Litígios climáticos brasileiros e deferênciaa modulação do controle judicial sobre a regulação climática

Resumo

The climate crisis has shifted to the courts part of the choices about the pace and the means of climate regulation, within a regulatory State whose governance has become polycentric. Neither Brazilian case law nor the Brazilian literature, however, offers a stabilizing theory of decision-making postures for allocating institutional competence in climate litigation, so that debates between activism and deference sometimes take place without premises and without a method of application. In this context, the research problem of this dissertation is how a theory of deference can guide the posture of decision-makers in Brazilian climate litigation that takes place under non-ideal conditions. The object is the judicial review of State climate regulation, understood broadly and exercised by a plurality of administrative structures, sectors and federative levels. The theoretical framework rests on authors who explore normative uncertainty and comparative institutional analysis, examining the relations between regulatory governance, institutions and justice. Because it aims to be pragmatic, this dissertation takes second-best theory as its premise of non-ideality, the theory of second-order reasons as its logical structure, through the distinction between exclusionary and calibrating reasons, and the theory of applicative normative postulates, combined with the argumentation theory of presumption and burden, as its normative form. The research method is analytical, normative and empirically oriented, and combines literature review, doctrinal analysis, U.S. and Canadian comparative law and the construction of a database of arguments in Brazilian climate litigation, with the coding of defence arguments and judicial decisions. It is argued that institutionally justified deference is neither a substantive principle nor a rule of outcome, but an applicative normative postulate of authority allocation: as a postulate, it guides the application of rules on competence, reasoned justification, proportionality and review; as a presumption, it assigns initial weight to the primary judgment where there is an institutional second-order reason, calibrating rather than exclusionary; and, as a presumption, it allows that weight to be displaced by legal, epistemic or procedural reasons. Its scope is bounded by the distinction between a scientific-normative floor, not subject to relativization, and a regulatory zone of choice, a boundary that operates symmetrically, regardless of whether the litigant argues for greater or lesser climate ambition. The work is organized into three chapters, devoted to the regulatory governance of the climate, to climate litigation and to the theories of deference. Applying the theory to the cases yields a methodological itinerary of calibrated deference, procedural and satisficing in character. The findings indicate that judicial restraint is invoked recurrently but rarely justified. It is concluded that deference, as postulate and presumption, does not state which climate policy is best: it indicates who should formulate a given judgment, under which conditions, with which justificatory burden and under which intensity of review, and, if properly applied by the courts, tends to induce a virtuous competition for institutional capacity that preserves the regulators’ spheres of authority.

Ficha do documento

Tipo

Tese

Ano

2026

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/40930

Temas

GovernançaMeio Ambiente

Palavras-chave

Direito da regulaçãoLitigância climáticaRegulação climáticaControle judicialDeferênciaLaw and regulationClimate litigationClimate regulationJudicial reviewDeferenceDireitoDireito ambientalDeferência (Direito)Governança -BrasilMudanças climáticas