El Niño and the legal failure of the system
When the State uses alleged unpredictability to ignore scientifically mapped climate tragedies, institutional catastrophe replaces natural catastrophe.
(Article adapted from the original published on 07/02/2026 in Le Monde Diplomatique Brasil).
Dear readers,
Last July, alongside Professor Talden Farias, I published an analysis in Le Monde Diplomatique Brasil on how state inertia transforms climate warnings into institutional tragedies. A few weeks after publication, the occurrence of devastating tornadoes and gales in Rio Grande do Sul and Paraná proved this scenario in the worst possible way: the climate emergency has ceased to be an abstraction of the future to become a routine of damage in the present. Below I share the updated and expanded version of our essay, reconnected to the extreme events that unfortunately continue to hit the country.
Happy reading!
The El Niño climate phenomenon consolidated over Brazilian territory in the first half of 2026 and tends to intensify in the coming months. Meteorological forecasts converge on an observation that no longer allows for scientific controversy: according to the most recent bulletin from the Climate Prediction Center of the U.S. agency NOAA (National Oceanic and Atmospheric Administration), the alert has already been issued, projecting the escalation of the phenomenon to a moderate or strong level throughout the second half of 2026, persisting during the period of highest climate intensity in the Southern Hemisphere.
What science predicted in computer models has turned into scenes of destruction in Southern Brazil, where the occurrence of tornadoes and supercell storms in Rio Grande do Sul, Santa Catarina, and Paraná lays bare the new dynamics of climate extremes in the country
Risk areas are mapped with cartographic precision, hydrological effects are anticipated by sophisticated computer models, and vulnerable populations remain, tragically, right where they have always been: waiting for the next catastrophe that government inaction insists on allowing.
In this scenario, state omission in the face of a foretold climate disaster transforms a phenomenon of nature into a human legal and institutional failure. This gap does not stem from the unpredictability of the climate; on the contrary, it is a dilemma generated—and invariably aggravated—by the calculated inertia of those who, by mandate and public interest, hold the power-duty to act. Omission can no longer be camouflaged under the cloak of technical uncertainty; the State, by monopolizing risk management, attracts to itself responsibility for every damaging event that was, totally or partially, preventable.
The end of the political and legal myth of “force majeure”
Historically, the rhetoric of “fortuitous event” or “force majeure” was the perfect shield invoked to exempt the State from responsibility for socio-environmental tragedies. Today, this thesis has lost legal support in light of the irrefutable advance of predictability. Tornadoes and microbursts in Paraná and Rio Grande do Sul are not geographical "bad luck" or isolated, "cyclical" natural episodes; they are the direct symptom of a warmer and more energy-charged atmosphere, as Climate Science studies warn.
The Federal Constitution of 1988 imposed on public authorities and the community the duty to protect and preserve the environment for present and future generations. Later, Law 12,608/2012, a milestone of the National Protection and Civil Defense Policy, was explicit in requiring public authorities to identify and map risk areas, produce early warnings, and execute contingency plans before disaster knocks on the door. This framework aligns with the vast international climate literature, including reports from the Intergovernmental Panel on Climate Change (IPCC), which warn how the natural variability of El Niño in 2026, acting upon a warmer and more energy-charged atmosphere, drastically amplifies the frequency and intensity of extreme climate events.
On the normative level, Brazilian law has already overcome its reactive phase that treated floods, landslides, and droughts as “inevitable” fatalities of nature. What is required now is an active stance on planning, land-use management, and preventive relocation. When public administration is aware of the danger, has the budget and advanced technology to address it, and yet crosses its arms, disaster is not a matter of chance. It is the product of an immoral political choice and a legally blameworthy act.
As specialized literature on the limits of the precautionary principle warns—notably studies by Cass Sunstein—precaution and prevention have ceased to operate as mere theoretical guidelines. They have become objective parameters for controlling public managers' discretion. Prior scientific knowledge eliminates the “zone of uncertainty” that would justify inaction; in the face of concrete data, action is not a choice, but a duty under penalty of liability.
The new global paradigm and the “budget of death”
This inertia, condemnable under domestic law, takes on contours of international unlawfulness when confronted with recent guidelines from global courts. In a landmark advisory opinion issued in mid-2025, the International Court of Justice (ICJ) affirmed that the customary duty to prevent significant environmental harm applies directly to the protection of the planetary climate system. The ICJ consolidated the standard of “stringent due diligence,” requiring governments to abandon rhetoric and act proactively.
Along the same lines, the Inter-American Court of Human Rights, in its advisory opinion on Climate Emergency (made public in July 2025), consolidated the standard of “heightened due diligence.” For the inter-American tribunal, abstract goals on paper are not enough; the State must carry out exhaustive risk assessments and adopt measures that ensure the protection of human life. This is no longer merely an obligation of means pure and simple, but one increasingly tied to the desired and intrinsic result, shattering the formalist view that drafting shelved plans is sufficient.
However, the cycle that dominates risk and disaster management in Brazil obeys a perverse logic, institutionalized as state policy: massive resources are only released after infrastructure collapses and body counts are taken. World Bank studies and reports from the United Nations Office for Disaster Risk Reduction (UNDRR) demonstrate that, in Latin America, public funding concentrates disproportionately on emergency response while neglecting prior mitigation. And the math is staggering: every dollar invested in risk reduction yields, on average, a fifteen-dollar return in avoided future costs.
This mechanism, which we could call the “budget of death,” reveals a profound distortion of the principles of efficiency and cost-effectiveness. The cynical claim of budget scarcity cannot be invoked when the public entity fails to allocate resources for mapped risks, choosing instead billionaire emergency expenditures that could have been avoided through ordinary budget planning.
The judicialization of collapse and the role of audit courts
In the face of this qualified inertia, administrative omission transforms into a generating fact of public misconduct. Even with the changes made to the Administrative Impropriety Law in 2021 (Law No. 14,230/2021)—which began to require proof of intent (dolo)—the conduct of a public administrator who, aware of imminent risk, chooses inaction, falls under this category of act harmful to public order. Intent here is configured by deliberate inertia in the face of repeated climate warnings; it is the conscious willingness to ignore established climate science.
Early warning systems well illustrate the governance abyss. Operated in a negligent or technologically vulnerable manner, undue triggers of extreme alerts (as recently occurred in Brazil) cause chaos and erode institutional credibility. The result is “alarm fatigue,” a phenomenon where the population, exhausted by false alarms, comes to ignore official messages when the danger is, in fact, real.
The response to this institutional collapse necessarily requires a reorientation of the justice system and control bodies. In its ruling on ADPF 708 (Climate Fund Case), the Supreme Federal Court rejected the thesis that environmental policy would be immune to judicial review, consolidating climate protection as a binding legal obligation. The path is open for structural litigation requiring municipalities and states to execute infrastructure works and evacuations before calamity occurs, hitting recalcitrant managers in the pocket through budget freezes and personal fines.
In parallel, external control is attempting a silent revolution. Ruling (Acórdão) 546/2023 of the Federal Court of Accounts (TCU) constituted a milestone by introducing the concept of the “cost of climate inaction” as an indicator of mismanagement. By demonstrating that the ineffectiveness of prevention policies generates unacceptable fiscal costs, the TCU assumed its role as the guardian of the State's climate rationality. The asymmetry between reconstruction spending and the lack of investment in prevention is not merely a tragedy; for audit officers, it is a grave structural failure that must be immediately punished and corrected, in coordination with internal control offices.
Climatological science has played its part by providing accurate and advance information about risk. Legal doctrine has done its part by forging instruments capable of holding the State accountable for preventive omission. It remains to be seen whether public state agents tasked with defending the democratic regime will play theirs.
The El Niño phenomenon and the escalation of extreme events in 2026 are the great litmus test for the seriousness of Brazilian public institutions. Every life lost in a landslide already foretold, every community flooded in a city whose drainage plan was shelved in bureaucratic drawers, constitutes proof of a failure that does not belong to the climate.
Will the catastrophe associated with the next climate extreme be the result of the rain or of our age-old insistence on waiting for it before acting? The answer will define whether Brazilian environmental and climate law is merely rhetorical veneer or a civilizational pact actually capable of saving lives.
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[Automatically translated article]
Authors: Bruno Teixeira Peixoto and Talden Farias
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