Os desafios à construção teórica e jurídica do estado de coisas inconstitucional ambiental no contexto amazônico: uma análise da ação de descumprimento de preceito fundamental 760/2020

Abstract

Inserted in the context of Constitutionalism and Rights in the Amazon, focusing on addressing state institutions and socio-juridical pluralities, this research problematizes the challenges to the theoretical and legal construction of the Unconstitutional State of Affairs in the environment, concerning rights violations in the Legal Amazon. Initially conceived by the Constitutional Court of Colombia and first applied in Brazil through the Direct Action of Unconstitutionality (ADI) No. 347 in 2015, the application of this decision-making technique has requirements for its configuration, which are still not well-defined in Brazilian legal system, thus generating legal uncertainty and warranting further study. From this perspective, the general objective of the research is to identify the challenges to the theoretical and legal construction of the Unconstitutional State of Affairs in the Environment, through the analysis of ADPF 760/2020. The specific objectives of the research include: a) analyzing the complex context of the Amazon and its relationship with structural decisions and the unconstitutional state of affairs in the environment; b) addressing the concept of the Unconstitutional State of Affairs, the necessary elements for its theoretical and legal construction, aiming to identify the requirements for its application through the analysis of ADPF 347/2015 and ADPF 760/2020; and c) discussing the challenges to the theoretical and legal construction of the theory of the Unconstitutional State of Affairs, based on the analysis of ADPF 760/2020, in order to determine if the requirements for applying the Unconstitutional State of Affairs decision- making technique could fit into the Legal Amazon scenario. For this purpose, the methodology used comprised literature review, case study, and hypothetico-deductive method, as these were the most suitable tools to approach and deepen the implications of the research subject, involving bibliographic and doctrinal review of scientific articles, doctrines, legislation, and related case law. Regarding technical procedures, the case study method was employed, focusing on ADPF 760/2020, as it was fundamental for the development of the theme, allowing for the analysis of jurisprudential and doctrinal cases, particularly the comparison between national and international authors. Finally, this scientific research proves necessary and of utmost importance to catalog data, provide legal certainty, and enhance the effectiveness of institutions in ensuring respect for rights enshrined in the Federal Constitution and upholding the principles of the Brazilian democratic rule of law.