A justiciabilidade ambiental inter pars ou extra muros : uma dupla compartimentação dos bens ecológicos

Abstract

The present dissertation aims only to alert to the risks arising from the unsuspecting ande indiscriminate comparisons made between traditional human rights and the fundamental right to the environment. It is well known that any comparison made in the field of normative science when it is not grounded in reality is no more than mere legal fiction. As the opening of a legal system is a direct consequence of the principiological nature, which is typical of the norms of fundamental rights, there is an impersonal analysis as to the ways in which the rights of fundamental rights are exercised and if, as a result of these justifications, there is a compromise of the so-called “systemic openness”. As tutelas derived from the firts two generations or dimensions are exercised in a pulverized and individual way, the holder of that fundamental right always being “beside the cause”, in one way or another, at ideal levels or not, the citizen (lato sensu) ends up contributing to the maintenance of the human rights agenda.Thus, even in the face of possible hypotheses of normative setback, through full justiciability, the citizen is able, in a difuse way, to exercise a kind an control of constitutionality of his concrete case. As the fundamental right to the ecologically balanced environment depends, unlike classical dimensionsor generations, for an excessive abstract normalization and the judicial tutelages derived therefrom ar commonly exercised through procedural substitutions, the principiological matrices or origins run the risk of misrepresenting their essence normattive of origin. Precisely because, as environmental configurations are housed in innumerable, dense and casuistic legal bodies, they end up receiving typical treatment exempt from legal rules, being seen as “mere legislative details”, which makes it difficult to adequately measure normative setbacks ins a “universe of só many achievements”.Thus, in the Brazilian legal system fundamental ecological protection is compartmentalized and restricted to the area of public civil actions and eventual actions of control of constitutionality by the abstract route. Places where principles are unknowingly treated by legal rules.