A teoria das capacidades institucionais em matéria ambiental: uma análise jurisprudencial no Tribunal de Justiça do Estado do Maranhão

Abstract

The present research has as objective to analyze if the Judiciary, with respect to the Court of Justice of the State of Maranhão, is in better condition and in a better institutional position, in comparison to other institutions, to decide environmental questions, based on criteria consequentialist. For this, the study is based on the institutional capabilities theory of Cass Sunstein and Adrian Vermeule and the American model. Faced with the constitutional filter, national and international doctrine on the subject, decisions of the Federal Supreme Court, the Superior Court of Justice and the provisions of the New Code of Civil Procedure, we intend to approach the subject based on a specialized bibliographic review based on the method deductive, to defend the hypothesis that, based on Cass Sunstein and Adrian Vermeule's Institutional Capability theory, which establishes assumptions for consequentialist decisions, they are essential for the proper application of the law and that there is no basis in the decisions environmental issue of the Court of Justice of the State of Maranhão, analysis of this type. In the end, the performance of North American technical and independent agencies is compared with the countries, given that the latter were created to resemble the latter, in what concerns the specific action of environmental protection. The comparative study of the agencies is justified by the need for knowledge that goes beyond the object of the law in isolation, as an alternative to the rationalization of judicial costs and judicial activism, leaving the Judicial Branch, when provoked, restricted to manifestations that consider the capacities of as well as the complexity of the topic. In addition, constitutional interpretation is proposed with a function and ability to reduce or keep under control the chances of error and the decision costs in contexts, often of uncertainty and in which institutions can assume the onus of making choices, or review the already taken, by other institutions. A consequentialist analysis must consider, besides the argumentative exercise, empirical contributions and the definition of the real capacities of the institutions and the tensions between them. Since the claims of universality and argumentative exercise of certain solutions can find limits of reality itself, in which a "second best choice" can mean the implementation of a possible but nonideal reality, as opposed to the " first best choice "of ideal situations.