A dinamização do ônus da prova nas ações ambientais

Abstract

This dissertation aims to analyze the applicability of the procedural institute and technique of dynamic burden of proof in environmental suits. Observing that the static distribution of burden of proof established in the Civil Procedural Code sometimes hinders an effective provision of jurisdictional services, it seeks to demonstrate in what ways the dinamization, which aims to conform the discipline of burden of proof to the Constitution, would be apt to assist in a better phase of judicial legal discovery. In order to do so, two axes of analysis were elected: the first comprises an analysis of environmental law s specificities (environmental crises, risks, precautionary principle, environmental liability and the peculiarities of causation) that demand a posture from the judge that is more active in regards to the production of evidence, aiming to adjust procedural law to the demands of environmental law; the second, analyzes the dinamization technique, its fundaments, criteria, boundaries and the correct moment of application. Building on these bases, it goes on to analyze the dynamic burden of proof specifically in environmental disputes, verifying in what ways the intrinsic features of environmental litigation can imply probational imbalances and, therefore, demand the modification of the static distribution of the burden of proof