Climate litigation and administrative control in the context of environmental governance: lessons from the ADPF 708 case at the STF in connection with the role of the Brazilian Office of the Comptroller General

Abstract

Climate change is a challenge of our time. There is progressive awareness that human action has been decisive for climate change. This assumption grounds on historical and scientific data, which have been
incorporated by international politics and law. From a legal perspective, tackling this challenge involves administrative control and judicial review in order to improve environmental governance. They must seek institutional improvement, the protection of fundamental rights and the implementation of adequate climate policies. This paper investigates the positive interrelationship between administrative control (emphasizing the role of the Brazilian Office of the Comptroller General – CGU) and judicial review (emphasizing the case law – ADPF 708 case – of the Brazilian Federal Supreme Court – STF), in terms of learning processes and institutional improvement.
The paper questions in which ways the administrative failures identified by the case law regarding the implementation of climate policies could provide learning processes and institutional improvement for the proper function of the Public Administration in terms of administrative control (including the CGU  administrative control). It assumes that climate litigation decisions offer important guidelines as inputs for the administrative control, in terms of learning processes and institutional improvement, exercised by the administrative bodies responsible for implementing climate policies. The paper argues that the ADPF 708 case is not only an example of climate litigation in Brazil’s constitutional jurisdiction, but it is also illustrative as a case that provides guidelines that should be adopted and internalized by administrative action. A legal-dogmatic and deductive methodology is used, adopting descriptive, qualitative, and essentially  bibliographic research. The paper adopts theoretical and conceptual premises related to climate litigation, related to administrative control and judicial review, related to institutional learning processes and improvement, as well as related to collaborative, integrative state action. In conclusion, the paper argues that ADPF 708 case law is an example of climate litigation, which assumes characteristics of structural litigation, which provides important parameters and guidelines for administrative control (in terms of efficiency, integrity, and institutional improvement) in the framework of climate policies, and which can foster monitoring plans and continued joint action between judicial and administrative controls, also in the CGU’s institutional field of action and  administrative control. Nonetheless, given the limited scoped of this research, a more concrete assessment of these mentioned possibilities requires further research steps based on the initial discussion provided here.