Judicialização da caducidade do decreto de declaração de utilidade pública para desapropriação de imóveis inseridos em unidades de conservação

Abstract

This thesis analyzes how the judicialization of the expiration of the decree declaring public utility for expropriation of properties located in conservation units occurs. The problem is addressed by analyzing the origin and evolution of environmental laws limitations on property rights; the origin and evolution of the expropriation of real property; the relationship between the conservation model through parks and the expropriation of real property; the types of legal actions proposed, how many and what are the decisions of the Superior Court of Justice, Federal Regional Courts and State Courts; the arguments used by the litigators and how these arguments can be analyzed from a legal, economic and social perspective, with a constitutional focus; and through a case study of the Serra Ricardo Franco State Park. It is noted that environmental protection limits property rights, and that expropriation laws are a guarantee for individuals against the government. The delay in the implementation of conservation units leads to the existence of "paper parks," which causes legal and social conflicts. One attempt at a judicial solution to the controversy is the judicialization of the expiration of the expropriation decree, and on this topic, the jurisprudence of the Superior Court of Justice has shallow and predominantly positivistic foundations. The use of Alexy’s ponderation method and of constitutional rules leads to the conclusion that Article 10 of Decree-Law nº 3,365/41 is not applicable to properties located within conservation units. Therefore, the judicialization of this issue is not the most appropriate solution to the "paper parks" legal problems, as it encounters the limits of jurisdiction, otherwise the typical activities of the other branches of government would be usurped. The appropriate management of "paper parks" lies in the integration of human activity with environmental preservation, but this regulation must necessarily be addressed by the executive and legislative branches.