The Amazon Is Burning—Is Paris, Too? A Comparative Analysis between the United States and Brazil Based on the Paris Agreement on Climate Change

Abstract

On November 4, 2019, the United States confirmed its withdrawal from the Paris Agreement on Climate Change. The Agreement, which is often cited as the only effective institutional solution to climate change, has been judged an overall success. As such, the United States’ withdrawal was a contentious topic, even within the Trump administration. Criticism ensued, both domestically and abroad, after it was announced. Despite this backlash, then-presidential candidate Bolsonaro threatened to mimic President Trump’s decision to withdraw. For the moment, President Bolsonaro has limited himself to following President Trump’s anti-regulatory policies on environmental issues. These polices will make Brazil unlikely to meet its nationally determined contributions (NDCs). Considering that both presidents were singled out for blocking environmental actions at 2019's United Nations Summit on Global Climate Negotiations, this Article presents a comparison of the policy choices of the United States and Brazil regarding the Paris Agreement. The baseline for comparison is the period beginning when the Agreement entered into force (2016), until late 2019, when the United States officially notified its withdrawal. This Article also discusses the impact of clauses in the Brazilian Constitution of 1988 that protect the environment vis-à-vis the silence of its U.S. counterpart. It contrasts the U.S. and Brazilian constitutional experiences, focusing on current litigation involving the Paris Agreement and articulating this unique analysis in light of the constitutional design literature.

The examination presented herein fills a void in the international environmental law literature, because, to date, no studies comparing the policies of the United States and Brazil with regard to the Paris Agreement have been published. This research is particularly relevant now, as global carbon dioxide (CO2) emissions are poised to increase again in 2020. This scenario further advances interest in the United States’ withdrawal from the Agreement and related deregulatory measures. Likewise, it increases interest in Brazilian anti-environmental policies, including the conflicting commitment to zero deforestation by 2030 and the recent Amazon fires, which became a full-blown international crisis.

The comprehensive analysis developed in this Article offers relevant insights for the literature on climate change. It demonstrates that the United States’ withdrawal from the Agreement and related deregulatory policies, as well as current Brazilian actions, are detrimental to climate governance and may jeopardize the goals of the Paris Agreement. Nonetheless, findings from this analysis indicate that the inclusion of environmental protections in national constitutions has a meaningful impact on advancing such protections, as Brazil remained in the Agreement and its courts have served as an important check on the Executive’s deregulatory agenda. The analysis also advances trending topics on U.S. climate litigation. The findings demonstrate that, given the silence of the U.S. Constitution on environmental matters and the decades-long congressional inertia on climate issues, an effective way to update the U.S. constitutional text will be through judicial review. As the comparative analysis of litigation concerning the Paris Agreement in the United States unveiled in this Article shows, standing is a major barrier to judicial review on climate change claims. Accordingly, this Article includes a recommendation for the flexibilization of the traditional standing requirements in order for the United States to achieve effective environmental protection and related mitigation of greenhouse gas (GHG) emissions.

Keywords: Climate Change, Paris Agreement, Brazil, United States, International Energy Law, Comparative Law, Comparative Constitutional Design, Climate Litigation, Law and Economics

JEL Classification: K32, K33, O38