A produção do irreversível em questões urbanístico-ambientais: a vedação ao retrocesso à luz da teoria da restrição na constituição brasileira

• Autor(a) principal: Vasques, Pedro Henrique Ramos Prado
• Data de Publicação: 2014
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9406
• topic: Urban Law; Environmental Law; Regression prohibition principle; Judiciary; Direito Urbanístico; Direito Ambiental; Princípio da vedação ao retrocesso; Poder Judiciário; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The twentieth century is marked by a change in the way of perception and management of the environment. In response to this transformation, institutions were created and new regulatory strategies were envisaged to account for the natural resources management. Although in the Brazilian context it is possible to list a series of norms regarding the theme, the environment was enshrined in the Federal Constitution of 1988, as well as the prediction of intergenerational responsibility, which from the moral plane is also elevated to the legal-constitutional category. From this perspective, regulation forms of the present generations behavior are based on the justification of guaranteeing the future. To this end, several instruments are developed, such as impact assessment, environmental licensing, quality standards and, more recently, the idea of regression prohibition. To discuss this principle, the work is divided into three stages. The first one intends to conduct an analysis of the institutions on the theoretical prism, giving special emphasis to the Brazilian forms. Next, John Elster's Theory of Restriction is worked in conjunction with the theoretical-doctrinal discussion involving, initially, the principle of the existential minimum (social and ecological) and then the regression prohibition principle. In the third stage, after introducing the theoretical foundations, a set of analyzes is developed regarding the application of the principle by the Brazilian courts. This approach allowed to observe a wide scope and theoretical-methodological absence regarding the use of the retrocession seal. Finally, it is hoped that the analysis conducted will not only help in understanding the limits and uses of the principle studied, but also indicate better references for its future application to legal operators