Proteção constitucional do meio ambiente e colisão de direitos fundamentais : reflexões acerca de um limite não ponderável

Abstract

The concern with environmental protection gained more space in several areas in the world scenario from the 70’s , and this is not different in the Brazilian context, especially in the scope of the Brazilian Constitution of 1988. The constituent, accordingly, took the environment to the status of a fundamental right, reinforcing that the concern with the environmental protection is a duty entrusted not only to the State but also to the entire community. Identifying which values a state model structured on shared responsibility commitments to the protection of a constitutionally guaranteed environment, allows visualizing the key role played by society in the possibility of achieving the legal and political project of environmental protection identified in the Constitution. In this context, the constitutional design of fundamental right to the environment reveals that the ecological fundamental duty is impregnated throughout the Constitution, redefining the rights formerly understood as merely individual, such as the right to property. Based on this premise, this study seeks to reflect if, in case of collision between the fundamental rights in question (right to the environment and right to property), the balance of interests will be always the best way forward in order to solve the conflict, or if there are situations in which the environment protection reaches an imponderable zone. The relevance of the research in development lies in reflecting about why society has to protect the environment, in order to show that the fundamental right to the environment not always admits to be pondered, especially having in mind the existential values that it encompasses. In order to achieve this result, the inductive scientific method will be used, with techniques of bibliographic and documental research besides the selection of relevant cases in the jurisprudence regarding the faced problems.