THE PRECAUTIONARY PRINCIPLE IN THE BRAZILIAN ENVIRONMENTAL LAW

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Paulo de Bessa Antunes

Resumo

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.

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Biografia do Autor

Paulo de Bessa Antunes, Universidade Federal do Estado do Rio de Janeiro UNIRIO

Doutorado em Direito pela Universidade do Estado do Rio de Janeiro (UERJ). Mestrado em Direito pela Pontifícia Universidade Católica do Rio de Janeiro (PUC-Rio). Professor da Universidade Federal do Estado do Rio de Janeiro (UNIRIO). Procurador Regional da República.