ALVES, T. M.; http://lattes.cnpq.br/3781117620087546; ALVES, Talyson Monteiro.
Resumen:
Public policies are important parts to the construction of the Democratic State of Law and that
have reached special prominence with the positivization of programmatic norms. Such
instruments deal with several sensitive topics and among them, the environment and, regarding
this, a new guideline for the execution of environmental policy is currently underway in Brazil.
It turns out that the current process of formulating a new Environmental Agenda is motivated
by political, ideological and economic issues that provoke relevant controversies from the point
of view of constitutional protection to health and the environment that are demonstrated through
various indicators. In this context, the discussion about the unconstitutionality of the new policy
is, due to its dimension, seen from the perspective of an Unconstitutional State of Things (ECI),
a thesis that has already been considered in the STF within the scope of ADPF 347. However,
it is necessary to analyze the configuration of the ECI requirements so that an environmental
policy can be categorized in the foreground and, consequently, its unconstitutionality for
violating the fundamental rights to health and the ecologically balanced environment, due to a
structural failure, systematically and in a generalized way. That said, this research presupposed
the existence of a set of acts and actions that range from decrees, laws, guidelines and
resolutions to even public statements by authorities and ideological guidelines, which create a
public policy on the environment and, therefore, this set of acts and actions confront the
constitutional determinations of the subject. Thus, this work aimed to analyze the new Brazilian
environmental policy in order to identify, through data, acts, declarations and documents, the
main normative and factual issues and omissions about the subject in order to demonstrate the
existence of an Unconstitutional Environmental Thing State and its implications for the
institutional role of the STF. This work is a transdisciplinary legal research that used deductive
and historical-evolutionary methods, and the technique of documentary and bibliographic
research, with quantitative and qualitative research and statistic approaches to analyze legal,
administrative and statistical documents, parliamentary publications, official documents,
newspapers, books, theses and research arising from consultations with public archives, private
archives, statistical sources, written press and publications. That said, it was observed there are
procedural and material legal elements in Brazil for the characterization of an Unconstitutional
Environmental State of Things due to the flagrant environmental emergency, especially
regarding forest degradation and the flexibility of ecological legal protection. However, this
characterization lacks greater political and institutional visibility for the ECI technique to be
used as an effective means of overcoming a permanent picture of violations of fundamental
rights to health and an ecologically balanced environment, corollary rights to a healthy quality
of life.