Entre protetor-recebedor e protetor-pagador: estudo sobre os princípios que fundamentam a compensação por serviços ambientais no ordenamento jurídico brasileiro

Abstract

The theory of neoclassical environmental economics (or environmental economics), which emerged in the context of the post-industrial society, where the current development model was questioned for being socially unjust and ecologically harmful, began to develop a system of environmental control based on the insertion of economic instruments to reconcile environmental efficiency and economic efficiency. The use of these instruments, essentially driven by the theories developed by Pigou (1959) and Coase (1960), gave rise to the polluterpays principle (PPP) and the protector-recipient principle (PPR). These principles are enshrined in the Brazilian Federal Constitution, given the normative system designed to combine the economy and the environment, with the aim of achieving sustainable development (based on economic, social and environmental dimensions) within a model of Ecological Rule of Law. The central purpose of this thesis is to elucidate, considering the theoretical bases of the principles governing environmental economic efficiency, to what extent these should be applied to payments or compensation for environmental services in such a way as to ensure the efficiency of the economic, environmental and social dimensions of sustainable development. Based on an assessment of the Brazilian reality in terms of the concrete application of the polluter-pays and protector-recipient principles, there was a picture of state inefficiency in the internalization of negative externalities, as well as the characterization of two distinct categories of remuneration for environmental services in force in the legal system (for the internalization of positive environmental externalities), one for environmental services of a mandatory nature and the other for services of a voluntary nature, which we have called Indemnity PES and Reward PES, respectively. This triggered a reflection on the real suitability of remuneration instruments for environmental services in Brazil to their basic principles, where it was found that remuneration for environmental services provided on a mandatory basis (by legal obligation) is not covered by the precepts of the protector-recipient principle, with such payment falling within the logic of the protector-payer principle (protector-indemnifier), which comes from French law. Recognizing that the optimum (ideal) application of the principles, in the sense of defining metrics that justify the prevalence of one over the other, in an Ecological Rule of Law model, attracts the application of the primacy of ecological economics. Therefore, considering multidimensional efficiency based on the constitutional purpose of promoting sustainable development, it was established that the protector-pays principle has a lower efficiency potential than the protector-receiver principle. This establishes a new perception and application of the principles that govern the instruments aimed at promoting economicenvironmental efficiency in Brazil.