Para uma teoria da decisão judicial de urgência em materia ambientalem busca de critérios adequados a partir da teoria do caso ambiental (a tensão entre sustentabilidade e análise econômica do Direito ambiental)

Abstract

This Thesis is part of the Research Line “Constitutionalism, Transnationality and the Production of Law” (UNIVALI) and the Research Line “Environment and Sustainability”, this one developed by the University of Alicante-ES, highlighting the perfect compatibility and complementarity between these themes and the stimulus to research that together they provide. The common thread of this doctoral work is the difficulty faced in rendering the urgent decision on environmental matters, a delicate, risky and complex decision-making process, since the Judiciary is provoked to decide, quickly, questions related to the preservation of the Environment, the which, not infrequently, interfere in economic activities. In this scenario, the judge deals with several problems, such as: a) partial and superficial cognition, that is, the fact is not fully instructed; b) postponement of the contradictory, since, depending on the case, the decision will be taken without hearing all the arguments of the parties; c) choice between conflicting interests, assessing which will receive priority, that is, environmental protection on the one hand, and economic development on the other; d) vague and imprecise legal/procedural requirements (for consideration of preliminary injunctions), increasing justification requirements, as well as applying open concepts and interdisciplinary knowledge. The research also presents an overview of the procedural requirements of probability, danger of delay and reversibility, as well as the challenges for an adequate urgent decision to be issued in an environmental context. To this end, the investigation intends to demonstrate that the judge must consider, from the beginning, the assumptions of Sustainability and the Economic Analysis of Law, verifying the results (positive and negative) of the deliberation, gathering criteria to solve practical problems, avoiding superficialities and subjectivities , including reflecting on the consequences of their choice. From this study, with the fundamental reserve of scientific humility, the objective is to propose, to the judge with environmental competence, a system that allows him to examine, with scientific criteria, such complex issues, reconciling development and environmental protection. Therefore, the use of the Theory of the Case is suggested, a legal analysis methodology, through which the examination of the controversy is divided between facts, norms and evidence