“Biodiversity loss and poor management of natural resources have been linked to the emergence of infectious diseases”.

Alessandra Lehmen is an outstanding Environmental and Climate lawyer qualified in the US and Brazil. She has an LL.M. degree in Environmental Law and Policy from Stanford, a Ph.D. in International Law from UFRGS and an MBA from FGV. Alessandra is a Postdoctoral Laureate at the Make Our Planet Great Again Program of the Presidency of France. At Stanford, she was a Rising Environmental Leaders Fellow, a member of the Board of the International Law Society, and winner of the Olaus and Adolph Murie Award for best work in Environmental Law. She is also a recipient of the Lincoln Institute/Harvard Forest Conservation Catalysts Award. Alessandra has been consistently recognized as a leading global environmental lawyer by British publications PLC Which Lawyer and Euromoney Expert Guides.

Alessandra is a passionate musician. She is the vocalist and lyricist of alternative rock band Lautmusik and was an alto singer at the Stanford Symphonic Chorus.

PG: What is really happening to your forests?

AL: Unfortunately, the pace of deforestation is picking up. In 2020, according to the Global Forest Watch report, Brazil concentrated about 1.7 million hectares – more than a third of the surface of devastated virgin forests on the planet. According to Brazil’s National Institute for Space Research (INPE), the Amazon rainforest lost 11,088 square kms of land, the largest amount in the past 12 years. A recent survey by NGO Imazon Institute concluded that the Amazon had the highest rate of deforestation (810 square kms) in 10 years for the month of March. Also in 2020, the Brazilian and international press reported the tragic advance of fire in two of the most important biomes in the world, the Pantanal wetlands and the Amazon. Although this has fallen pretty much under the radar, fires also severely affected the Pampa biome, in the country’s Southernmost region.

In 2020, according to the Global Forest Watch report, Brazil concentrated about 1.7 million hectares – more than a third of the surface of devastated virgin forests on the planet.

This trend was catalyzed by a series of environmental setbacks. Those include the passing of more flexible forestry laws in 2012, the recent hampering of the Ministry of the Environment’s deforestation control and enforcement actions, lowering of climate ambition, and legislative action aiming at regularizing illegal grabbing of public forests as well as indigenous land. A recent report by Observatório do Clima, a network of environmental NGOs, finds that the Ministry of the Environment’s budget is the smallest in 21 years.

As a result, Brazil has been facing increased scrutiny and pressure from the international community. President Bolsonaro’s speech at the Leaders Climate Summit convened by President Biden was met with varying degrees of optimism and skepticism. Some have commended what was perceived as a change of tone and increase in commitments, such as the revival of the promise to stop illegal deforestation by 2030 (a goal that was already included in Brazil’s first NDC under the Paris Agreement, in 2016) and the indicative goal of carbon neutrality by 2050. Others, including US climate envoy John Kerry, welcomed the pledge but questioned whether the announced measures will actually be put into practice.

President Bolsonaro’s speech at the Leaders Climate Summit… was met with varying degrees of optimism and skepticism… US climate envoy John Kerry, welcomed the pledge but questioned whether the announced measures will actually be put into practice.

What I find particularly problematic is the apparent return of “demanding diplomacy”. After a decades-long effort to position itself as a self-sufficient mid-sized power, as well as a leader of environmental and climate multilateral efforts, Brazil’s current stance is a throwback of sorts to the old practice of conditioning action to the influx of international resources. The revised Brazilian NDC presented in 2020 mentions that at least US$10 billion per year will be needed to implement the pledges, and the government has been reiterating the call for the international community to pitch in.

International cooperation is important and does not need to happen at the expense of sovereignty, but I think conditioning our environmental and climate efforts to external funding is ill-advised and sends a twisted signal. Brazil has shown in the past that it has what it takes, in terms of institutional capabilities and governance framework, to fight deforestation. Putting a price tag on carbon neutrality is also at odds with the government’s failure (challenged in 2020 by means of two cases that are underway at the Brazilian Supreme Court) to adequately channel idle resources of the Amazon and Climate funds. Brazil is particularly well-positioned to become a leader of bioeconomy and low-carbon economy, but is losing momentum. This realization has been leading civil society, corporations, and subnational entities to organize their own movements and engage in paradiplomacy efforts.

PG: In what ways are the palm oil companies contributing to the damage?

AL: According to recent reporting by Mongabay, the Amazon state of Roraima has witnessed a surge in cultivation of oil palm in the last decade, driven by biofuel demand. The goal was to convert degraded grazing areas into palm oil plantations, providing small farmers with a sustainable source of income while blocking further deforestation and allowing local vegetation to regenerate. However, the report cites a surge in demand for cleared land in this region, incursions near and into indigenous lands (entailing a heightened risk of contamination of native populations with Covid-19), and water contamination by pesticides.This latter aspect was challenged in a lawsuit filed by the Public Prosecution Service in 2014, and awaits a decision on the merits. 

This is an interesting question. The issue is relatively less debated than deforestation associated with cattle and soybean production. It should, however, be on the radar – particularly considering the push for biofuels as a means of achieving climate goals.

PG: The Amazon rainforest is now a net contributor to warming of the planet?

AL: The study you refer to looked at the volume of CO2 absorbed and stored by the Brazilian portion of the Amazon from 2010 to 2019. The main conclusion, published in Nature Climate Change, is that it emitted 16.6bn tons of CO2 as a result of deforestation and degradation, and absorbed only 13.9bn tons as the forest grew. Also significantly, the research team – including France’s National Institute for Agronomic Research (INRA), the University of Oklahoma and the University of Exeter – found that degradation – that is, parts of the forest being damaged but not destroyed – accounted for three times more carbon loss than deforestation. These findings have important implications for public policy. As important as zero deforestation programs are, a bigger focus on degradation seems to be in order.

The main conclusion, published in Nature Climate Change, is that it emitted 16.6bn tons of CO2 as a result of deforestation and degradation, and absorbed only 13.9bn tons.

PG: As farms and pastures expand it is increasing the risk of another pandemic?

AL: Absolutely. Biodiversity loss and poor management of natural resources have been linked to the emergence of infectious diseases, which are often triggered by zoonotic outbreaks, for a few decades now. These factors ultimately place people in contact with a natural reservoir or host for an infection, either by increasing proximity – causing the virus to jump species – or by changing environmental conditions so as to favor an increased population of pathogens or their natural hosts. Climate change is clearly adding to the risks.

The IPCC Special Report on Climate Change and Land Use, released in 2019, states that human use directly affects more than 70 percent of the global, ice-free land surface, and that between a quarter and one-third of all land is utilized for food and energy production, which amounts to a 46 percent deforestation rate. The report also states that the impacts are reciprocal: land use contributes to climate change and climate change affects land. Degraded land becomes less productive, restricting the types of crops that can be grown, thus reducing the soil’s ability to absorb carbon. This exacerbates climate change, which in turn triggers land degradation in several significant ways, leading to increased proximity of humans to natural disease hosts.

PG: Do you see any hope in the form of ESG?

AL: I do. Deforestation of the Amazon is largely driven by the production of agricultural and livestock commodities, mainly cattle and soybeans. According to Imazon, more than 90% of deforestation is illegal, and a majority of the land is used for grazing. Climate change in Brazil is, in turn, extensively linked to land use and deforestation. The recent centrality of ESG has the potential to put additional spotlight on the Amazon, and to help steer businesses towards a more sustainable course. I envision two main paths for this to happen: enhanced control of the supply chain, including indirect suppliers (a central concern with regard to the meat industry), and increased scrutiny of the role of financial institutions.

Much of the commodities produced in the Amazon are exported. Tighter rules to halt imported deforestation and outsourced emissions resulting from the consumption of relevant external markets, such as the European Union, entail a greater likelihood of boycotts to Brazilian products. Currently, per the European Commission’s Communication on Stepping up EU Action to Protect and Restore the World’s Forests, a disproportionate 10% of the global share of deforestation is related to EU consumption. Deforestation has been a contentious theme in the EU-MERCOSUR Trade Agreement negotiations. Against this backdrop, monitoring, quantification and disclosure of supply chain emissions is likely to become front and center.

Tighter rules to halt imported deforestation and outsourced emissions resulting from the consumption of relevant external markets, such as the European Union, entail a greater likelihood of boycotts to Brazilian products.

Also significantly, as carbon prices in EUETS soar, there has been a surge in calls for a carbon border tax. The idea is also gaining ground in the US. Regardless of if, or when, we will move more decisively towards carbon pricing and carbon taxes (including border adjustment taxes), we need to prepare for the upcoming “carbon trade wars”, especially if the WTO is able to overcome the deadlock in the organization’s appellate body.

As for the financial sector, The Economist recently published a piece highlighting a study by the CDP, pointing out that only a minority of financial firms are acting. A quarter measure their financed emissions, and almost half conduct no climate-related analysis on their portfolios. However, the oversight of financing of high-impact projects is on the rise – the Brazilian Central Bank has recently launched three public consultations, on the sustainability criteria applicable to rural credit, on regulation of risk management and social, environmental and climate responsibility, and on the annual disclosure, by financial institutions, of a standardized Social, Environmental and Climate Risks and Opportunities Report (the GRSAC Report), respectively. I believe redirecting the money pipeline is key to reversing the course of deforestation.

PG: What role does litigation play here?

AL: I believe litigation plays a key role in this scenario. Companies are increasingly subject to binding ESG obligations. It is possible to anticipate new types of strategic litigation that challenge compliance with said obligations, or, when a corporation appears as the plaintiff, the obligations themselves. Against this backdrop, I also anticipate that strategic litigation will undergo a shift from catch-all rights-based concepts to more granular ESG arguments, such as exposure to stranded assets, climate resilience stress tests in different global warming scenarios, impact investment, and the financing of projects with ESG and climate-related implications.

Another relevant trend concerns transnational ESG litigation. Examples include claims challenging pollution and emissions outsourcing, supply chain disputes spanning multiple jurisdictions, and disputes under trade agreements.

Another relevant trend concerns transnational ESG litigation. Examples include claims challenging pollution and emissions outsourcing, supply chain disputes spanning multiple jurisdictions, and disputes under trade agreements. Outsourcing and supply chain claims target entities that are relatively cleaner in their countries of origin, but are major polluters, or source supplies that are produced unsustainably, in other jurisdictions (e.g. the Total, EDF and Casino cases, based on the French Duty of Vigilance Act of 2017, challenging activities in Uganda, Mexico, and Brazil and Colombia, respectively). Multilateral and bilateral trade agreements increasingly involve sensitive and potentially contentious environmental issues, such as carbon trade barriers and deforestation associated with production of export goods.

PG: Do you see any respite coming in the form of Ecocide laws?

AL: The 2016 policy paper by the ICC Office of the Prosecutor, stating that it would consider the prosecution of environmental cases, has been rightly hailed as a landmark move. It could mean that crimes associated with mass land grabbing can amount to crimes against humanity under the Rome Statute. Could this expand ICC jurisdiction to encompass ecocide? No, as this would depend on the amendment of the Rome Statute, but the policy paper has served the purpose to fuel the debate on the prosecution of international environmental crimes and on the possible conceptualization of a crime of ecocide.

The Environmental Crimes Law, if passed, it will introduce the crime of ecocide in Brazilian law... Ecocide has also made its way into France’s new climate law, which passed the first vote in parliament on May 4.

In the wake of the Mariana and Brumadinho tragedies, in Brazil, Bill nr. 2,787/19 was proposed in order to amend Law nr. 9,605/98 (the Environmental Crimes Law). If passed, it will introduce the crime of ecocide in Brazilian law. The proposed wording defines ecocide as “an ecological disaster by atmospheric, water, or soil contamination, significant destruction of flora or slaughter of animals, which generates a state of public calamity”. Ecocide has also made its way into France’s new climate law, which passed the first vote in parliament on May 4.

PG: Many thanks Alessandra for demystifying all the complex issues facing Brazil and the interconnections with the rest of the world. Wishing you the very best in your endeavours.