The building of a new Environmental Law

Abstract

Environmental law is a “sign of our era” ( JORDANO FRAGA). It is a young law, which presents a revolutionary matrix, atypical, and orphan of the classic boxes of law. It is an autonomous right as well as heteronomous. A transversal, “horizontal”, invasive right, a new right. "Heretic, mutant and decoder" (LORENZETTI). It has two faces. It is dual, two-headed or two-faced. It has two faces: "one that looks to the past and the other to the future" (ALENZA). It is the "engine of change" of a new legal culture. It is a right of collective incidence, of community membership, referring to the collective good of the environment. It is a right of the vulnerable, which equates unequal (which especially protects nature, a scarce common good, in virtual collapse).

The COVID 19 pandemic, a zoonosis, the “environmental black swan” (LORENZETTI), which severely affects planetary humanity at this time, poses an enormous challenge or challenge of transformation, to the specialty, due to social demands. It is necessary, in this context of sanitary and public health emergency, to give an urgent response to these mega-problems. Environmental law is not a "stone guest" of the pandemic.

Thus, we must rethink the box of legal tools available to law in general, and environmental law in particular, based on the principles of environmental law, precaution, prevention, intergenerational equity and responsibility, in defense of operation and sustainability. of ecosystems, an ecocentric or systemic approach, leaving aside the anthropocentric or classical dominance approach of individualistic basis, prioritizing environmental principles and values, in the face of the danger of serious or irreversible damage, even in the face of the lack of absolute scientific certainty (principle precautionary), giving place to the modern principle of "in dubio pro natura", to anticipate the barriers of defense of the environment, and avoid environmental deterioration, causing these zoonoses, which are repeated chronically, in the last fifty years (SARS, MERS, GRIPE A, EBOLA, among other epidemics).

It is highlighted that the neoconstitutionalism of this time (and Constitutional Private Law), gives birth to a higher right, endowed with binding force even for the legislator, whose unity lies in the Constitution, in a set of higher principles and values (ZAGREBELSKY), the emergence of two phenomena of Copernican changes in the matter, of an environmental jurisprudence adopted by the Superior Courts of Justice in Comparative Law - especially in climate litigation - loaded with principles, and the active role of the judge, in the defense of the environment.