Pagamento de serviços ambientais e efetivação do direito ao meio ambiente na perspectiva da teoria funcionalista do direito

Abstract

Although environmental legislation forbids total or partial vegetation coverage suppression in rural properties, the degradation of such a coverage has advanced in accelerated rhythm, thus causing severe damage to the environment and to human beings. In order to prevent a full collapse of the ecosystems which render precious service towards maintaining human and non-human life, it is urgent the adoption of new environmental preservation and conservation strategies to avoid greater damage to the Earth. In this context, the State and the Law must develop the discussion of other ways to balance the social, economical, and environmental aspects, by creating new juridical instruments as a form of environmental conservation prior management. Since only enforcement-repression instruments are no longer able to change the country’s environmental situation, new effective mechanisms are required for the State to face the environmental crisis on a planetary scale. This paper aims at discussing the possibility of implanting positive incentive instruments, which are adequate to the 1988 Federal Constitution. An alternative that is still under debate is the adoption of positive instruments turned to environmental management in Brazil. Since the last century, encouragement techniques have gained force, assuming a greater role in the Democratic Rule of Law beside the protective-repressive juridical system. The State, by means of the Law, besides acting with a repressive system begins, thus, to employ a prior control turned towards prevention, as well. In this way, the motive power idea is to institute payment for environmental services as a promotional juridical instrument to be used in the development of a Social-environmental Rule of Law. The contribution we wish to make through this paper consists in the correct legal basis of the payment for such services in face of the juridical system currently in force in this country.