Main features of Brazil’s national policy on climate change

As mentioned before, law 12.187 of 2009 sets Brazil’s emissions reduction target and establishes principles, objectives, and instruments of the National Policy on Climate Change (PNMC). Some principles were directly mentioned in the legal text⁵⁴ and shall be observed during the implementation of the PNMC such as the

‘precaution-50 ICLEI, ‘Em documento internacional, empresários brasileiros pedem acordo climático que favoreça eco-nomia de baixo carbono’, International Council for Local Environmental Initiatives (ICLEI), São Paulo 21.10.09, available at <http://www.iclei.org> (visited 30 October 2009).

51 Observatório do Clima, supra note 43.

52 Ibid.

53 According to Juliana Russar, most of Brazilian NGOs began to pay more attention to climate change discussions after the implementation of the Kyoto Protocol in 2005 and the publication of the Fourth Assessment Report of the IPCC in 2007. See Juliana Russar, Panorama de atores e iniciativas no Brasil sobre mudanças do clima (Vitae Civilis, 2008) at 27.

54 Art. 3 of law 12,187 of 2009.

ary principle’,⁵⁵ the ‘preventive principle’,⁵⁶ the ‘citizen participation principle’,⁵⁷ the

‘sustainable development principle’,⁵⁸ and the ‘principle of common but differenti-ated responsibilities’.

Article 3 of law 12.187 of 2009 adds that the measures adopted shall consider the different socio-economic contexts and distribute the financial burden across eco-nomic sectors and populations in an equitable and balanced way. Sustainable devel-opment is considered a central point in the measures to address climate change, seen as an important objective to be achieved. Consistent with this idea, during the state-ment at the high-level ministerial segstate-ment of COP16, the Brazilian Minister for the Environment, Izabella Teixeira, reiterated the country’s commitment to promote sustainable development and argued that economic growth, social justice and envi-ronmental protection can be a development strategy, making reference to Brazil’s economic growth and the decrease in poverty and in deforestation rates in the last year.⁵⁹

Article 7 of the National Policy refers to five institutional instruments to support its goals, which are:

I the Interministerial Committee on Climate Change, created to guide the development, the implementation, the monitoring and the evaluation of the National Plan on Climate Change⁶⁰;

55 The principle 15 of the Rio Declaration on Environment and Development (UN Declaration on Envi-ronment and Development, Rio de Janeiro, 14 June 1992, UN Doc. A/CONF.151/5/Rev.1 (1992), 31 International Legal Materials (1992) 876.) stresses that ‘in order to protect the environment, the precau-tionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postpon-ing cost-effective measures to prevent environmental degradation’. Considerpostpon-ing Brazil’s legislation, this principle is expressly stated in several decrees, such as Decree 5.591 of 2005, Decree 5.472 of 2005, Decree 5.377 of 2005 and so forth.

56 ‘The preventive principle requires action to be taken at an early stage and, if possible, before damage has actually occurred’ and, moreover, ‘the preventive approach has been endorsed, directly or indirectly, by the 1972 Stockholm Declaration [principles 6, 7, 15, 18, and 24], the 1978 UNEP Draft Principles [principle 1] and the 1982 World Charter for Nature’. See Philippe Sands, Principles of International Environmental Law (Cambridge University Press, 2003) at 246–247.

57 Art. 225 of Brazil’s Federal Constitution clearly states that everyone has the right to live in an ecologi-cally balanced environment, but also has the duty to defend and preserve it for present and future gen-erations. The importance of public participation in environmental issues was stressed during the Earth Summit in 1992, being considered one of the key instruments for achieving the goals of the Agenda 21 (Agenda 21, UN Conference on Environment and Development, Rio de Janeiro, 13 June 1992, UN Doc.

A/CONF.151/26/Rev.1 (1992)). See Natascha Trennepohl, Manual de Direito Ambiental (Impetus, 2010) at 16.

58 Philippe Sands states that ‘the term “sustainable development” is generally considered to have been coined by the 1987 Brundtland Report, which defined it as “the development that meets the needs of the present without compromising the ability of future generations to meet their own needs’” and that ‘there can be little doubt that the concept of “sustainable development” has entered the corpus of international custom-ary law, requiring different streams of international law to be treated in an integrated manner’. See Philippe Sands, supra note 56, at 253–254.

59 Statement of Ms. Izabella Teixeira, Minister for the Environment of Brazil to the General Debate of COP-16, available at <http://unfccc.int/statements/items/5777.php> (visited 13 December 2010).

60 The Committee was established by Decree 6.263 of 21 November 2007.

II the Interministerial Commission on Global Climate Change, previously mentioned as Brazil’s Designated National Authority;

III the Brazilian Forum on Climate Change, also previously mentioned;

IV the Brazilian Network of Research on Global Climate Change (called Rede CLIMA for short), created to produce and disseminate knowledge and tech-nology related to climate change issues, as well as to produce data to support Brazilian diplomacy in international negotiations;⁶¹ and

V the Meteorology, Climatology and Hydrology Activity Coordination Com-mission, created to coordinate, monitor and contribute to the evaluation of activities in these fields.

In addition, Art. 6 of law 12.187 of 2009 lists eighteen instruments that can be used to implement the policy goals, including the National Plan on Climate Change; the National Fund on Climate Change; action plans designed to prevent and control deforestation; resolutions of the Interministerial Commission on Global Climate Change; fiscal measures; allocation of specific federal sums; financial and economic mechanisms already listed in the UNFCCC and in the Kyoto Protocol; the establish-ment of preferential criteria in public calls for tenders, namely public-private partner-ships, authorizations, permits, and concessions to explore public services, for propos-als that provide GHG emissions reduction and offer the best options for saving energy, water, and natural resources; the use of inventories, assessment and any oth-er surveys on GHG emissions; as well as the establishment of environmental stand-ards and verifiable targets for reducing anthropogenic emissions of GHGs.

One of these instruments, namely the National Fund on Climate Change⁶² (Fundo Nacional sobre Mudança do Clima or FNMC), is expected to play an important role in financing mitigation and adaptation measures. Law 12.114 of 2009 states that revenue for this new fund shall come from various sources, such as contributions from national and international organizations, loans from financial institutions, al-locations in the annual federal budget, and designated sums in agreements or con-tracts signed with governmental bodies. It is also mentioned that up to 60 per cent of the amount received by the Ministry of Environment from oil exploitation shall be sent to the climate fund.⁶³ It should not be forgotten that Brazil has discovered large quantities of deepwater oil reserves (estimated at more than 30 billion barrels) and intends to explore them in the next few years.⁶⁴ In attempting to estimate the amount of money that would be received by the climate fund, the former Minister

61 For more information see ‘Rede CLIMA’ at <http://www.ccst.inpe.br/redeclima/> (visited 18 February 2011).

62 The FNMC was established by law 12,114 of 2009 and is regulated by Decree 7,343 of 2010.

63 Previously, in cases of large volumes of oil production or high profitability, contracts of exploitation could establish an additional payment to the government, of which 10 per cent would be sent to the Ministry of Environment to be used in the recovery of environmental damages caused by the oil industry. How-ever, the PNMC included projects to prevent GHG emissions, as well as mitigation and adaptation measures, in the list of activities for which this allocation can be used.

64 Juan Forero, ‘Brazil Girds for Massive Offshore Oil Extraction: State-run Petrobras is Poised to Become a Major Global Player’, Washington Post, 7 December 2009.

of Environment said that the initial sum of public money to be sent to the FNMC may reach an average of one billion Brazilian reais per year (approximately 560 mil-lion dollars).⁶⁵ So far, the Fund has two hundred million Brazilian reais (approxi-mately 114 million dollars) for investments in 2011.⁶⁶ However, the FNMC is not the only source of funding for mitigation and adaptation measures.

Due to the close connection between Brazilian GHG emissions and deforestation,⁶⁷ the Amazon Fund⁶⁸ is also an important financial source. Donations made to the Amazon Fund might be used in preventing, monitoring, and implementing other initiatives against deforestation of Brazilian forests. The fund has received 110 mil-lion dollars from the Norwegian government and annual donations from this govern-ment are expected until 2015. Additionally, during COP16, the German Develop-ment Bank (KfW) signed a contract with the Fund’s manager (the Brazilian Development Bank – BNDES) to donate 18 million euros (approximately 30 million dollars).⁶⁹ At the time of writing, there are six projects receiving ongoing resources from the Amazon Fund, mostly in activities to support the conservation and the sustainable use of the forest and the biodiversity.⁷⁰

In order to achieve the reduction target indicated in the National Policy and a low-carbon economy in the country, a sectoral approach has been chosen. Thus, sectoral plans, currently under elaboration by the government and expected to be discussed with the society and interested sectors through public consultation meetings,⁷¹ shall indicate initiatives related to energy, agriculture, transport, mining, healthcare serv-ices, the chemical industry, the construction industry, the paper and pulp industry, and so forth. Decree 7.390 of 2010 provided the first five sectoral plans, focused on avoiding deforestation in the Amazon region and in the Cerrado Lands; expanding

65 See Sistema de Proteção da Amazônia (SIPAM), ‘Projetos Aprovados Pelo Fundo Amazônia vão Recupe-rar Áreas Degradadas’, at <http://www.sipam.gov.br> (visited 30 June 2010).

66 Portal Brasil, ‘Fundo Clima e Fundo Amazônia’, at <http://www.brasil.gov.br> (visited 13 December 2010).

67 According to Brazil’s Second Communication to the UNFCCC, CO2 emissions in 2005 in the country reached the amount of 1.6Gt, of which 77 per cent came from land use change and forest. See Brasília Ministério da Ciência e Tecnologia, Segunda Comunicação Nacional do Brasil à Convenção-Quadro das Nações Unidas sobre Mudança do Clima (2010) at 15.

68 The Amazon Fund was established in 2008, aiming to raise funds to support projects focused on preven-tion and avoidance of deforestapreven-tion in the Amazon region. See ‘Fundo Amazonia’, at <http://www.fun-doamazonia.gov.br> (visited 25 February 2011).

69 BNDS, ‘BNDES e banco alemão KFW assinam contrato de US$ 30.6 milhões para o Fundo Amazônia’, available at <http://www.fundoamazonia.gov.br> (visited 12 December 2010).

70 As of December 2010. See Fundo Amazonia, ‘Carteira de Projetos’, available at <http://www.fundo ama-zonia.gov.br> (visited 12 December 2010).

71 See para. 1 of Art. 4 of Decree 7.390 of 2010. It can be added that during the annual meeting of the FBMC with the Brazilian President in October 2010, the representative of the Climate Observatory and the FBOMS stressed the importance of the participation of civil society in the elaboration process of the sectoral plans, arguing that some working groups were more open to receiving suggestions than others.

For more information, see Luiz Pinguelli Rosa, ‘Reunião Anual’, supra note 19.

investments in the energy sector; and focused on reducing emissions from agriculture and steel plants.⁷²

The use of the sectoral targets as parameters for the Brazilian Market for Emissions Reduction (MBRE) is also mentioned in Decree 7.390 of 2010. Actually, law 12.187 of 2009 stressed the importance of the carbon market in the country and stated that the National Policy on Climate Change shall encourage the development of the MBRE.⁷³ However, the aforementioned law simply refers to the need for developing the carbon market in the country (article 4) and that the MBRE shall be operated in

‘commodities, futures and stock exchanges, and in over-the-counter trading compa-nies’ (Art. 9).