Tutela de urgência e litigância climática na jurisdição brasileira: uma releitura do instituto processual em busca da efetividade da prestação jurisdicional

Abstract

Climate change is one of humanity's greatest concerns and its impacts affect the most vulnerable in particular, aggravating inequalities. The urgency qualifies this phenomenon and is proportional to the harmful consequences of its effects, as well as the challenge that will be to mitigate, adapt, repair and manage its risks. The law is urged to offer its contributions, and it is in the transnational sphere of climate change, where local experiences resonate and induce similar experiences in other countries, that climate constitutionalism emerges and thrives, driving the implementation of climate protection from the constitutional point of view. Evolving in the same transnational sphere, climate litigation spreads globally, transferring the climate agenda to the courts and provoking them to decide such conflicts in the light of constitutional rights, as well as to recognize a fundamental right to a stable climate. Brazil's climate litigation has just begun, but the legal system provides valid arguments and there are procedural instruments that can be used to file a climate action. On the other hand, the current procedural model, as well as the institutes that constitute it, is under old influences, which reduce their ability to offer an effective response to climate disputes. The need to promote a rereading of preliminary injunction in climate litigation results from the fact that the procedural system is geared towards the resolution of particular conflicts, despite the specifics of the assets that is sought to be protected. In this context, the research proposes to answer to what extent the preliminary injunction can be adapted to contribute to procedural effectiveness of the climate litigation in the Brazilian jurisdiction, suggesting a reinterpretation of the institute. The hermeneutic method was used, suitable for the sciences of the spirit, among which the law is inserted. Scientific production was made through bibliographical and documentary research, with revision, review and filing techniques. The main objective of the study is to investigate the preliminary injunction, its regulation and possible adjustments that could be made to contribute to the effectiveness of the jurisdictional provision in climate disputes. The specific objectives are to investigate the connection among constitutionalism, justice and climate litigation, in order to outline what they consist of and what influence there is between them, and to analyze the challenges and possibilities for the climate litigation movement in the brazilian jurisdiction. Based on this approach, it is clear that preliminary injunction remains oriented towards the resolution of private conflicts, incompatible with the protection of a stable climate, which is vital, ubiquitous, indivisible, and belongs to everyone and benefits all, integrating the essential nucleus of the fundamental right to an ecologically balanced environment. The proposed reinterpretation starts from the identification of points of insufficiency or inadequacy of the preliminary injunction, and aims to contribute with suggestions for the effectiveness of climate disputes, guaranteeing it against the effects of time, in order to obtain, in the end, a judicial protection that is still adequate and timely. [resumo fornecido pelo autor]