A efetividade da ação civil pública ambiental: acesso á justiça na confluência entre o Estado Democrático de Direito Ambiental e a sociedade de risco

Abstract

The duty imposed on the Brazilian State to organize itself taking the environmental dimension seriously, based on the existence of a right to a ecologically balanced environment, allows us to speak symbolically of a Democratic, Social and Environmental Rule of Law. As a consequence, public authorities have to promote its defense in all spheres of action. As for the Judiciary, the unfolding of this duty, coupled with the principle of access to justice, requires it to act effectively in prosecuting allegations of violation or threat to this diffuse right, which is done, mainly, through a so called public civil suit. This duty finds huge obstacles in the way of being of modern society, which is rapidly advancing towards a society of global risk. This new social model, maintaining the old center-periphery relationship, a strong characteristic of the capitalism of the first modernity, uncontrollably distributes the risks resulting from the industrial process, against which the mechanisms of command and control have little or nothing to do. In that society, the old national state, organized around its borders and the sovereignty over its contents, finds itself unable to combat the risks and threats to the environment, often generated in distant places, or, when in close places, in a way which makes it very difficult to establish a causal link. In order to fulfill its constitutional role in promoting and preserving the ecologically balanced environment, the Judiciary must, in cases of injury or threat, obeying the principle of due process of law, adopt measures necessary to prevent the violation or restore the status quo ante, within a reasonable time. Such a duty also constitutes a requirement for full access to justice, because, although already overcome the barrier of lack of adequate representation, with the attribution of that role to Public Prosecution Service, civil associations and others legitimized for the defense of diffuse rights in court, there must be a response to the request for protection of the violated or threatened right, as well as an effective implementation of concrete measures for this to be manifested in the world of facts. There is a general perception, however, that Brazilian environmental class action dealing with environmental protection have a slow process and are usually unable to give effect to the right to judicial protection, after being granted favorable preliminary injunction or judgment. It is been said, and it finds evidence in the data collected in this research, that this problem is due not to deficiencies in the material or procedural legislation, but to the difficulties of the Judiciary to decide the complex lawsuits involving the right to the environment ecologically balanced or to enforce the necessary measures for implementing the right in case of a positive decision, either for lack of means of its own, or for the disorganization and lack of structure of the Executive Branch. In the State of Amapá, case selected for this study, the research showed that this initial hypothesis is, in general, confirmed. Although the Court of Justice of the State of Amapá is among the first ones in performance evaluations, due to its procedural promptness, actually Brazilian environmental class action, specifically those involving complex issues and the need for intervention in public policies, have low or none effectiveness, since the course of those suits is slower than that of the individual actions and they often do not achieve any result. The situation is not worse because of some positive results arising from the use of alternative means of conflict resolution, but they are not enough to take as positive the Judiciary's action in the area of protection of the environment as a diffuse interest, especially when there debates about public policies and great economic interests. This situation ultimately leads to a denial of full access to justice in relation to the ecologically balanced right to the environment and, on the other hand, to the partial failure of the Judiciary and State to fulfill the mission that stems from the environmental dimension of the Democratic Rule of Law.