Decisão consensuada em conflitos envolvendo bens comuns ambientais: governança sustentável e democrática dos recursos hídricos

Abstract

The present work analyses of the premises for the construction of the legal institute of the consensual environmental decision involving environmental commons, either in the extrajudicial or judicial scope, from the governance and sustainability of water resources as a way of overcoming the privatized state jurisdiction. The research problem asks whether there is the possibility of implementing the consensual environmental decision of conflicts involving environmental commons about water resources, in a participatory, democratic way that redesigns environmental governance. The initial idea is linked to the proposition of the theoretical and legal bases to support the construction of the consensual environmental decision as an alternative means of conflict resolution aiming at a new sustainable and democratic environmental governance. In this way, it brings a reflection about the dogmatic legal contours of environmental mediation in Brazilian territory. It analyzes the commons and its relationship with the law aiming at a new legal rationality for the environmental commons. It studies the presuppositions of the Dworkinian theory analyzed in face of a theory for the environmental legal decision. And it addresses the environmental consensus decision as a search for a sustainable and democratic governance of water resources. The method of approach is the phenomenological hermeneutic, based on a theoretical framework formed by several authors. The method of procedure adopted is comparative through bibliographic and document research, using as a research technique the filing of books and texts, expanded abstracts and summary tables, according to the bibliography stipulated from the Basic Theory in primary and secondary sources of the search. In view of this, it understands the environmental consensual decision as a legal institute for the resolution of conflicts involving the environmental common goods concerning water resources. Furthermore, it recognizes the legal formulation of common goods of a community nature, notably those involving water resources, as well as the protagonism of social participation in the construction of the environmental decision, whether extrajudicial or judicial. Finally, the consensual environmental decision gives rise to sustainable, democratic and participatory governance of water resources in Brazil. [resumo fornecido pelo autor]