O ato expropriatório concorrente Municipal na Constituição de 1988: a proteção do meio ambiente através do saneamento básico.

Abstract

The expropriatory act can be considered as an administrative act, by which the Public Power acquires an property to do effect a collective interest, through a procedure called expropriation. The instrument is for decades in Brazilian law, began in Decree of May 21, 1821, before the independence of Brazil, which had influences on the principles that motivated the French Revolution. Over the years many legal adjustments came after the edition of this legal up until 1941, because there was the edition of Decree-Law 3.365 regulated the method of application of the constitutionally foreseen expropriation. After the promulgation of the 1988 constitution many legal regulations required interpretative changes, towards of the incompatibility with the Federal Constitution. In the case of the expropriatory Decree-Law, the interpretative modification is not yet a consummate fact, especially as regards the municipal autonomy brought by Articles 18, 23, 24 and 30 of the Federal Constitution, not compatible with the provisions of Article 2, Paragraph 2, of the Infraconstitutional Legislation, since it does not foresee the possibility of the municipal entity to expropriate state or Union. Just as there was the recognition of the municipal autonomy in the Constitutional Text of 1988, there was also the adhesion in the constitutional norm of the defense of the environment, from the contained in the article 225. Such elevations of status of the themes cited - municipal autonomy and environmental protection - begin to be applied with greater priority and more respectability. More important becomes the concern in the correct application of the legal provisions cited when speak of the Basic Sanitation for the defense of the environment, because the projects and the works for implantation of this important protection to the public health are, as a rule, of high financial values and gigantic proportions, therefore if there is no constitutional interpretation of municipal autonomy, it will not be possible to expropriate any property belonging to the State or to the Union itself that is planning the implementation of basic sanitation, the municipality, only with the good will of the other federated entities. So, until there is an effective legal change in the text of the norm that takes care of the theme will have to make the correct interpretation of the subject, aiming at the defense of the environment and the local interest.