O processo estrutural para a contenção do estado de coisas inconstitucional ambiental: um estudo de caso na Bacia Hidrográfica do Rio Camaquã/RS

Abstract

The ecologically balanced environment, preserved for the present and the future generations, consists of a true fundamental right in the Brazilian constitution. However, in the current environmental crisis lived in the country, a massive and systematic violation of the environmental right is verified, also affecting other relative rights (for example, the right to live and the right to health). It’s called the Environmental Unconstitutional State of Affairs, a concept from the Colombian jurisprudence which is used as a hermeneutic parameter by the Supreme Court, including in environmental matters. The Structural Process, in its turn, consists of a new way of thinking about the Civil Process, so that it truly acts as an instrument in favor of social changes and the implementation of public policies and fundamental rights, through a dialogue process, with consensual solutions. That said, the objective of the present research is to study the Environmental Unconstitutional State of Affairs and the Structural Process in an interrelated way, applying such concepts to the regional reality of the Camaquã River Watershed, located in the state called Rio Grande do Sul. Specifically, after studying the institute of the Environmental Unconstitutional State of Affairs and investigating the possibility of its characterization in the Camaquã River Watershed, this research investigates the main characteristics and potentialities of the Structural Process for the realization of the fundamental right to a balanced ecological environment, notably from the use of this instrument in emblematic structural cases, namely the processes related to the environmental disasters of Mariana/MG and Brumadinho/MG and the Coal process, related to the environmental recovery of the coal mining area of Criciúma/SC. In this way, the study aims to answer whether the Structural Process can contribute to the containment of the Unconstitutional Environmental State of Affairs characterized in the Camaquã River Watershed. Therefore, a qualitative research is carried out, using the hypothetical-deductive approach method and the techniques of document review and case study. There are two preliminary hypotheses, which in the end were confirmed: there is a true Environmental Unconstitutional State of Affairs in the Camaquã River Watershed and the Structural Process can be a great instrument for the realization of the fundamental right to the healthy environment. The study is justified because of its originality to apply theoretical references, established in the doctrine, to the regional reality, aiming to fulfill the proposed objective.