A obrigação de indenizar e a determinação da responsabilidade civil por dano ambiental: fundamento e critério de valoração na pós-modernidade e no estado democrático de direito

Abstract

Today's complex society confronts the unavoidable need to overcome a precisely known and demarcated dilemma within the limits of its interaction with the environment: the imperatives of environmental protection and economic growth. Technological progress, for its part, besides making possible new and better living conditions, adds over time innumerable possibilities for environmental damage. Besides this, its control mechanisms show themselves to be an infinite number of times smaller, and qualitatively inoperative, before the scale of the degrading phenomena that increases geometrically relative to already intricate socioeconomic relations. Technological society, bursting across the door jamb of post-modernity, makes concrete, therefore, environmental degradation as a product of science and technology. Likewise, the legal tools that exist, especially in the area of torts, are not useful for the majority of concrete cases are brought before the law. Thus, the publication of this study is justified to the extent that it intends to launch new outlines to the theory of environmental torts, with emphasis on the basis of the obligation to indemnify and on the criteria for determining the amount of liability. In the chapters that follow these themes are discussed: under the heading Society, state and legal protection of the environment, the correlation between technical evolution and environmental degradation, the relation state and environment in the ideological development of Western political and legal thought, and the environment in the Brazilian legal order, to later, under the title Torts for environmental damage, deal with environmental torts from a comparative law perspective and to the new outlines of tort theory for environmental damage. Regarding its objectives, this study intends to establish a critical reading of the technology-society-environment sequence, revisit the environmental premises of the liberal state based on law and the social state based on law, culminating in the democratic state based on law, point out the phases that environmental material has gone through in the Brazilian legal order on the constitutional and non-constitutional planes, elucidate the legal discipline of tort for environmental damage in Brazilian law and in the law of some important foreign countries, and trace the new outlines of tort theory in the environmental area. The main hypotheses to be contemplated are embodied in these questions: What would be the new basis in criteria for establishing the amount of liability for environmental torts? What principles and rule of imputation would guide them, respectively? Does tort theory need different outlines in dealing with environmental damage? For this, the study uses the hermeneutic-theoretical method, seeking to make the concepts and precepts pertinent to its content dense. The results obtained point to citizenship and socio-environmental justice in substitution of equity and commutative justice as the basis of the obligation to indemnify and for the social function of tort instead of strict liability as the criteria of setting the value of a tort award for environmental damage, all within the juridical outlines adduced from post-modernity and the democratic legal state.