A proibição de retrocesso ambiental no contexto da teoria dos direitos fundamentais : os limites das leis restritivas

• Autor(a) principal: Gallo, Rogério Luiz
• Data de Publicação: 2013
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da UFMT
• Texto Completo: http://ri.ufmt.br/handle/1/851
• topic: Direito agroambiental; Direito fundamental ao meio ecologicamente equilibrado; Proibição de retrocesso ambiental; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Environmental law; The fundamental right to an ecologically balanced environment; Principal of non-regression

This is research to situate the principle of non-regression under Brazilian environmental law constitutional. With this aim, we analyzed the history of fundamental rights in order to identify the right to an ecologically balanced environment as belonging to the third dimension of fundamental rights, influenced by the occurrence of ecological problems of first and second generation that resulted in damage to more complex and repair difficult or improbable, for example, caused by climate changes. Internationally, it was found that the Declaration on the Environment in Stockholm (1972) represented an important step in the consolidation of the right to environment as a dimension (one of the most important) the principle of human dignity. It was not long until, from these texts enunciative international to domestic constitutional orders, as the Constitution of Brazil of 1988, previssem the right to the environment as a fundamental right explicitly, guaranteeing thus the viability of human dignity as a result of minimum ecological conditions. They are, then, the basis for the consideration of the existential minimum ecological as a dimension of social or existential minimum, if you will, in the wake of specific principles that started to inform the public and private choices in a state that should serve the interests of future generations . With the introduction of intergenerational component, the state now has limits on their political projects, and can not, therefore, reach the core standards that specifically provide for the protection of the environment. From this perspective, it is not admissible involution environmental standards but only to strengthen existing safeguards. In this respect, the new Brazilian Forest Code, introduced by Law No. 12652/2012, with an expected reduction of permanent preservation areas and legal reserves without sufficient technical justification, entails recognition of its unconstitutionality, for violating the minimum level of environmental protection to environmental goods that can not be kicked, but only strengthened. In that same vein, the study demonstrates that the Complementary Law No. 140/2011 also runs into the same vice of unconstitutionality, since retreated levels of environmental protection by having reduced the participation of other political entities in the exercise of police power environment.