The obligation to protect the stability of the climate system under the right to a healthy environment in Brazil

Although the American Convention on Human Rights and the Brazilian Constitution do not mention a human right to a stable climate or a healthy atmosphere, Brazilian courts have been developing a strand of jurisprudence that sees the protection of the stability of the climate system as an obligation derived from the human right to a healthy environment. This chapter explores how domestic courts in Brazil have been looking to the stability of the climate system through the lenses of human rights law. IEA v Brazil and PSB et al v Brazil (on Climate Fund) are the major cases analyzed in this chapter. In IEA v Brazil, a domestic court first elaborated on the obligation to protect the stability of the climate system as a necessary consequence deriving from the (subjective and objective) right to a healthy environment—despite emphasizing the autonomy of climate change-related harms in relation to other environmental harms. For its part, PSB et al v Brazil (on Climate Fund), delivered by the Federal Supreme Court further elaborated on the constitutional obligation to protect the stability of the climate system. In particular, the Federal Supreme Court qualified the Paris Agreement as part of the genre of human rights treaties for the purposes of Article 5(2) of the Brazilian Constitution. This reading is more than a mere technicality, since it provides the Paris Agreement with a supra-legal position in the Brazilian legal system, which for its turn allows courts to review national policies and statutory norms that risk achieving the goals set out in the UNFCCC or that risk damaging the stability of the climate system.