Conflitos socioambientais complexos e o papel do poder judiciário: uma abordagem sobre o direito à moradia em áreas de preservação e a condução dialógica dos processos

Abstract

From the second part of the 20th century, questions related to the environment started to occupy more emphatically the guidelines for action by the public authorities, given the greater awareness of the humans related to the limits of natural resources. In Brazil, the 1988 Constitution stated the right to an ecologically balanced environment, foreseeing tools for its protection. Notwithstanding these predictions, the Brazilian territory extension, which has several areas subject to environmental protection, with the absence of effective governmental action regarding the inspection of those spaces, makes it possible to occupy them irregularly, generally by poor people that make those places their home. This paper seeks, in the context, to analyze class actions filed with the scope of resolving socio-environmental disputes, notably those that involves the existence of housing in preservation areas, evidencing the relevance of the dialogic method, within the new conception of the civil procedure of public interest, for the resolution of this type of conflicts considered of high complexity. For that, the parameters for judicial action in complex collective disputes, approaching the jurisprudence of the Superior Court of Justice, as well as dealing with the values and principles that should guide the degree of the judicial intervention in the factual implementation of fundamental rights. It was identified that, within the scope of collective jurisdiction, differentiated alternatives have been prioritized in the conduction of the actions, such as the holding of public hearings and the adoption of negotiated orders, showing dialogue, in this field, as an important tool in obtaining plural procedural debate, qualitative and transparent between the parts, the interested population and the public entities responsible for carrying out the measures discussed in the dispute. The adopted methodology in this paper consisted in literature review and jurisprudence research, even analyzing a factual case related to a complex collective socio-environmental action. It was possible to conclude the dialogic model of conduction these processes favors the effectiveness of decisions and the adequate production of their effects, based on equal deliberation and the construction of consensus, within the concept of a material contradictory within a democratic process. In this case, is allowed that an active participation of the procedural actors and the population affected by the conflict be encouraged, with the aim of obtaining a fair and legitimate decision, considering all the important aspects to the outcome of the fact.