THE AUTHOR:
Iuri Reis, Senior Associate at Machado Meyer Advogados
Climate change litigation is considered an important tool to reach the goals of reduction of greenhouse gas emissions established by the Paris Agreement (2015), as it “provides civil society, individuals and others with one possible avenue to address inadequate responses by governments and the private sector to the climate crisis. In climate cases, plaintiffs […], through a variety of legal strategies in a wide range of national and international jurisdictions, often seek to compel more ambitious mitigation and adaptation goals from the public and private sectors”.
While in the public sector some climate cases were able to compel states to adjust their environmental policy, in the private sector, climate change disputes not only have achieved the same result but can also generate negative firm value impacts that may vary between -0.41% and -5.9% in a multitude of sectors, which brings relevance to following up on how climate change litigation is progressing globally.
The best-known tool available to track climate change disputes worldwide is the Climate Change Litigation Databases coordinated by Columbia University’s Sabin Center for Climate Change Law. The Sabin Center has used databases to produce three climate change litigation reports for the United Nations in 2017, 2020, and 2023. The Grantham Research Institute on Climate Change and the Environment, established by the London School of Economics and Political Science, also uses the databases to produce yearly reports on climate change litigation since 2017.
Identifying climate change-related disputes, however, is not equally easy in all jurisdictions, which is why the databases are often retroactively updated with cases filed years or months ago that were just recently identified as being related to the subject. Moreover, the databases currently do not indicate when each case was included, so – as it will become more apparent when the Brazilian numbers are analysed –, it can be tricky to establish to what extent the change in numbers represents new cases that were filed or old cases that were identified.
The chart below was built through a combined analysis of:
- the databases’ current data, and
- the reports produced based on past versions of the databases shows the progression in number of climate change cases between the end of 2016, right after the Paris Agreement came into force, and the end of 2023:
| Changes in the Top-10 Climate Change Litigation Jurisdictions | |||||
| Jurisdiction | Cases in 31.12.2016 | Cases in 31.12.2023 | Growth | Rank in 2016 | Rank in 2023 |
| USA | 723 | 1688 | 133% | 1 | 1 |
| Australia | 101 | 134 | 33% | 2 | 2 |
| United Kingdom | 49 | 111 | 127% | 4 | 3 (ʌ1) |
| Brazil | 7 | 77 | 1,000% | 8 | 4 (ʌ4) |
| European Union | 52 | 69 | 33% | 3 | 5 (˅2) |
| Germany | 7 | 53 | 657% | 8 | 6 (ʌ2) |
| Canada | 15 | 38 | 153% | 6 | 7 (˅1) |
| New Zealand | 18 | 30 | 67% | 5 | 8 (˅3) |
| France | 4 | 28 | 600% | 10 | 9 (ʌ1) |
| Mexico | 0 | 21 | – | – | 10 (NR) |
| Spain | 14 | 17 | 21% | 7 | 11 (˅4) |
*As of 31 December 2023
As can be seen, even before the Paris Agreement came into force, the U.S. already had many climate change cases and continues to be the leader by a large margin. Moreover, four countries in the current top-10 have shown significant growth. Mexico did not have a climate change case at the end of 2016 and now has more than 20, while France and Germany have increased sixfold their number of cases approximately.
The most impressive growth, however, is observed in Brazil’s numbers. The country has increased its climate change-related disputes tenfold, elevating its position in number of disputes from the seventh to the fourth place. Brazil also went from having less than 1% of all disputes worldwide at the end of 2016 to currently being the jurisdiction for over 3% of the approximately 2,500 existing disputes – a number proportional to the country’s greenhouse gas emissions, which correspond to around 3% of the world’s 47.5 GtCO2e as per the most recent data.
Moreover, as shown by the Global Climate Litigation Report 2023 Status Review, only one year ago, at the end of 2022, Brazil had 30 climate change cases identified. The number corresponded to sixth place at the time and about 1.4% of the world’s climate change disputes, so most of the country’s progression as a hub for climate change litigation was indeed identified in 2023.
It must be said that the progression was identified, rather than that it has happened, in 2023 because a more detailed analysis of the cases reveals a significant backlog. Although the country went from 30 to 77 cases in 2023 (the Brazilian tab in the Sabin Center’sdatabase informs there are 79 cases, but two of them are repeated and therefore were only considered once), 10 cases were filed in 2023, which means that 37 out of the 47 cases identified in 2023 were actually filed in previous years:
| Climate change cases filed in Brazil each year (According to Sabin Center’s database) | |
| Year | No. of cases |
| 2007 | 1 |
| 2008 | 1 |
| 2010 | 2 |
| 2013 | 1 |
| 2014 | 1 |
| 2015 | 1 |
| 2016 | 1 |
| 2017 | 1 |
| 2018 | 6 |
| 2019 | 10 |
| 2020 | 19 |
| 2021 | 12 |
| 2022 | 11 |
| 2023 | 10 |
| Total | 77 |
*As of 31 December 2023
On the one hand, this may give the impression that the title of this post is misleading since 2020 was the actual year when Brazil had the most cases filed, and the country would still be fourth in number of cases even if the cases filed in 2022 and 2023 were disregarded. On the other hand, the cases identified in 2023 more than doubled the numbers known until 2022, and helped show that Brazil has consistently had ten or more climate change cases filed in each of the last five years.
It was the numbers that unfolded in 2023, therefore, that revealed how relevant of a hub for climate change litigation Brazil has become. Additionally, considering the backlog, the actual number of cases filed in 2022 and 2023 may be significantly higher shortly,.
Moreover, a closer analysis of some of those cases reveals exciting and relevant discussions. The most famous one is undoubtedly ADPF 708, one of the first known decisions to declare the Paris Agreement a human rights treaty. Many other interesting cases, such as ADPF 857, ADI 7438, and ADO 54, aim to protect Pantanal, Cerrado, and the Amazon biomes from deforestation. Brazilian natural biomes grant the country the post of the most biodiverse country in the world. Still, their deforestation is sponsible for approximately half of the country’s greenhouse gas emissions – the seventh highest globally –, therefore the relevance to this proceedings. Another interesting case that has the potential to be groundbreaking is ADI 6932, in which claimants allege that the conditions set forth for the privatization of a state-owned energy company (Eletrobras) are unconstitutional because they provide for mandatory construction of small hydroelectric power plants and natural gas thermoelectric plants, which allegedly violates the country’s commitments to reduce greenhouse gas emissions. There are also a few dozen cases filed by Brazilian authorities (i.e., public prosecutors and environmental agencies) against private entities, which are expected to set a precedent on the private sector’s duties towards the climate change agenda in Brazil.
In line with the relevance of climate change litigation mentioned in the first paragraph above and with its impact on firm value reported in the second paragraph, the continuous increase of climate change litigation in Brazil could be playing a positive role, as the country’s net emissions were reduced by 11% (or 1.7 GtCO2e) in 2022, compared to 2021 – although a detailed study to assess the correlation between the lawsuits and the reduction is required.
Concerning arbitrations, since Brazil is not a part of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (“ICSID Convention”) and does not have a single bilateral treaty providing for investment arbitration mechanisms in favour of investors, the fact that Brazil is utterly distant from the discussions on how climate change related investment arbitrations are being handled comes as no surprise. Regarding commercial arbitrations, Brazil does not have numbers on how many are related or could be related to climate change. Still, the latest report on commercial arbitration informed that the country had 1,116 ongoing cases in 2022. Although the exact numbers were not presented, construction and energy jointly represent the second area in most cases and the first in terms of the amount involved. Also, approximately 10% of the arbitrations initiated in 2021 and 2022 involved the Brazilian State or State entities, which resulted in approximately 65 commercial arbitrations.
Therefore, the number of arbitrations involving construction, energy, and the State, alongside the intense movement observed in the judiciary for climate change cases indicate a high probability that there are currently several climate change-related commercial arbitrations in Brazil.
As Brazil starts to experience more and more extreme weather events, and with climate change litigation on constant growth, studies digging deeper into the numbers and statistics for climate change-related commercial arbitrations are needed and expected for the near future.
ABOUT THE AUTHOR:
Iuri Reis is a Senior Associate at Machado Meyer Advogados in the International Arbitration and Commercial Litigation practice in São Paulo. He is a Brazilian qualified lawyer with 10+ years of experience in International Arbitration and Commercial Litigation. He previously worked at WilmerHale and Enyo Law LLP (London), and TozziniFreire Advogados (São Paulo). He has an LLM in Comparative International Disputes Resolution from Queen Mary University of London, a Law Degree and a Master’s Degree in Civil Law from PUC-SP, and Postgraduate Degrees in Business Law and Civil Procedure Law from FGV-SP.
