A RESPONSABILIDADE EXTRACONTRATUAL DO ESTADO PELO DANO AMBIENTAL EM DECORRÊNCIA DA OMISSÃO NO EXERCÍCIO DO PODER DE POLÍCIA.

Abstract

The intense increase of aggressions against the nature goods has terrified the humanity, since mankind has faced the uncertainty of its fate in the nature, experiencing disastrous environmental tragedies. Therefore, the human conscious concerns around this issue has reached the juridical conscious as well through the normalization, which is sometimes fragile and sometimes solid, however, clearly attempting to follow the transformations and the society perspectives. Thus, with the scope of ensuring and give effectiveness to the environment dictates, focusing on its preservation and protection for the present and future generations, the State, undoubtedly, develops a non substitutable role as far as environmental management is concerned. Thereby, the Public Power, as the tutor of the environment, endues itself with attributes and mechanisms the allows it to ensure the environmental safety, which qualifies themselves in powers that when inserted in the positive law create to the State special acting rights related to the public right. Such prerogative consists on the police power, which is a Public Power activity that has the goal of establishing limits and disciplines rightness, interests and freedom, ruling the acts or omissions, in order to promote the public interests and environmental preservation. As far as concerned to this aspect, when it comes to an environmental damage, no matter how deteriorated the nature is, affecting the collectiveness, it will require the State to take direct actions for the purpose of preserving the public interests, through the police power actions. Although, when the State doesn t act diligently, attending to the environmental juridical desiderata of promoting the natural resources protection, in other words, committing some arbitrariness that doesn t match to the finality being pursued, the State could then respond to the damage caused, administratively as well as in the civil and penal spheres. Therefore, the State will be characterized as the indirect polluter, since it hasn t shown any actions to avoid or put away the environmental damages. Furthermore, the extra contractual State blameworthiness causes some juridical consequences, such as the objective responsibility appliance and the State joint liability to the real damage causer (direct polluter).