Centro Universitário Salesiano de São Paulo Education Unit of Lorena Masters in Law Program Research group of environmental law



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Centro Universitário Salesiano de São Paulo

Education Unit of Lorena

Masters in Law Program


Research group of environmental law

(GRUPO DE PESQUISA DE DIREITO AMBIENTAL – GPDA)


  1. Patrícia Bianchi

  2. November, 2016
  3. 1. Introduction

The Research Group of Environmental Law - GPDA is inserted in the Masters in Law Program of Centro Universitário Salesiano de São Paulo, whose concentration area corresponds to “Achievement of Social, Diffuse and Collective Rights”, with the following research lines: Line 1. “Social, Economic and Cultural Rights”; and Line 2: Proprietary Diffuse and Collective Rights”

GPDA is formed by professionals and researchers from several areas of Law, besides Engineering researchers, aiming to bring multidisciplinary character to the works.

The group meetings will be on-site and/or online (Skype or Hangouts), with intervals of two weeks, totaling two monthly meetings. The materials will be exchanged and the information will be sent by email. The results of researches/works will be sent to significant means in legal area (exceptionally in other areas), which have a good Qualis CAPES classification.




2. Group’s Objectives
Promoting legal research in the context of Diffuse and Collective Rights, through deepening of relevant themes which have above all exploitation on social and local context, as well as develop reflections about contemporaneous themes related to that concentration area, seeking solutions and ways which contribute to an ecologically balanced environment, in accordance with the Brazilian Constitution of 1988.

The objective is to foster the scientific production, by professors and students – from UNISAL or from other invited HEIs – in the context of Environmental Law and the mentioned research lines, generating results to be presented in national and international scientific events, especially production of books and articles, the latter to be published in legal journals well qualified by Qualis.


3. Repercussions:
GPDA is registered at the Research Groups Directory of the National Council of Scientific Development (Diretório de Grupos de Pesquisa do Conselho Nacional de Desenvolvimento Científico e Tecnológico - CNPq) and can be found at the link: http://dgp.cnpq.br/dgp/espelhogrupo/8135572484170629. At this same website the access to each researcher’s “Currículo Lattes” of the group is available.

Previously to the new composition, the Group aimed the investigation of Environmental Law especially in Ethical and Environmental Research Lines; and Proprietary Diffuse and Collective Rights. It had 6 (six) projects: 1. Noise Pollution with the publication of two book chapters; a) Noise Pollution and its Harmful Effects to Healthy Quality of Life, While Environmental Influence; b) Environmental Health as a Strand for the Control of Noise Pollution 2. Healthy Quality of Life with the publication of six articles; a) Healthy Quality of Life; b) Harmful Effects of noise Pollution to Healthy Quality of Life; c) Criminal Environmental Offenses of Less Dangerous Potential; d) Restriction on the Circulation of Vehicles and the Federal Constitution; e) Healthy Quality of Life as Ethical Environmental Duty; f) Inherent Characteristics to Diffuse Rights; g) Ways to Prevent Water Degradation; h) Obligation of Licensing in Permanent Preservation Area i) Environmental Public Civil Action: An Alternative of Guardianship 3. City Statute with the publication of one book chapter a. Guiding Environmental Instruments of the City Statute e its Destination to Sustainable Cities 4. Social Environment with the publication of one book chapter a. Mutual Sustainability of Ecological Environment with Social Environment 5. Cultural Heritage with two book chapters published; a) Registration of Historical Buildings and its Legal Implications in the Preservation of National Cultural Heritage and the Society’s Role; b) Protection of Brazilian Cultural Environmental Heritage in Face of Property Right, Through Registration of Historical Buildings and Public Policies of Tax Incentive 6. Environmental Responsibility with one book chapter published a. Civil Responsibility of Public Power in Environmental Matters.



The Research Group was originally formed by master’s students before the register in 2004, and by researchers of the HEI of Graduation and Masters in Law; subsequently it received external accessions.
4. Human Resources:
4.1 Researchers


Name

HEI

Title

Patrícia Nunes Lima Bianchi

UNISAL

Doctorate

Milena Zampieri Sellmann

UNISAL

Doctorate

Henrique César Sampaio

Universidade Estadual Paulista Júlio de Mesquita Filho

Doctorate

Luiz Cláudio Gonçalves Junior

UNIESP

Doctorate

Suhel Sarhan Júnior

UNISAL

Master’s Degree


4.2 Students


Name

Training Level













João Carlos Valentim Veiga Junior

Master’s Degree




Fábia de Oliveira Rodrigues Maruco

Graduation




Higor Cauê de Souza Oliveira

Graduation




Larissa Schubert Nascimento

Graduation




Drielly Faria Vasques

Graduation




Luísa Claudia Faria dos Santos

Graduation





5. Theoretical Foundation
The Research Group of Environmental Law - GPDA, with its recent formation, aims the realization of investigations which contribute to academic debate about the main themes of Environmental Law and its ramifications.

GPDA is inserted in the Masters in Law Program of Centro Universitário Salesiano de São Paulo, whose concentration area corresponds to “Achievement of Social, Diffuse and Collective Rights”; with the following research lines: Proprietary Diffuse and Collective Rights; Environment and Economic Order; Disaster Risk Reduction. The group gathers researchers and students of the area of Law, with diverse specialties, which match one or another proposed line, besides researchers of engineering area, fact that will bring good contributions in order to provided multidisciplinary character to the works.

The achievement of the right to an ecologically balanced environment, according to caput of art. 225, of the Constitution of the Republic, will be a constant concern of the group, in order to develop and incorporate cultural values and ethical principles fundamental for decent existence of citizens.

From the context of current, postmodern and globalized society, it is proposed that the pursuit for development, especially economic, should not overshadow the care with the environment and the several commitments made by the country about what concerns the ecological sustainability. Giddens attributes the popularity of the expression “sustainable development” to what he calls of trivial character, to an intrinsic imprecision. He understands the terms “development” and “sustainability” somewhat contradictory and claims that the latter represents a “useless idea”, although the definition is a little slippery, as it concerns an indefinite future.”1

When it comes to the issue of development, Branco observes that quality of life is the objective of development or civilization. This would mean, necessarily, preservation of regional patterns and characteristics. The author considers development “something that comes from the inside out, like the evolution of an embryo, the blossoming of a flower, the germinating of a seed”. He considers that term carrier of intrinsic factors and, “if something needs to be added from the outside to accelerate its process, it will have to respect that a germ existed there, and not to destroy it.” 2

With regard to sustainability, Veiga understands that, referring to ecological and environmental dimensions, its objectives form a real tripod: “1) preservation of nature potential for production of renewable resources; 2) limitation of use of non-renewable resources; 3) respect and emphasis on the self-depuration capacity of natural ecosystems.”3 For the author, the environmental sustainability is based on “the double ethical imperative of synchronic solidarity with the present generation and of diachronic solidarity with the future generations”. In these terms the conventional economy would be somewhat damaged, since success is required both in economical terms and in social and ecological terms; besides the condemnation of growth obtained at cost of highly negative externalities, both social and environmental.

The fundamental right to the environment has its dignity founded on the right to life. However, its achievement involves – besides legal elements – political, cultural and economic factors, among others. These ones must be taken into consideration when there is the establishment of public and legal policies, citizenship exercise, etc. The effectiveness of that right must be understood in a context of crisis of Brazilian judicial system, raising issues like the slowness of judgment of cases, the access to justice, environmental injustice, among other highlighted themes.

In this respect, the research will face problems related to post-modernity which, as a rule, do not admit environmental preservation, since the neoliberalism and consequently the market see the environment as production and profit condition, in a scenario where the Law is understood through its economic analyses. At the present time the society is more polluting, and the Environmental Law becomes less effective.4

The State had a crucial importance for the beginning of the development process of the countries currently considered developed: first by establishing protection of its interests at that time against other rival powers; and secondly by using military power and diplomatic influence to guarantee free economic access all around the world. In that regard, Bello claims that:
The large economies have never used the remedy they apply to developing countries, and somewhat there is no real and concrete indication that the offered model will generate something different apart from misery, dependence, enrichment of a minority class and profit for banks and multinational companies.5
For this reason the markets cannot substitute the State performance, since those ones do not have as objective the solution of social problems, aiming specifically obtainment of profit, as it is characteristic of their activity. In this regard, Bello assumes that “poverty, sadness, famine and war are only necessary or unnecessary components for the biggest objective: profit”6 According to the author, in post-modernity the State has lost its collective concerns, turning to defend personal prerogatives and unrestrained liberty, in detriment of equality. There has been loss of collective sense by means of abandonment of public spaces, in a process of hypertrophy of companies and atrophy of the State. Thus, companies began to devalue the State, dismantling its social function, besides the establishment of minimum accountability regarding the neo-liberal interests. This way, the postmodern society would be characterized as a “non-state society”, of “lack of participation” and “lack of occupation of public spaces”, being a deliberate omission, in order to exclude the latter.7

In relation to environmental problems, in the eco-liberal model of defense of the environment, the State should not intervene in the marketing issues, and it has its hands tied in relation to environmental issues connected to the market. For this reason, it is believed that this solution is not the most appropriate to the real and serious problems caused by the market to the environment. Nevertheless, this is the model currently adopted by most of the nations of the world, where legislative policies on eco-liberal character are incorporated. In this model, the environmental protection would be entrusted to the individuals who are part of the market decisions, what would make the internationalization of environmental costs even more difficult, due to a simple lack of compulsoriness by a superior institution.8

Some authors such as Ayala understand that the Environmental Law must give the legal conditions necessary to the achievement of the effective environment protection. In the context of postmodern society, more specifically risk society, the Environmental Law can serve as a vehicle to promote the collective ethics, or more specifically, through the establishment of an ecological ethics lost with the globalization process. Here, Menezes comments that the study of Environmental Law is presented as a pre-conception that the safety is a goal that will hardly be achieved, because safety and control presuppose uncertainties and problems, and analyzing the risk society, it is verified that the safety is presented as an almost impossible purpose, and the solutions must be directed to a better interaction with risk situations.9

Canotilho marks that the Environmental Law must regulate the new risk situations, with the purpose to protect the ecologically balanced environment, promoting a greening of law, without necessarily promoting a juridicization of ecology.10

In his turn, Caubet criticizes the law in order to affirm that it does not meet the victims’ impotence, but it makes an effort to justify the risk activity, subtracting the consequences for the author of the damage. This would follow the logic of privatizing the good results and socializing the harmful effects, a result of the globalization process, that is: substitution and suppression of the traditional judicial-normative constructions, which guaranteed losses caused by initiatives of others. The author still reports that, in respect of risk society, there is lack of interest to identify the “basic principles”, in the traditional sense of basic principles of criminal law what, if completed, would establish a group of relations with predictable consequences and facilitate the accountability of the agent that caused the damage.11

Despite recognizing the logic of privatization of good results and socialization of harmful effects, fact that is characteristic of Brazilian society – such as the establishment of polluting transnational companies which obtain privileges to pollute – it cannot be agreed that the Environmental Law gives conditions for the polluting agents or risk producers not to be liable. Instead, the Environmental Law has evolved like no other field of law over the last three decades, and the problem is concentrated much more in its effectiveness than in the establishment of protection regulations.

Obviously, the Brazilian judicial system presents several deficiencies of structural character among others, fact that is extended to the other fields of law and not only around Environmental Law. This, on the other hand, can be realized with the previously mentioned society participation in the choosing process which will affect the society as a whole; besides the assumption of an educational and judicial structure compatible with the level of ecological sustainability proposed at the art. 225, in the Constitution of the Federative Republic of Brazil.

The Federal Constitution of 1988 granted common competence to the Union, the States, the Federal District and the Municipalities to combat the pollution in any ways (art. 23, VI). It established also the legislative competence concurrent between the Union, the States and the Federal District, to exert control over pollution (art. 24, VI). Despite these competences, the precautionary principle is still implicit at art. 225, § 1º, V e VII, these legal provisions demonstrate the concern with the prevention of damage to the environment. This way, the Brazilian State has developed some instruments, inserting them in the constitutional field, so that it and the community can manage the risks, in order to guarantee an ecologically balanced environment for present and future generations.

Indeed, there must be preparation of the Law professionals, in order to confer most effectiveness to environmental regulations. The Judiciary represents a fundamental institution for defense of the ecologically balanced environment, and without its good action, the Administration as a whole gets out of external control in what affects the legality of its acts, and the Environmental Law in many opportunities it is not accomplished. Besides a coordinated action by the federal entities, it should be promoted the disclosure of risks (information), and the negotiation of limits or levels of risks of damage which the society proposes to bear, representing this way the exercise of shared responsibilities of environmental issues.

Finally, it is about the accomplishment of a complex task which involves actors and themes from several areas, such as actors from the Public Power and the civil society; education; exercise of citizenship; environmental justice, among others. The objective of the Research Group of Environmental Law is facing on several fronts which belong to the Environmental Law, especially what concerns the present day problems, having as purpose a Law which nowadays faces an important crisis related to its effectiveness, besides attempts of legal setbacks. That is why this group is important, for contributing to the academic-scientific elucidation and elucidation of the efficiency of that right, by means of researches, reflections and works.


References:
BELLO FILHO, Ney de Barros. Sociological and dogmatic suppositions of the fundamentality of the right to a healthy and ecologically balanced environment (Pressupostos sociológicos e dogmáticos da fundamentalidade do direito ao ambiente sadio e ecologicamente equilibrado). Thesis (Doctorate in Law) – Post Graduation Course in Law of Universidade Federal de Santa Catarina, Florianópolis, 2006.
BIANCHI, Patrícia Nunes Lima. Environmental certifications and international trade (Certificações ambientais e comércio internacional). 2ª ed. Curitiba: Juruá, 2008.
CAUBET, Christian Guy. The scope of risk in real world and judicial world (O escopo do risco no mundo real e no mundo jurídico). In: VARELLA, Marcelo Dias et al. Governo dos riscos: Rede Latino-Americana - Européia sobre Governo dos Riscos. Brasília: UNICEUB, 2005.
GIDDENS, Anthony. The politics of climate change (A política da mudança climatica). Translation by Vera Ribeiro. Rio de Janeiro: Zahar, 2010.
MENEZES, Paulo Roberto Brasil Teles de. Environmental law in the risk era: perspectives of change under emancipator view (O direito do ambiente na era de risco: perspectivas de mudança sob a ótica emancipatória). In: Revista de Direito Ambiental. Coord. Antônio Herman V. Benjamin e Édis Milaré, n. 32, oct./dec., 2003.
MEZZAROBA, Orides; MONTEIRO, Cláudia Servilha. Manual of research methodology of law (Manual de metodologia da pesquisa do direito). 6ª ed. São Paulo: Saraiva, 2014.
VEIGA, José Eli da. Sustainable development: the challenge of the 21st century (Desenvolvimento sustentável: o desafio do século XXI). Rio de Janeiro: Garamond, 2010.

1 GIDDENS, Anthony. The politics of climate change (A política da mudança climatica). Translation by Vera Ribeiro. Rio de Janeiro: Zahar, 2010. p. 88.

2 BRANCO, Samuel Murgel. Energy and environment (Energia e meio ambiente). 2. ed. São Paulo: Moderna, 2004. pp. 18-19.

3 VEIGA, José Eli da. Sustainable development: the challenge of the 21st century (Desenvolvimento sustentável: o desafio do século XXI). Rio de Janeiro: Garamond, 2010. pp. 171-72.

4 BELLO FILHO, Ney de Barros. Sociological and dogmatic suppositions of the fundamentality of the right to a healthy and ecologically balanced environment (Pressupostos sociológicos e dogmáticos da fundamentalidade do direito ao ambiente sadio e ecologicamente equilibrado). Thesis (Doctorate in Law) – Post Graduation Course in Law of Universidade Federal de Santa Catarina, Florianópolis, 2006. pp.18-19.

5 BELLO FILHO, Ney de Barros. Sociological and dogmatic suppositions of the fundamentality of the right to a healthy and ecologically balanced environment (Pressupostos sociológicos e dogmáticos da fundamentalidade do direito ao ambiente sadio e ecologicamente equilibrado). Thesis (Doctorate in Law) – Post Graduation Course in Law of Universidade Federal de Santa Catarina, Florianópolis, 2006. pp.114-15.

6 BELLO FILHO, Ney de Barros. Sociological and dogmatic suppositions of the fundamentality of the right to a healthy and ecologically balanced environment (Pressupostos sociológicos e dogmáticos da fundamentalidade do direito ao ambiente sadio e ecologicamente equilibrado). Thesis (Doctorate in Law) – Post Graduation Course in Law of Universidade Federal de Santa Catarina, Florianópolis, 2006. pp. 111-12.

7 BELLO FILHO, Ney de Barros. Sociological and dogmatic suppositions of the fundamentality of the right to a healthy and ecologically balanced environment (Pressupostos sociológicos e dogmáticos da fundamentalidade do direito ao ambiente sadio e ecologicamente equilibrado). Thesis (Doctorate in Law) – Post Graduation Course in Law of Universidade Federal de Santa Catarina, Florianópolis, 2006. pp. 118-20.

8 BIANCHI, Patrícia Nunes Lima. Environmental certifications and international trade (Certificações ambientais e comércio internacional). 2. ed. Curitiba: Juruá, 2008. p. 83

9 MENEZES, Paulo Roberto Brasil Teles de. Environmental law in the risk era: perspectives of change under emancipator view (O direito do ambiente na era de risco: perspectivas de mudança sob a ótica emancipatória). In: Revista de Direito Ambiental. Coord. Antônio Herman V. Benjamin and Édis Milaré, n. 32, oct./dec., 2003. pp. 127-30.

10 Terms used by Canotilho in the following work: CANOTILHO, José Joaquim Gomes. Juridicization of Ecology or ecologization of law (Juridicização da Ecologia ou ecologização do direito). In: Revista Jurídica do Urbanismo e do Ambiente. n. 4, dec. Coimbra: Livraria Almedina, 1995. p. 72.

11 CAUBET, Christian Guy. The scope of risk in real world and judicial world (O escopo do risco no mundo real e no mundo jurídico). In: VARELLA, Marcelo Dias et al. Governo dos riscos: Rede Latino-Americana - Européia sobre Governo dos Riscos. Brasília: UNICEUB, 2005. pp. 52-55.




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