The polluter pays principle in the Brazilian superior courts: A critical analysis

Abstract

The acknowledgment of the - importance and potential - of the polluter pays principle has the power to strengthen the various legal and environmental instruments dedicated to promoting the equitable distribution of socio-environmental burdens and bonuses and the realization of the fundamental right to a balanced environment. This text is the result of a research carried out in 2014 and updated in 2017 and 2018 on the application of the polluter pays principle by the Federal Supreme Court (STF) and Superior Court of Justice (STJ) in Brazil. The main objective was to critically analyze how this principle - considering its historical origin, relevance and scope - has had an impact on the case law regarding the legal protection of the environment, considering the efforts to make the fundamental right to a balanced environment effective. The study comprised a bibliographical and documentary survey, together with cataloging and critical analysis of the selected material; the methodology included a survey, systematization and qualitative analysis of rulings issued by the Courts in the period from 1993 to 2018 within the scope of STF and STJ. In relation to its remedial aspect, the polluter pays principle has played an important role in boosting environmental civil liability; it has worked as a theoretical guideline for the solution of several of the challenges to the relief for environmental damages. As for the preventive aspect of this principle, which is equally relevant for a better application of tools to enforce distributive justice in environmental matters, it was possible to verify its significant underutilization.