Climate Rights in Brazil and the United States: A Convergence in Contrasts

Abstract

This article argues that jurisprudential developments in the United States and Brazil show that rights-based lawsuits to vindicate a right to a stable or healthy climate—that is, to “climate rights”— have potential to play an important interstitial role in addressing climate pollution in both countries—despite a world of differences in judicial systems, procedures, and traditions.

We offer three takeaways. First is the utility of rights-based approaches to climate change. As evidence of climate change grows, international and domestic law are rushing to keep pace. Second is the value of borrowing. Courts look and listen to other courts. As the political processes at both domestic and international levels have failed to protect against climate change, whether by action or inaction, a growing number of courts—led by those in Brazil, the United States, and elsewhere—have tried to catalyze more robust and effective government responses. Last is implementation. Without a strategy for operationalizing these legal tools, they are pointless. The article suggests that Public Ministers in Brazil can play a unique role in enforcing climate rights, including by bringing rights-based constitutional claims against carbon majors for damages under mechanisms that appear to be sui generis.