Abstract
The problem to be addressed in this article is related to the precautionary principle and its incorporation into the Brazilian law. As it is beknown, this principle has been widely cited by Brazilian case law and it is an important part of the legal and environmental scholarly production. However, it follows that its application has been made fairly randomly, and even so there is no clear and operational definition of its content. The hypothesis being examined is that since the Rio Declaration’s - in its translation into Portuguese - environmental legislation has termed as legal principle, which internationally is an approach, a precautionary measure, as can be seen in both the texts in English and French of the Rio Declaration and other relevant legal instruments. The methodology to be used is the research of the case law and relevant legal rules, as well as the examination of the scholarly production on the subject. As a result, the conclusion is that there is an overuse of the precautionary principle by the Brazilian courts, especially by the Superior Court of Justice and that, in this case, the Federal Supreme Court has played a moderating role in relation to the application of the precautionary principle.
Highlights
This article aims at demonstrating how the precautionary principle (“PP”) was incorporated into the Brazilian law, initially through documents of international public law and, later on, through its explicit adoption by national laws and, how it has been interpreted by the Judiciary Branch with an emphasis on the Federal Supreme Court (“STF”)
One of the great difficulties regarding PP derives from the fact that legal principles reflect a consolidated legal tradition that is called to offer solutions to concrete hypothesis regarding which the existing rules are omissive and that has been used since the ancient Roman jurisprudence (GUSMÃO, 1997)
A “new principle”, poorly defined, prematurely given constitutional status – as it is possible to understand from different decisions issued by the STF, spreads throughout the Brazilian environmental legal order, requiring suitable understanding from its interpreters under the penalty of changing into an instrument of non- environmental policy, a general negative for the practice of activities and research at the frontier of knowledge
Summary
This article aims at demonstrating how the precautionary principle (“PP”) was incorporated into the Brazilian law, initially through documents of international public law and, later on, through its explicit adoption by national laws and, how it has been interpreted by the Judiciary Branch with an emphasis on the Federal Supreme Court (“STF”). It is interesting to see that, since the Conference of the United Nations on Environment and Development (“Rio 92”), the Brazilian state has adhered to the PP surprisingly, the Executive Branch, through its environmental control and risk assessment agencies, has not been able to set directives and guidelines for its application to concrete cases as an environmental policy measure. As this paper expects to be able to demonstrate, it is necessary to set forth clear administrative guidelines as how and under what circumstances the PP is to be applied as an instrument of risk management, under the penalty of building a principle that is excessively casuistry, legally built and, unable to express broader environmental policies. The article is closed with the conclusion that the decisions issued by the STF should serve as a guide to Brazilian courts – including the Superior Court of Justice – that should restrict the application of the PP to the cases that involve scientific uncertainty
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