O princípio da precaução como fundamento da tutela inibitória coletiva ambiental

Abstract

The present dissertation has as study subject the precautionary principle used as foundation of the collective inhibitory tutelage within the ambit of protection of the ecologically balanced environment. The global risk society is the starting point of this research and acts as the sociological substratum. On the other hand, the effectiveness of the judicial protection is the teleologic criteria that operates as guiding thread of the research. Within the ambit of this legal scenario, we seek to answer the following questions: 1) The adoption of the precautionary principle would immobilize the economic development or would it safeguard the rights of present and future generations to a sustainable environment? 2) Between the redress and inhibitory tutelage, which one would be the most efficient in protecting the ecologically balanced environment? 3) Can the precautionary principle be used as foundation of the collective inhibitory tutelage? Our objective is, therefore, to analyze the implementation of the precautionary principle within the ambit of the risk society, in order to clarify that this principle is, among all, the most efficient to deal with the management of the threats to the environmental health, as well as demonstrate the satisfactory character of the inhibitory tutelage in safeguarding the health of the ecosystems. In addition, we intend to prove that the precautionary principle can be used as the foundation of the environmental collective inhibitory tutelage. To achieve such goals, an applied research was carried out (by its nature), explanatory (by its objectives), bibliographic (according to a technical procedure perspective), and qualitative (by the perspective of approach to the problem), through the dialectical method (according to the approach), as well as through the use of the historic and monographic methods (according to the technical means of the investigation). We divided the work in three chapters. In the first chapter, we address the precautionary principle in a holistic form within the ambit of the risk society, highlighting its capacity in managing environmental risk. In the second chapter, we discuss, in an exhaustive way, about the inhibitory tutelage, always highlighting its effectiveness to deal with environmental matters. Ultimately, in the third chapter, we discuss about the implementation and application of the precautionary principle as foundation of the collective inhibitory tutelage, through the utilization of the proportionality principle, in addition to explaining the current understanding of the Supremo Tribunal Federal, that highlighted the judicial approach of the precaution.