O direito fundamental ao meio ambiente ecologicamente equilibrado e a jurisprudência de valores nos tribunais superiores brasileiros

Abstract

The fundamental right to an ecologically balanced environment is related to several cases submitted the Supreme Court (STF) and the Superior Court of Justice (STJ), in order to establish what is owed to the parties involved in the judicial process. The content of the decisions and the theories that support the decision-making practice of both courts influence the other instances of the judiciary in Brazil. However, not all the assumptions embedded in decision-making practices of the judges satisfy the requirement of democratic rule of law: legal certainty and correctness of the judgment. The aim of this study was to examine whether the court decisions involving the fundamental right to an ecologically balanced environment, in which the balancing was selected as an appropriate method for resolving collisions between principles, confirm what was democratically established, ensure at the same time, legal certainty and the correctness of the judgment. A qualitative and descriptive character research was developed, opting for a cross-section, with the analyzed period comprised of 1 July 2008 to 30 June 2014.The document analysis technique was used to process the data used up. In both STF votes analyzed, there was a decision-making practice that does not follow the balancing assumptions as recommended by Robert Alexy. On a vote of the STJ analyzed the Minister, despite considering the balancing as appropriate method for resolving collisions, following the theory of Robert Alexy correctly, the judge understood that it was not necessary to apply the method. In the end, it was considered that: (I) the balancing does not satisfy the both requirements of legal certainty and correctness of judgments involving the fundamental right to an ecologically balanced environment, weakening the function of stabilizing expectations that this right must be carried out; (II) the decision-making practice found in the two votes of the Supreme Court further weaken this function, given even less to the both requirements of the judgment.