Reurb-S em áreas de preservação permanente e a compensação ambiental, sob o prisma do princípio da proporcionalidade: dois pesos, duas medidas?

Abstract

The development of urban centers without planning and with deficient public policies leads to problems in the most diverse areas, among them, the right to housing, which results in informal urban condominiums, where families settle in places susceptible to disasters, without having access to existential minimum, which violates the dignity of the human person. Therefore, land regularization is the subject of multiple debates, as projects and laws regulating this issue have been implemented over decades, but most of them have proven to be ineffective. To this end, Law No. 13,465/2017, which provides for the Reurb, which aims to regularize informal urban centers, serving both the low-income population, known as Reurb-S, the difference in this Law is the possibility of the nucleus being regularized partially or entirely inserted in a Permanent Preservation Area, however, a technical study is required to be prepared by an environmental agency, which analyzes whether through interventions there will be an improvement in environmental conditions in relation to the previous situation. However, the normative provision does not provide for the environmental damage generated to be compensated, it only states that this will occur when appropriate. To this end, three specific objectives were established, namely: to investigate whether the non-obligation of environmental compensation when the Reurb in APP is carried out exempts the person causing the damage from carrying it out; analyze environmental compensation through the principle of proportionality; observe how the lack of obligation to compensate for environmental damage in APPs interferes with the development of socio-environmental issues, as well as collective rights. Using the operational logic of the hypothetical-deductive method, a bibliographic search was carried out in books, periodicals, case law and legislation. It was possible to conclude that there must be consideration when interpreting the device, with this, the principle of proportionality has the ability to bring equal applicability in the resolution, with environmental compensation being applied, which is not excessive, nor insufficient, but rather considered, opposing weights and its measurements.