A tutela provisória de urgência ambiental: uma leitura a partir da análise econômica do direito (AED)

Abstract

The Brazilian State, aligned with the world scenario, has been evolving normatively for environmental protection purposes. Following this line, the Law itself has been recognizing and expanding the scope of action of one of its most recent specialized branches: the environmental one. Analyzing this role of Environmental Law, it is observed that it has strong links with another social science: economics. They are branches of human knowledge that aim to regulate or analyze, depending on each one, precisely the economic appropriation of environmental goods, taking into account the sustainability of these resources and the economic and social development of society. This connection between these fields of human knowledge is precisely the scope of the present study. Indeed, it is not only Law that approaches Economics with the emergence of specialized branches, but it is also the latter that approaches the former with the expansion of a specific field of study: the Economic Analysis of Law (AED). In this sense, this research proposes the following problem for analysis: “Under the lens of the economic analysis of law, it is possible to mitigate the requirement of the danger of delay (“periculum in mora”) for granting provisional environmental protection as an instrument of protection to a balanced environment for present and future generations? In order to respond to the problem raised, the specific objectives are: a) To briefly present the institute of provisional guardianship, in order to subsequently verify how it can be applied in environmental demands, considering the nature of the right involved (diffuse ) and the principles governing this specialized branch of law; b) Present the Economic Analysis of Law (AED) and its tools as an instrument for an analysis of the practical consequences of preliminary injunctions issued in environmental claims; c) Evaluate the pragmatic approach to law, in particular, highlighting the role of a pragmatist judge in the contemporary risk society, based on the analysis of 4 (four) judgments of the Federal Supreme Court (STF) that involve environmental issues and the concession or not of provisional environmental protections. As a result, it is understood that the relationship between the AED and the civil procedure allows for a wide range of research, both because it is still a legal line of thought in the consolidation phase in the Brazilian territory and because a society that assumes more and more risks needs of a right that is guided by pragmatic judicial decisions able to analyze the behavior of its agents and, above all, to control conducts that are harmful to the entire community. In environmental law, this is even more relevant, since it covers the protection of an intergenerational right.