A responsabilidade civil do estado pela não implementação da política nacional de resíduos sólidos

Abstract

The increasing pollution produced by the large amount of solid waste generated in the most varied human activities results in numerous problems for human health and the increase of environmental degradation, with the formation of garbage dumps, the spread of vectors of diseases, contamination of water resources, the clogging of sewers and floodwaters in cities, the increase of greenhouse gas emissions and global warming. Such problems are caused by lifestyle based on intense consumption of products and their subsequent disposal for new goods. This behavior, known as consumer society, is identified as an aggravation of the society of risks and dangers, which, in turn, implies recognition of a global ecological crisis. Such an ecological crisis was originated by the technological changes that occurred after the industrial revolution, implying in a profound alteration of the manner of human consumption and production. Since then, the human capacity for altering and combining chemical and biological elements has resulted in the creation of transgenerational and trans-boundary risks and dangers, implying the need for a new ethical orientation, able to guide human conduct in the face of the consequences of its actions towards future generations, especially as regards the depletion of natural resources and the contamination of the environment. In order to face such a problem, it is argued that the effectiveness of the fundamental right to the ecologically balanced environment contained in Article 225 of the Federal Constitution of Brazil requires, among other actions, the implementation of public policies aimed at ethical awareness and liability of all actors involved in activities related to the production and consumption of goods and services. In this way, this paper aims to discuss the civil liability of the State for the omission in the implementation of the National Policy on Solid Waste - NPSW. In spite of the modernity of the instrument and the important innovations it brought, it turns out that little was done by the public administration to give effect to Federal Law No. 12,305 of August 2, 2010. It is argued that the omissive conduct of the State can not imply objective liability when environmental degradation is caused by an private or personal acts. This issue is particularly interesting inasmuch as the right to the ecologically balanced environment is a fundamental duty of the State, but not only of it.