A judicialização do direito social ao transporte: a formulação de políticas públicas de mobilidade urbana sustentáveis pelo uso do modal bicicleta

Abstract

Urban mobility constitutes one of the challenges for environmental law, in times when the number of automobiles renders the circulation in the cities practically unfeasible. Individual motorized transport prevails on Brazilian streets and roads, a situation that is incompatible with the concept of the “Ecological State”, i. e. a state that takes on socio-environmental responsibility, as well as with the National Urban Mobility Policy, which give priority to sustainability and to forms of non-motorized transport. The lack of cycle lanes in the cities, also a consequence of the inaction of public administrations, impedes the construction of sustainable cities. Considering that the implementation of public sustainable policies is likewise a legacy for future generations, it is justified to analyse the viability of judicialization for the implementation of a network of cycle lanes. Although subject for debate in legal science and jurisprudence, this judicialization encounters no impediment in the maintenance of adminstrative discretion, nor does it interfere in the division of functions, since the protection of the environment also constitutes an obligation of the public administration. Applying the hermeneutic method and the technique of bibliographical research, it can be concluded that the inactivity of the public administration entitles the judiciary to take action, since such conduct offends the principle of sustainability – of paramount value in the Ecological State, which esteems the quality of the environment and, therefore, calls for administrative actions that have the effect of promoting the preservation of the environment in urban spaces.