Estado de coisas inconstitucional e meio ambiente: perspectiva sobre a nova política ambiental brasileira.

Abstract

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.