A responsabilidade civil do Estado por omissão em danos ambientais

Abstract

The protection of the environment is a constitutionally enshrined legal innovation, and it is up to individuals and the State to exercise this protection. This protection is based on principles that serve as interpretive vectors for legal action. Among the principles that govern the branch of Environmental Law, prevention, precaution, polluter pays and responsibility are of paramount importance. The foundation of these lies mainly in a peculiar characteristic of the environmental legal good, which is the difficulty of returning to the original status of preservation. Therefore, in the environmental area, it is much more important that the damage is not practiced, thus avoiding bigger problems. However, it is not always possible to prevent damage, which is why it must be compensated. Thus, the Federal Constitution provided for the triple environmental responsibility, which can be criminal, civil or administrative. Civil liability consists of repairing damages and, unlike other branches of law, is objective in nature, that is, proof of intent or guilt is not required. Like individuals, it is the State's duty not to harm the environment. In addition, in view of state supremacy, the State must also supervise the actions of individuals so that they do not damage the environment. However, there is no provision in the country's legal system for the State's responsibility to be objective or subjective in the event of omission of its inspection duty. The adoption of one of the legal regimes of civil liability over another entails different consequences, which is why this study is very important. Therefore, based on the analysis of the understanding of doctrine and jurisprudence, this study seeks to carry out a critique of the current adopted. As can be seen from the recent judgments of the Superior Court of Justice, the adoption of objective responsibility of the State in case of omissive conduct is noted.