O mercado de carbono sob a tutela do Acordo de Paris: os desafios de sua transcrição no direito brasileiro

Abstract

The carbon market, conceived under the Kyoto Protocol and currently governed by the 2015 Paris Agreement, stands as an important tool for mitigating the adverse effects of climate change by encouraging the reduction of greenhouse gas (GHG) emissions. However, its implementation faces regulatory and operational challenges at both international and national levels. International limitations require the Paris Agreement’s Parties to take a leading role in promoting internal regulatory adjustments necessary for the operationalization of their regulated carbon markets. In this context, Brazil has achieved significant changes in its legal framework, such as incorporating incentives for sustainability actions aimed at reducing emissions into the Federal Constitution through Constitutional Amendment No. 132/2023, notably with the inclusion of § 4 of Article 43 of the 1988 Constitution, as well as Article 159-A. Additionally, Brazil established the Brazilian Emissions Trading System (SBCE) through Law No. 15,042, dated December 11, 2024. Despite these advancements, some regulatory gaps and difficulties remain in ensuring the effectiveness and full operationalization of this market, especially regarding the transition from the Clean Development Mechanism (CDM) to the Sustainable Development Mechanism (SDM), as provided for in Article 6.4 of the Paris Agreement. Thus, this study analyzes the international legal framework of the carbon market, highlighting the challenges of its incorporation into national law and identifying barriers to consolidating an effective normative framework. Methodologically, the research is applied in nature, emphasizing the theoretical understanding of the international and (infra)constitutional legal framework of the carbon market. A qualitative approach is adopted, with the theoretical procedure being bibliographical and documental, based on a literature review that includes legal works, scientific articles, legislation, as well as international treaties that serve as governing norms on the subject.