Reparação do dano ambiental: os fundos financeiros como instrumento jurídico complementar à responsabilidade civil

Abstract

Civil liability, a mechanism traditionally employed by Law to remedy losses, has not been able to satisfactorily repair environmental damages, which violates the 1988 Constitution and prevents the implementation of the fundamental right to an ecologically balanced environment, among other fundamental rights. Such condition, aggravated by the intensification and complexity of contemporary environmental risks, calls for a reflection on complementary reparatory mechanisms. This thesis investigates the extent to which trust funds - instruments lacking further studies in Brazilian legal literature - can be used complementarily to civil liability to improve the redress of environmental damages in Brazil. To accomplish this goal, it analyses, at first, the reasons for the insufficiency of environmental civil liability, identifying its main deficiencies. Next, the concept, the legal nature and the ways in which environmental damages redress funds can be structured, financed and operated are examined, based on models of analysis implemented in International Law (IOPC Funds), in Comparative Law (USA, Canada, Portugal and Spain) and under Brazilian Law. Finally, a comparison is made between the advantages and shortcomings of the above-mentioned reparatory mechanisms, ascertaining how funds can overcome or mitigate the difficulties faced by environmental civil liability and in which aspects they are also problematic in the redress of environmental damages. The research carried out: has an applied, theoretical, descriptive and explanatory nature; employs indirect documentation techniques (documentary and bibliographic research); works with purposive non-probabilistic sampling; has a qualitative approach and relies on inductive and deductive reasoning, as well as in the functionalist method in the study of Comparative Law. It was found that environmental damages redress funds can circumvent the problems of proof of causal link, insolvency of the polluter and latency of environmental damages. They can also ease the slowness of lawsuits and facilitate the economic valuation of environmental damages. Funds, however, have been of limited use in repairing cross-border damage. In addition, the measurement of their capacity to reduce the costs of civil liability seems to demand relevant statistical data, requiring further research.