. When he acts as rapporteur in lawsuits of such nature, his votes are frequently upheld. Only in a small fraction of cases his vote ended up as the dissenting minority (OLIVEIRA, 2016).
When the Court splits up, decisions usually are preceded by intense debates among the Justices, what has not occurred so far. Some questions were indeed raised throughout the oral arguments rendered by the lawyers and the reading of the vote by the Reporting Justice, but they were clarified with no further objections.
STF´s political nature should also be taken into account. For long the Justices have been deciding according to their own political interests, generating critics that they no longer have been acting as unbiased judges. The rapporteur highlights two main concerns. Not only law-making activities should be preserved – emphasizing it took over a decade for the Code to be approved by the Congress and dozens of public hearings were hold to discuss it -, but also the national development, highlighting Brazil´s prominent role as food producer and referring to case law to point out that economic development could prevail in case of conflict with principles of environmental protection. Despite such arguments, it is widely known that the Forest Code reflects the interests of an extract of congressmen committed to agribusiness. Therefore, there are some signs that the rapporteur is in line with the agribusiness agenda, without any objection so far of the remaining Justices
Though the vote rendered by the Reporting Justice is likely to be upheld, it cannot be disregarded that Justice Carmen Lúcia could present a dissenting opinion on the forthcoming session, which could initiate debates on the case and could even persuade the remaining Justices to follow her lead and disregard the rapporteur´s opinion. The points under discussion are highly technical and the debates were intense among the parties throughout the proceedings. As Justice Carmen Lúcia requested further analysis of the case even before any other Justice had the opportunity to do so, some point could have caught her attention and she could opt to decide on it in a different manner. Nonetheless, in case she presents a dissenting opinion, it is most likely that it will be centered around minor changes and the outcome remains mostly as indicated so far.
Summing up, we understand that the remaining Justices are likely to uphold the vote rendered by the Reporting Justice, in line with agribusiness agenda. In case a dissenting opinion is submitted, it is likely to be a minority opinion and/or implicate minor changes that do not challenge the outcome as already presented by the Reporting Justice.
19 points were declared constitutional by the Reporting Justice, under protest from environmentalists who argue that the environmental protection under the Forest Code is reduced when compared to the former law on the subject, especially as to the criteria to definition and delimitation of APPs and RLs. The reduction of such areas may contribute to rising levels of deforestation and it could also threaten the future of the Amazon Fund.
The Amazon Fund is aimed at raising donations for investments in efforts to prevent, monitor and combat deforestation, as well as to promote the preservation and sustainable use of the Brazilian Amazon. The Fund has received around R$ 3,1 billion, from which over R$ 2,9 billion were donated by Norway. The main Norwegian concern is to contribute to the reduction of greenhouse gases, and, therefore, the donations are conditioned to the drop of deforestation levels in the Amazon. Nonetheless, the articles of the Forest Code that are questioned in the lawsuits could contribute to the rising of deforestation in such a biome.
The new criteria for definition and limitation of APPs and RLs decrease the total area under protection. Studies estimating the loss of vegetation have found alarming results. The text of article 61-A reduces the area protected by hydric APPs from 42.2 to 37.7 million hectares, therefore abdicating the protection of 4.5 million hectares. It reduces the Amazonian biome by 2%. The criteria of calculation provided by articles 13, 15 and 67, together, imply the reduction of RL areas from 203 to 167 million hectares. In the Amazon alone, the decrease is around 20% (GUIDOTTI; FREITAS; SPAROVEK, 2017).
Reduced areas of APP and RL pave the way for different land uses and it also contributes to global warming. The Forest Code is in force since 2012, and, from this time on, the emission of greenhouse gases coming from changes in the natural use of the land is rising – including activities such as using land for farming and deforestation (except in 2014 – PLATAFORMA SEEG, 2018). Despite inconstant numbers, deforestation levels in the Amazon rose in 2013, 2015 and 2016 (INSTITUTO NACIONAL DE PESQUISAS ESPACIAIS, 2018). In case STF does not acknowledges the unconstitutionality of the Forest Code, this negative scenario which damages the environment tends to prevail.
Norway has recently reinforced its commitment to maintain the donations to the Amazon Fund up to 2020, and, therefore, in a short-term trajectory, STF´s decision is not likely to have sweeping effects. However, the Norwegian government has also expressed some concern about the inconsistent levels of deforestation (REUTERS, 2017). The donation made in 2017 is almost half of the amount donated in 2016 (FUNDO AMAZONIA, 2018). Lower levels of deforestation announced in 2017 were a relief, but they may not indicate a long trend. After all, the levels of deforestation rose in three out of five years in which the Forest Code has been in force. Donations may even be ceased if deforestation levels return to rise as they did during 2015 and 2016.
In case the vote rendered by the Reporting Justice is upheld, especially on the new criteria for definition and delimitation of APPs and RLs, it will declare constitutional the loss of millions of hectares which should be under strong protection, what could contribute to rising numbers of deforestation. This scenario pushes away the main donor of the Amazon Fund and threatens its own survival. Remaining Justices could revert such a situation, but the trend is that the vote already rendered is likely to prevail. Dozens of projects financed by the Amazon Fund are in the hands of STF and the forecast is anything but positive.
FUNDO AMAZÔNIA. Total de Doações Recebidas pelo Fundo Amazônia. Disponível em: [http://www.fundoamazonia.gov.br/FundoAmazonia/fam/site_pt/Esquerdo/Doacoes]. Acesso em 6 fev. 2018.
GUIDOTTI, Vinicius; FREITAS, Flavio L. M.; SPAROVEK, Gerd; et. al. Números detalhados do Novo Código Florestal e suas implicações para os PRAs. Sustentabilidade em debate, n. 5, maio 2017.
INSTITUTO NACIONAL DE PESQUISAS ESPACIAIS – INPE. PRODES: Monitoramento de Floresta Amazônica por Satélite. Disponível em: [http://www.obt.inpe.br/prodes/dashboard/prodes-rates.html]. Acesso em 6 fev. 2018.
OLIVEIRA, Fabiana Luci de Oliveira. Quando a Corte se divide: coalizões majoritárias mínimas no Supremo Tribunal Federal. Ver. Direito & Práxis, v. 8, n. 3, 2017, p. 1863-1908.
PLATAFORMA SEEG. Emissões por setor: mudança de uso da terra e floresta. Disponível em: [http://plataforma.seeg.eco.br/sectors/mudanca-de-uso-da-terra-e-floresta]. Acesso em 6 fev. 2018.
REUTERS. Norway cuts forest protection payments to Brazil to $ 35 million. 23 de junho de 2017. Disponível em: [https://www.reuters.com/article/us-norway-brazil-amazon/norway-cuts-forest-protection-payments-to-brazil-to-35-million-idUSKBN19E1R2]. Acesso em 4 fev. 2018.
About the author
Natali Moreira holds a LLM in International and Comparative Dispute Resolution – Queen Mary, University of London.