Controle judicial de políticas ambientais : nova hermenêutica para a maior efetivação da tutela do meio ambiente pelo judiciário brasileiro

Abstract

The present dissertation deals with the diagnosis of the problems faced by the judicial review of public policies when applied to environmental policies in the Brazilian legal scenario. In the light of the reported diagnosis, a new environmental constitutional hermeneutics is proposed for the greater effectiveness of the protection of the environment by the Brazilian judiciary, with support in alien law and doctrine. The research reported here used a qualitative methodology through inductive-deductive reasoning, working with the normative bases of the legal matters in question. The research asserts itself as theoretical, so that the procedure for proving the formulated propositions will take place through the investigation of legal precepts, doctrinal and scientific texts and jurisprudential understandings. In the first chapter, there is a restitution of the main theoretical references to guide the proposed debate, going through the doctrine of judicial review and its recognised limitations, from its origin to incorporation in Brazil, and by considerations about the peculiarities that the protection of the environment imposes on the provision by the State, given the nature of the assets and rights in dispute. In the second chapter, there is a diagnosis of how Brazilian courts, taking as a sampling field judgments handed down by the Federal Supreme Court, apply judicial review when demanded on environmental issues, verifying which limits to its exercise are recognized and how the consideration of constitutional principles is done in cases involving environmental legal interests. In the third chapter, the existence of an Environmental Rule of Law is asserted, through international and domestic normative and interpretative contributions, as a means of giving effect to environmental protection and carrying out environmental protection. To this end, under the dogmatic bias, it uses the study of international regulations on environmental matters that bring greater protective suitability and consequences of their possible applications to the Brazilian legal scenario. At the hermeneutical level, a judicial practice is defended that favors the principle of socio-environmental proportionality, as a result of the recognition of an Environmental Rule of Law, implying a change in the parameter of constitutional weighting in cases involving the protection of the environment. Finally, it is argued that the recognition and application of this new constitutional hermeneutics is a skillful way to enable and implement the promotion and protection of the environment, being clear that there is the incorporation of these postulates by legal operators in general, and, in particular, by the magistrates responsible for controlling the constitutionality of acts and omissions potentially harmful to environmental goods. In this way, the proposed solution seeks the realization of what is already inscribed in our Constitution, filling in and interpreting the constitutional commandments in order to give materiality to the protection of the protected legal interests.