Non judicial environmental conflicts solution in the Ecological Constitutional State: the conduct adjustment agreement and environmental protection in Brazil | 2014

Author(s) Fausto Luciano Panicacci
Advisor(s) Pedro Carlos da Silva Bacelar de Vasconcelos
Year 2014

Synopsis This Doctoral thesis analyzes the conduct adjustment agreement as an alternative dispute resolution (ADR) of environmental controversy in Brazil. The volume is divided in three parts, added from the Final Considerations. The 1st part is dedicated to the critical review of the general discipline over the conduct adjustment agreement. It is aimed to demonstrate doctrine flaws from the superficial treatment of the matter – concept errors, terminological imprecision, concept distortion – aside the erroneous use of the “will” as a criteria to classify the conduct adjustment agreement. It is sustained that such classification is insufficient to embrace the Public Law institutes, and that the conduct adjustment agreement has a juridical nature of consensual ascertainment, a liquidation form of the preexistent obligations from duty violation. To the hypothesis verification it is used four models: the “Being categories” from Aristotle, the “syllogism validity proof”, the “Ockham Razor” and the “near gender and specific difference”. The 2nd part discuss about other problem: the lack of effectiveness of the judicial process for environmental conflict resolution. The morosely of the Brazilian lawsuits is observed from statistic data. A referent case is presented referring a contaminated area settled in the countryside of São Paulo state, which received, in the decades of 1970 and 1980, inappropriate deposition of around 320,000 ton. of industrial waste with serious damage to the environment – as the question has been solved with the use of the conduct adjustment agreement. It is analyzed the difficulties of the environmental questions treatment, seeing the complexity, the risks, the scientific uncertainty and the need of interdisciplinary focus. It is proposed the observation of the environment enlightened by the Game Theory – specifically the “prisoners’ dilemma” model and the allegory of “tragedy of the commons” – and the need of cooperation. It analyzes the project traced for the nature by Brazilian Constitution, retrieving the theme of the fundamental duties in the Ecologic Constitutional State and attention to principles such as prevention, precaution, polluter pays and intergerational solidarity. It is supported that the adjustment agreement is efficient and adequate mean of composition over environmental conflicts and it presents advantages over the judicial solution. The 3rd part is dedicated to consolidate the elements raised through the work. Furthermore the Final Considerations, it concludes that the environmental conduct agreement adjustment is efficient and adequate consensual agreement of obligations originated from violation of the fundamental duty of environmental protection.

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