O princípio da precaução e os limites da função reparatória da responsabilidade civil ambiental

Abstract

The purpose of this dissertation is to investigate the relationship between the risk society theory, the precautionary principle and environmental liability, from the perspective of the insufficiency of the classic reparatory model (retrospective reimbursement view). In this traditional paradigm, the mere practice of the unlawful act does not generate the duty to indemnify, without any damage having occurred from the anti-legal conduct. However, the techno-scientific society has brought risks that threaten the future of humanity. The side effects of economic development are not only local and limited in time, but go beyond national borders, reaching future generations. In view of the depletion of natural resources and the appearance of serious and irreversible damage to the environment, the research investigates the role of the precautionary principle (unknown risk or potential risk), as a mechanism aimed at preventing the damage from actually occurring (prospective preventive view). In this new scenario of scientific uncertainty, given the complexity of the risk society, it is necessary that the environmental civil liability evolves, supported by the precautionary principle, in order to allow the condemnation of an indemnity amount for the simple risk of serious and irreversible damages (normative damage) or the simple risk of causing serious, future and probable damage (normative causality). The dissociation between damage and loss is decisive in order to achieve preventive civil liability, either to obtain early redress for the material consequences of damage, or to obtain redress for the simple violation of environmental protection rules, which threaten serious and irreversible damage to nature.