O direito ao ambiente como um direito fundamental completo : conteúdo e tensões correlatas

Abstract

The present study aims the delimitation of the outlines of the right to an ecologically balanced environment, as well as the critical diagnosis of legal, political and philosophical tensions which impede its materialization. It is assumed that, in the regulatory framework of the Brazilian Federal Constitution, the right to environment shall be seen in the light of the perspective of the full fundamental right, it is similar to say, as a bundle of fundamental legal positions. In this respect, it is noticed that such analysis conception is revealed as an adequate analytical tool for the densification of the content concerning right to environment, because it elucidates the defensive and provisional dimensions, contributes for the acknowledgment of ecological duties and a right subjective to the healthy environment and, also, it clarifies inasmuch as the people are connected to the right in this instance. Beyond the dogmatic borders, reflections sought in other knowledge fields are added, as the social environment bewilderment o four time demands that the right to environment is seen as something alive, open pulsing and dynamic, which is in permanent (re)construction to face the complexity of causes that engender the present scenario of an ecological crisis. In this context, the research contemplates, from a point of view of legal tensions, collision hypothesis of the right to environment with other fundamental rights and limitations to the process of majority decision; concerning political tensions, specially aspects related to the State budget priorities, the attribution conflicts between the powers and the democracy paradoxes resulting from the acknowledgment of the normativity of the right to environment; and, in the scope of philosophical tensions, issues concerning the environmental ethics and the crises of a bond with nature, to the effects of the monocultures and consequent waste of knowledge and experiences, all involving the ideal of environmental justice. The construction of a right to environment as a whole is useful to identify the so-mentioned tensions and, therefore, foster reflections so that these tensions can be overcome or their outcomes can be softened.