The Human Right to a Clean, Healthy and Sustainable Environment in Brazil 4th Cycle of the Universal Periodic Review

Articulação dos Povos Indígenas do Brasil – APIB (Articulation of the Indigenous Peoples of Brazil) is a representative organization protecting the Rights of the Indigenous Peoples of Brazil. A national benchmark for the indigenous movement in Brazil, this grassroots Association was built from the bottom up. Gathering regional indigenous organizations together, its core purpose is to strengthen union among these peoples, building up links among different parts of Brazil and their indigenous organizations, in addition to mobilizing these people and their organizations against aggressive threats jeopardizing indigenous rights.

coming from Amazon deforestation 4 . This worsen global warming and reduce the availability of fertile land to produce diverse and essential crops for global food security.
The Fourth National Communication of Brazil to UNFCCC 5 demonstrates the perverse climate change effects regarding access to clean water and agriculture production. Between 1980 and2018 there was a reduction in the hydric availability in the country, and analysis of future scenarios indicate a 80% decrease in the productivity of soy, 51% decrease in the productivity of corn, 46% decrease in the productivity of wheat, among other products. Climate change has already had an adverse impact on the environment and will continue to do so even more drastically on people's life, health, and food security. To mitigate this catastrophic scenario, halting Amazon's deforestation is paramount. Changes in the use of land and soil for agriculture and cattle rearing are the main causes of Brazilian greenhouse gas emissions.
This report aims to evaluate the implementation of two recommendations adopted by Brazil in the third cycle of the UPR. Both relate to Amazon deforestation (described below). Moreover, organizations subscribing to this report propose new recommendations to be issued to Brazil, to promote the right to a clean, healthy and sustainable environment, which will consequently promote the right to life, health, and adequate food.

#55: Continue its efforts on the implementation of the National Policy on Climate
Change on reducing deforestation in the Amazon region.
#239: Speed up through executive action the processes of demarcation and protection of the lands of indigenous peoples and protect their respective rights.

Methodological note
The data used in this report related to Amazon deforestation and environmental degradation inside Indigenous Lands sourced from official data produced by the National Institute for Space Research in the Brazilian Ministry of Science and Technology. The Institute relies on two tools to monitor deforestation and environmental degradation in the Amazon.
The first one, Measurement of Deforestation by Remote Sensing -PRODES (Portuguese acronym), carries out satellite monitoring of clear-cut deforestation in the Amazon and has produced, 5 FEDERATIVE REPUBLIC OF BRAZIL. Fourth National Communication of Brazil to the UNFCCC. em: https://issuu.com/mctic/docs/quarta_comunicacao_nacional_brasil_unfccc. Available at: https://unfccc.int/sites/default/files/resource/4a%20Comunicacao%20Nacional.pdf (last seen: 23.03.2022). since 1988, annual deforestation rates in the region, which are used by the Brazilian government to establish public policies. Every mention of deforestation rates or "official data" in this report is based on PRODES data.
The second one, Deforestation Detection in Real Time -DETER (Portuguese acronym), is an alert tool for monitoring and controlling deforestation, especially for the Brazilian Amazon. DETER registers different types and levels of environmental degradation. It provided the evidence Instituto Socioambiental (Socio-environmental Institute) used to produce its analysis on environmental degradation inside Indigenous Lands.
Other data, such as the number of infractions issued by IBAMA; or budget spendings; were either gathered from governmental databases by civil society organizations; or produced by governmental institutions, such as the Controller-General. Civil society reports and/or official institutions' documents that provided the information quoted hereunder are duly mentioned in endnotes.

The rise in Amazon deforestation: recommendations 55 and 239 were not implemented
The National Policy on Climate Change -NPCC 6 determined that, by 2020, deforestation in the Amazon had to be decreased by 80% in relation to the average verified between 1996 and 2005 7 . It sets a maximum limit of 3.925 km² annual deforestation in 2020.
In 2017, the year the recommendation 55 was adopted, deforestation reached 6.947 km² (official data -please, refer to Methodological note above). To implement recommendation 55, Brazil was expected maximize its efforts to reduce this rate, reaching the goal established by the NPCC (3.925 km²).
However, this was not the case. Since 2018, deforestation has risen at exponential rates -year after year. According to official data, the total deforestation in 2018 was 7,536 km², in 2019 it climbed to 10,129 km², and in 2020 it increased to 10,851 km². This means that in 2020 the deforestation rates in the Amazon were over two times higher than they were allowed to be, according to the goal established by the NPCC. The difference was 6.926 km², an area twice the size of Luxembourg.
In 2021, the problem was worsened. According to official data, the deforestation rate in 2021 is estimated to have been 13.235 km² -an area over three times the threshold established by 7  NPCC, and almost two times higher than the deforestation rate in the year the recommendation was adopted (2017). The difference between 2021 estimated deforestation and the NPCC established goal for 2020 is about 9.310 km², an area the size of Cyprus. According to official data, the increase of deforestation in Protected Areas in the Amazon has never been so dramatic. In Conservation Units, deforestation reached 1,382 km 2 in 2021, the highest level since 2008. Since 2019, these rates have remained above 1,000 km², also the highest rates since 2008 (see graph below). Deforestation in Indigenous Land has drastically increased in the last few years (more information below). Conservation Units and Indigenous Lands are specific types of protected lands according to Brazilian Law. In most cases, the national legal framework bans deforestation in these areas. The increase of deforestation inside Conservation Units and Indigenous Lands constitutes evidence of failure in law enforcement. Public Authorities were supposed to protect these areas. However, they did not comply with their duty.
Therefore, not only did Brazil not make enough efforts to implement the NPCC goals on reducing deforestation in the Amazon, but it also did not act sufficiently to protect Indigenous Land, as granted by Brazilian Law. On the contrary, what has happened is a considerable reduction of public efforts to protect the biome.

Reasons for non-implementation: PPCDAm interruption and abandonment.
In order to reduce deforestation, the NPCC relies on a crucial element: The Action Plan to Prevent and Control Amazon Deforestation (PPCDAm -Portuguese acronym) 9 . The PPCDAm was a thorough and complex environmental based on quadrennial operational plans. Implemented in 2004, it was responsible for a relevant reduction in Amazon deforestation between 2006 and 2012 (see graph below). However, in 2019 this policy was interrupted and abandoned 10 . 10 Seven political parties and ten civil society organizations took legal actions asking the country's highest court to order the federal government to resume the PPCDAm, with the adoption of concrete measures to reduce deforestation in the Amazon, at compatible rates with the international commitments assumed by Brazil. The lawsuit is ongoing at the Federal Supreme Court, under identification ADPF 760. The entirety of the process can be found here: http://portal.stf.jus.br/processos/detalhe.asp?incidente=6049993. A summary of the case, in English, can be found here: http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/ 20201111_ADPF-760_application-1.pdf (last seen: 03.23. 2022). One day after the Vice President of the Republic admitted, on July 9, 2020, that the government had no plan to reduce deforestation, the "Plan for Control of Illegal Deforestation and Recovery of Native Vegetation 2020-2023" was announced. The document, however, has serious structural deficiencies. Firstly, it is not suitable to replace the PPCDAm, as it covers all biomes and is not specific to the Amazon. Moreover, it does not

The decline of Inspection activities.
More than 90% of deforestation in the Amazon is illegal 11 . To counter deforestation, the government must impede all illegal activities. This is the reason one of the key components of PPCDAm are environmental inspections, which encompass several activities, including the identification of illicit actions perpetrated by environmental wrongdoers and the enforcement of administrative penalties against them. Regarded as "essential to suppress environmental infractions and (...) their immediate effects" 12 , according to the official operational plan 2016-2020, environmental inspections have been substantially reduced in the past three years, even with the escalating deforestation during this period. This reduction does not contribute to countering deforestation or protecting Indigenous Lands. On the contrary, it encourages wrongdoers to act, stimulating further increase of deforestation. 12  have strategic guidelines; goals; actions defined for each goal; lines of action; schedule; skills distribution; articulations with actors other than the federal government (especially with state governments); resource sources; expected results; sources of resources or indicators for monitoring expected results. With only 25 pages, including cover, table of contents, references, etc., the document is a compilation of generalities. In an operational audit to assess the effectiveness of the measures adopted by the federal government to contain deforestation and fires in the Amazon, the Federal Audit Court identified a series of deficiencies in the aforementioned plan. It was also recognized that the PPCDAm did not guide the actions of the current federal government and that, in 2020, months went by without there being even a formal plan to combat deforestation in the Amazon. TC 038.045/2019-2. Available at: https://portal.tcu.gov.br/imprensa/noticias/aumento-do-desmatamento-e-reducao-na-aplicacao-de-sancoes-admin istrativas.htm (last seen: 23.03.2022).. "Infraction notices" are the first step in IBAMA's "penalty proceeding". They are official documents that identify illicit actions against the environment. They are also the starting point of an administrative procedure held by the federal agency to determine whether an individual or company is responsible for committing the identified infraction and what sanction will be imposed. During the "penalty proceeding" period, the alleged wrongdoer has the chance to defend itself.
According to official data gathered by the civil society organizations APIB, ISA, OC, Conectas, and others, the number of infraction notices issued by IBAMA (the federal environmental agency) dropped sharply. Notices related to illegal deforestation in the Amazon decreased 29% in 2019, and 46% in 2020, in comparison to 2018 13 .
In the context of the significant increase in deforestation rates, the sharp decline in infraction notices issued by IBAMA shows an extremely worrisome reduction in inspection activities to protect the Amazon rainforest against deforestation.
In a recent report, Observatório do Clima (Climate Observatory) concluded that from August 2020 to July 2021, the number of infraction notices to deforestation in the Amazon issued by IBAMA was the lowest in two decades and represented a drop of 40% in relation to the period of August 2017 and July 2018 14 . The graph below illustrates this situation and shows the correlation between the decrease in inspection and the increase of deforestation, in the past few years: 14 "If the data from January to December is considered, the negative record is repeated -the average in the three years of the Bolsonaro administration was 2,963 infraction notices for crimes against the flora in the nine states that make up the Legal Amazon, a number that is 40% lower than the average for the decade before to the current administration (4,864). Embargoes and seizures carried out by environmental inspectors in the Amazon also plummeted under Bolsonaro. In 2021, embargoes on rural properties dropped 70% compared to 2018, the last year of the Temer administration: 722 were registered in the Amazon, against 2,368 in 2018. The embargo is one of the most effective measures to combat deforestation, as it causes immediate economic restrictions to offenders. When his area is embargoed, the farmer is prevented from selling products derived from the place where the environmental damage occurred. In the case of seizures, there was a drop of 80% in the same periodthere were 452 in the Amazon in 2021, against 2,391 in 2018.". OBSERVATÓRIO   May 2021, almost all (98%) of the 1154 notices of infractions issued by IBAMA were put on holdthat is, after issuing the notice of infraction, IBAMA was not able proceed with "penalty proceeding". 17 In October 2019, Decree No. 9,760/2019 entered in force. This Decree amended IBAMA's "penalty proceeding" rules. 16 Lopes, Cristina L., João Mourão, Joana Chiavari, Clarissa Gandour. Conciliação Ambiental e Desmatamento na Amazônia Implicações e Desafios a partir de Evidências. Rio de Janeiro: Climate Policy Initiative e WWF-Brasil, 2021. Available at: https://wwfbr.awsassets.panda.org/downloads/pb_wwf_pt.pdf (last seen: 23.03.2022). 15 "The reduction in the number of fines is in line with the reduction in the number of IBAMA inspection operations scheduled for 2019. The retraction in IBAMA's command and control actions is in line with the aforementioned discontinuity in the coordination of policies to combat deforestation, which was the responsibility of the MMA and which is now experiencing a void: there is no government agency currently in charge of coordinating policies to combat deforestation. The withdrawal of all competences related to combating deforestation from the MMA is part of the weakeningof the Ministry's technical and political role since 2019." Available for download at: https://legis.senado.leg.br/sdleg-getter/documento/download/be24ff00-0608-4f8b-9d57-804c33097882 (last seen: 22.03.2022) The seventeen proceedings related to the most critical deforestation cases also remained on hold in the period. Considering these cases together, wrongdoers are accused of destroying more than 400 thousand hectares square of the Amazon rainforest. They are being charged with fines that, together, add more than R$ 380,000,000.00 (which is four times more than all the money spent by IBAMA in inspection activities in 2021 -IBAMA spent R$ 88,000,000.00 by December 2021 18 ). These interruptions in the "penalty proceedings" entail a serious failure in environmental inspection and law enforcement since wrongdoers are not duly trialed and sanctioned. They stimulated a widespread feeling of impunity, further encouraging wrongdoers to practice illegal deforestation. This diagnosis is supported by researchers from the Universidade Federal de Minas Gerais (Federal University of Minas Gerais), who identified that after 2019, 98% of the penalty proceedings from IBAMA related to environmental violations were put on hold 19 .
Although carrying out the inspection is not enough, it is clearly an essential step to halt deforestation in the Amazon and other biomes. Given the connection between Amazon deforestation and climate change, inspection is thus indispensable to prevent further climate change aggravation, as well as its dramatic consequences to basic human rights, such as life, wealth, and food security. Therefore, the subscribing organizations urge the following recommendations to be issued to Brazil:

# To prohibit any deforestation in the Amazon for at least five (5) years, with exceptions made for subsistence agriculture and practices of traditional populations, smallholder agriculture, sustainable forestry, works of public utility and national security issues. # To publish an annual report assessing the implementation climate change mitigation actions, according to the NPPC, based on objective indicators. # To elaborate and implement an effective plan to halt deforestation in the Amazon, designed upon thematic axes, strategic guidelines, objectives, priority actions, and expected results, and provide enough resources for its appropriate implementation.
19 "More than 2 years after the creation of the [environmental conciliation] nucleus, only 252 conciliation hearings were concluded, which represents less than 2% of the infraction notices carried out in the same period (26). This indicates that almost all infraction notices carried out between 2019 and 2020 are still suspended. Therefore, despite a great public effort (people, technology, budget) to implement this mechanism, the nucleus must generate few effective results, in addition to increasing the risk of statute of limitations, improper negotiations, and reducing the deterrence of infractions.". RAJÃO, Raoni, et

# To resume IBAMA's penalty proceedings of federal environmental infractions, issuing consistent sanctions against wrongdoers, and ensuring all procedure are completed in under 3 years 20 , especially the ones related to deforestation of large areas (more than 50 hectares).
# To make IBAMA's penalty proceeding rules more efficient and effective, and to improve IBAMA's operational capacity, so these proceedings can be concluded in three years at most.

Interruption of Amazon Fund operations and lack of funds to implement PPCDAm
The Amazon Fund is an international cooperation mechanism created with resources from international donations 21 . The Fund was created to finances projects to halt deforestation. Financial resources had to be allocated to projects aligned with the PPCDAm guidelines, which meant, projects that contributed to monitoring and combating deforestation, and promoting the conservation and sustainable use of the forest 22 .
For years the Amazon Fund was one of the main sources of funding for activities developed by public authorities and civil society organizations to protect the rainforest. As of today, the Fund has received R$ 3,3 billion 23 . Until 2018, financial resources allocated to projects added up to R$ 1.8 billion; and R$ 1.1billion was disbursed to a total of 103 projects 24 . In 2018, a major part of resources from the Amazon Fund (46%) was allocated to federal inspection and monitoring entities, such as IBAMA 25 .
However, in 2019 two important governance structures responsible for the Fund functioning terminated: the Technical Committee (TCFFA) and the Guidance Committee (GCFA) 26 . Since that 26 The Guidance Committee (COFA), was responsible for establishing guidelines and criteria for the application of Amazon Fund resources, monitoring information on the application of resources and approving the Amazon Fund Activities Report. It had a tripartite composition, with members of the federal government, subnational governments and civil society entities (business and non-business year, due to those changes in the governance system, all donors have stopped contributing to the Fund, and no new projects have been approved 27 . Between 2019 and 2021, only R$ 300 million were disbursed to ongoing projects that had received support in 2018, which represents an average of R$ 100 million per year. This is equivalent nearly half of disbursements made in 2017 (about R$ 220 million) and significantly less than disbursements in 2018 (about R$ 180 million) 28 .
The R$ 3.3 billion of donations received by the Fund generated further income which then raised the total amount to R$ 4,8 billion. Considering that R$ 1,8 billion was already allocated to projects, there are still R$ 3 billion available for new projects. This amount, however, is completely frozen, without any plans to be allocated and disbursed. The Amazon Fund Activity Report 2020 confirms this: "The total amount of resources to be invested in projects (97% of the total donations received + income generated over the years) is R$ 4,853 million, with R$ 1,825 million being allocated to projects under execution or concluded, of which R$ 1,304 million have already been disbursed" 29 .
According to the Senate Environmental Committee, considering the dramatic increase in Amazon deforestation rates, it is unacceptable that Amazon Fund assets are frozen. As reported in the Committee's National Policy evaluation concerning Climate Change: "The government seems to ignore that about 60% of the projects already supported by the Fund aim to assist governments at a federal, state, and municipal level, exactly in actions to strengthen the forest's public administration. It also ignores the fact that the Amazon Fund has been representing important complementation to IBAMA's reduced budget, including environmental inspections, and to support the National Center for the Prevention and Combat of Forest Fires (PrevFogo/PrevFire). Governors from the region have manifested in favor of continuing the fund operations and highlighted its importance. Even though, today, the Fund assets are frozen. There have not been any new projects supported since January 2019. As a result of the (Brazilian) government's posture, Amazon Fund's main donors -Germany and Norway -withdrew their donations to Brazil. (...) There are not, under any lens of analysis, acceptable reasons to abandon this revenue source, that's why we understand it is essential to immediately reactivate the Amazon Fund operations, as well as its Guidance Committee (COFA)" 30 .
Besides the Amazon Fund, the Ministry of the Environment, and its affiliated entities (such as IBAMA) have also suffered severe restrictions in budget and budget spending, since 2019especially on activities regarding the fight against Amazon deforestation. The General Controller's Considering the sharp increase in deforestation rates in the Amazon since 2018, these numbers provide a loud and clear sign: not enough money has been spent by the government to prevent deforestation.
The lack of budget to implement public policies, combined with the lack of expenditure of the available budget, have been prejudicial to the efforts against deforestation. Given the connection between Amazon deforestation and climate change, this failure violates the basic human right to a clean, healthy and sustainable environment. With this scenario in mind, the subscribing organizations suggest the following recommendations to be issued to Brazil as a matter of urgency:

# To resume the Amazon Fund's operations, as well as other funding mechanisms to promote the inspection, protection and sustainable use of the forest and its protected
areas.

# To immediately resume actions to halt illegal deforestation, by restoring the budget of the Ministry of the Environment (in updated values based on monetary correction), and
hiring staff for IBAMA, so the agency has the conditions, based on 2014 levels, to inspect and impose penalties against wrongdoers.

Deforestation and environmental degradation inside Indigenous Lands in the Amazon
Deforestation in the Amazon escalated in the last four years, and the increase of rainforest destruction inside Indigenous Lands is especially disturbing. According to official data gathered by Instituto Socioambiental (Socio-environmental Institute), deforestation inside Indigenous Lands increased 138% in the last three years (2019 to 2021) compared to the three previous years (2016 to 2018) 37 . In 2021 alone, deforestation impacted 155 Indigenous Lands, affecting 32,864 hectares (three times the size of Paris). This is equivalent to more than 18 million trees cut down.
According also to Instituto Socioambiental (Socio-environmental Institute), since 2019 illegal logging, mining and fires have increased 140% inside Indigenous Land. This happened due to the increase of illegal activities perpetrated by illegal gold miners, loggers, and land grabbers, who saw in the lack of punishment and inspection an opportunity for committing those crimes without facing any type of legal consequence: In 2021, over 55.000 hectares of Indigenous Land were deforested or suffered forest degradation, an area larger than Andorra. The table below shows the deforestation area inside the twenty most affected Indigenous Lands: 37 The report was produced for the purpose of basing the manifestation of APIB in a lawsuit (Arguição de Descumprimento de Preceito Fundamental -ADPF nº 709), in progress before the Federal Supreme Court, which deals with the indigenous peoples' right to life, health and territories, that were seriously affected by the  pandemic. The report is available at: https://acervo.socioambiental.org/sites/default/files/documents/prov0448_0.pdf (last seen: 03.22.2022).