Trawling in the Brazilian State of Amapá: An Analysis of ADI 861/AP

A Pesca de Arrasto no Estado Brasileiro do Amapá: Uma Análise da ADI 861/AP

La Pesca de Arrastre en el Estado Brasileño de Amapá: Análisis de la ADI 861/AP

Abstract

The purpose of this article is to evaluate trawling in the Amazon region, focusing on the Brazilian state of Amapá, and to analyze the role of the Supreme Court in promoting public policies related to industrial trawling in the case of Direct Action for Unconstitutionality (ADI) No. 861/AP. To this end, a qualitative approach was applied through a literature review, documentary analyses, and exploratory investigative methodology, based on the ADI No. 861/AP, and on bibliographic material on public policy formation. The objective is to check and correlate whether the final and unappealable decision in ADI No. 861/AP can be seen as a means of controlling public policy in alignment with SDG 14 and the UN Ocean Decade, and whether it is capable of upholding fundamental constitutional environmental rights.

Keywords:
Amazon; sustainable development; fishing; blue economy; public policies

Resumo

O presente artigo tem por objetivo avaliar a problemática da pesca de arrasto na região amazônica, com o foco no estado do Amapá, e analisar o papel do Supremo Tribunal Federal (STF) na promoção de políticas públicas relacionadas à pesca industrial de arrasto no caso da Ação Direta de Inconstitucionalidade (ADI) nº 861/AP. Para isso, utilizou-se da abordagem qualitativa, com metodologia bibliográfica, documental e exploratória investigativa tendo como base o texto da ADI em questão e em material bibliográfico a respeito da construção de políticas públicas. Buscou-se verificar e correlacionar se a decisão transitada em julgado em sede da ADI nº 861/AP pode ser entendida como instrumento de controle de política pública em consonância com o ODS 14 e a Década do Oceano da ONU e se é capaz de promover os direitos fundamentais ambientais constitucionais.

Palavras-chave:
Amazônia; desenvolvimento sustentável; pesca; economia do mar; políticas públicas

Resumen

El objetivo de este artículo es evaluar la pesca de arrastre en la región amazónica, con foco en el estado brasileño de Amapá, y analizar el papel de la Corte Suprema en la promoción de políticas públicas relacionadas a la pesca de arrastre industrial en el caso de la Acción Directa de Inconstitucionalidad (ADI) nº 861/AP. Para esto, se utilizó un enfoque cualitativo, a través de una metodología de revisión bibliográfica, documental y de investigación exploratoria, a partir de la ADI en cuestión y de material bibliográfico sobre formación de políticas públicas. Busco se comprobar y correlacionar si la decisión final e inapelable de la ADI nº 861/AP puede ser entendida como un instrumento de control de políticas públicas en línea con el ODS 14 y la Década de los Océanos de la ONU y si es capaz de promover derechos ambientales constitucionales fundamentales.

Palabras-clave:
Amazonia; desarrollo sostenible; pesca; economía del mar; políticas públicas

Introduction

Environmental management faces problems that aggravate the degradation of biomes, causing social and economic impacts and directly affecting Brazilian development. In view of the urgency of promoting good environmental health in line with sustainable development practices, global initiatives seek to address problems that affect the preservation and protection of ecosystems, which has been recognized within the framework of the 2030 Agenda for Sustainable Development of the United Nations (2030 Agenda).

When it comes to the health and protection of the ocean, we also need to consider the ongoing United Nations Decade of Ocean Science for Sustainable Development (well-known as the UN Ocean Decade). Moreover, as noted by Galbiati et al. (2022), environmental governance in Brazil has been established since the 1930s and it is presently coordinated by the cooperation among federal, state, and municipal agencies, alongside the private sector, civil society representatives, and social movements.

The terrestrial ecosystem cannot be disassociated from the marine ecosystem; thus, maintaining the health and sustainability of activities carried out in the ocean is essential to guarantee life in terrestrial biomes, as both ecosystems directly impact each other. Therefore, this article presents the problem of the use of the trawling technique in the Brazilian state of Amapá (AP), whose territory is in an area of the Amazon rainforest.

The trawling technique consists of using fine-meshed nets pulled by boats and scraping the ocean floor in search of animals of economic value (Bourscheit, 2021). This technique has low selectivity since the net catches everything it finds along the way (Zamboni, 2020) and the species that do not have economic interest are returned to the sea (Bourscheit, 2021), usually dead. It is estimated that up to 90% of the species caught in trawling are thrown back into the ocean lifeless (Zamboni, 2020).

This impacts negatively on the environment and the local population whose livelihood comes from artisanal fishing, as it reduces the capacity to produce food and income, as well as the resilience of marine biological diversity (Zamboni, 2020). Furthermore, trawling reduces the biodiversity found on the edges of marine protected areas by up to 60% compared to the interior of these regions (Bourscheit, 2021). We must also mention the contribution of this technique to the increase in the planet’s temperature since the marine sediments destroyed turn into gas deposits, that can aggravate the greenhouse effect (Bourscheit, 2021).

Trawling is responsible for 50% of global fish waste, although it only contributes less than 20% of fishing production (Dias, 2020). According to the same author, trawling results in the wastage of up to 14 kilograms of fish for every kilogram utilized; besides, in other situations, the waste is even greater, reaching 50 kilograms of animals thrown away for just 1 kilo of utilized fish. The reduction in the volume of fish in the regions close to the coast ends up pushing the use of trawling further into the ocean in search of more shoals (Bourscheit, 2021).

The Brazilian government’s challenges in effectively managing the issue of trawling stem from poor data collection (and, consequently, the impossibility to keeping it updated), a lack of statistics, weak monitoring, and the absence of proper management (Bourscheit, 2021). This inevitably affects decision-making related to the implementation of marine public policies. Also, due to Brazil’s extensive coastline, the Union, 442 municipalities, and 17 member states are involved in coastal management (Prizibisczki; Lisboa, 2021)¹. Thus, it is no surprise that public policies on fishing in Brazil are formalized through laws that together form a tangled web of regulations that do more harm than good in combating the consequences of trawling (Bourscheit, 2021).

In the context of the degradation of the marine biome and the relationship between Law and Public Policies focused on the Brazilian sea, the judicialization of the public policy of the state of Amapá on trawling and accompanying fauna should be considered in the context of constitutionality control. Therefore, the purposes of this article are to expose the problem of trawling, with a focus on the state of Amapá, and to analyze the role of the Brazilian Supreme Court (STF) in promoting public policies related to industrial trawling in the case of ADI nº 861/AP². The secondary purpose is to establish a link between the fundamental right to an ecologically balanced environment, the SDG 14, and the UN Ocean Decade in the context of the use of trawling in Brazil.

In this way, it is aimed to answer the following question: can the final and unappealable decision in ADI No. 861/AP be understood as an instrument for controlling public policy, in line with SDG 14 and the UN Ocean Decade, and capable of promoting fundamental constitutional environmental rights?

To this end, the qualitative methodology was adopted, with bibliographical, documentary, and exploratory research. Hence, the ADI No. 861/AP was analyzed, and bibliographic material was sought in order to understand the formulation of public policies in Brazil correlating it with the theme and, consequently, understanding whether the final and unappealable decision of the ADI could be considered an instrument of public policy control in line with SDG 14 and the Ocean Decade. In addition, the official UN documents and available bibliography on the 2030 Agenda and the Ocean Decade were analyzed with the intention of answering the research question of this paper.

It is worth mentioning that exploratory investigative research is appropriate when used in applied social sciences, as it allows us to trace how binding acts when directing some action or lack thereof (Dias; Gustin; Nicácio, 2020). This role falls to both those who interpret the norm and those who draft them, and it is therefore appropriate when analyzing the issue of ADI and the STF.

Finally, this article is divided into 3 sections: 1) The 2030 Agenda and the UN Ocean Decade in the context of industrial trawling; 2) Judicial provision in the promotion of public policies; and 3) Direct Action of Unconstitutionality No. 861 (ADI 861) and trawling in the state of Amapá: socioeconomic and environmental public policy in the Brazilian Supreme Court (STF); and final considerations.

The 2030 Agenda and the UN Ocean Decade in the context of industrial trawling

In 2015, the UN adopted the 2030 Agenda for Sustainable Development with the approval of the document “Transforming Our World: the 2030 Agenda for Sustainable Development”, an initiative that is configured as an action plan for people, the planet, and prosperity through the strengthening of peace, cooperation, freedom, the principle of sustainable development and the eradication of poverty (UN, 2015). This Agenda should provide the basis for global action on issues such as the protection and sustainable use of terrestrial and aquatic ecosystems, food security, reducing inequalities, health, water, and sanitation, among others (Hwang; Kim, 2017, p.18).

The 17 Sustainable Development Goals (SDGs) and its 169 associated targets that make up the 2030 Agenda seek to realize human rights based on the concept that these rights are complementary, and that strengthening one implies consequences for the others (UN, 2015). Along these lines, it is understood that the themes (SDGs) of the 2030 Agenda can be grouped into four main dimensions: environmental, social, economic, and institutional (Santos; Santos, 2017). The signatories of the 2030 Agenda, including Brazil, must adopt public policies aimed at implementing the SDGs and their associated targets.

In view of the burden on the environment, including the aquatic and marine environment, it is essential to develop more sustainable forms of production. The bioeconomy is a viable alternative, as it is based on the production of materials, energy and chemical products derived from renewable biological resources (McCormick; Kautto, 2013; Silva; Lima; Lima, 2023).

Based on the alarming conclusions of the First World Ocean Assessment (WOA), which demonstrated the vulnerability of marine ecosystems and the negative implications of their degradation for human beings, in 2017 the UN inaugurated the Decade of Ocean Science for Sustainable Development (Brasil, 2022), also known as the UN Ocean Decade. This decade seeks to reinforce the commitment of the UN 2030 Agenda, and the 17 SDGs must be then considered in the light of the SDG 14 (life below water) (Fernandes, 2021).

The Brazilian Judiciary has institutionalized the 2030 Agenda and has adopted an indexing system which shows the SDGs addressed in the lawsuits (Conselho Nacional de Justiça, 2022). The STF database indicates that ADI no. 861 is related to SDGs 8 (decent work and economic growth), 12 (responsible consumption and production), and 14 (life below water).

The role of judicial oversight in promoting public policies

According to Secchi (2017), public policy is a guideline (presented through action or omission) which purpose is to solve a public problem. Although the State is the most significant actor, several other actors also play roles in the public policy cycle, including influencing the decision-making process³. Based on the relationship between law and public policy, Bucci (2006, p. 39) developed the following concept of public policy:

Public policy is the program of government action that results from a program or set of legally regulated processes - electoral process, planning process, government process, budget process, legislative process, administrative process, judicial process - aimed at coordinating the means at the State’s disposal and private activities to achieve socially relevant and politically determined objectives (own translation).

The Law and Public Policy approach considers that infra-constitutional norms (such as decrees, ordinances, and regulations) are just as relevant as the norms that establish the major guidelines and programmatic commands (Bucci; Coutinho, 2017). This is because they are responsible for giving substance to the implementation and articulation of public policies on a daily basis, promoting constitutional norms (Bucci; Coutinho, 2017).

Along these lines, Coutinho (2013) identified three roles for law in public policy, namely: (i) law as an objective; (ii) law as an institutional arrangement; and (iii) law as a vocalizer of demands. The author emphasizes that this is not an exhaustive list and that it is possible for roles to overlap in some cases. For this reason, in addition to formalizing and guiding public policies, the law “is also constitutive and central to their functioning, evaluation, improvement and replacement” (Bucci; Coutinho, 2017, p. 317).

In examining the relationship between Law and Public Policy, one cannot overlook the role of the judiciary in the public policy cycle, particularly through the phenomenon of judicialization. Barboza and Kozicki (2012) observe that the term “Judicialization” became prominent in the latter half of the 20th century, as a new democratic framework emerged across Latin America, Eastern Europe, and Africa.

The framework adopted by the 1988 Constitution of the Federative Republic of Brazil was essential to facilitate the expansion of this phenomenon (Barboza; Kozicki, 2012). Beyond interpreting and applying the rules of the national legal system, judiciary under the 1988 Constitution is also tasked with judicial control over normative acts, including those relating to public policies, in a mixed manner. This means that judicial control may be exercised by a single entity (concentrated control) or by any judge or court (diffuse control) (Lenza, 2013).

It shall not be forgotten that judicialization is enabled by the recognition of the fundamental right to access to justice, established in Article 5, item XXXV of the 1988 Constitution, and the judiciary is prompted to act when called (Barreiro; Furtado, 2015). Judicialization is a legal phenomenon with political-social dimensions, where the Judiciary is compelled to weigh in on the Executive and Legislative branches, especially when public policies clash with human rights, including the right to a healthy and balanced environment and its consequences, in order to establish standards to prevent the regression of its promotion and protection (Barroso, 2012, p. 6-7).

Judicial control over public policies can be examined from four dimensions. According to Taylor (2007), the first dimension considers when and how judiciary influences public policy. The second dimension explores the motivations behind the judicial decisions on public policy. The third dimension relates to the judiciary as a tool for social actors, that once enacted, public policy can be challenged in court by various groups. The fourth and final dimension concerns the consequences of judicial interference in public policy.

Even though the Judiciary’s response is considered reactive (since it needs to be demanded), the impact of its decisions on public policies is undeniable and requires case-by-case analysis (Taylor, 2007). In this context, judicial oversight in public policy control assesses the actions of the Legislative and/or the Executive Branch to either disapprove it (in whole or in part) or validate them. A judicial decision that disapproves a public policy can have significant social structuring effects (Valle, 2017).

In view of the above, it is clear that courts play an important role in the public policy cycle, influencing the implementation of policies by public agents to safeguard constitutional rights. The following section will analyze the jurisdictional control exercised by the STF concerning public policy implemented by Amapá through Law 64/1993.

ADI 861 and trawling in the Brazilian state of Amapá

The Amazonian region has many specificities, and it is necessary to focus on the implementation of the development (Maciel, 2022). It may be done by observing sustainability, preserving the ecosystem health, and ensuring that benefits are distributed equitably across society (Almeida et al., 2022). In a nutshell, it is essential that public policies point to a sustainable management of natural resources.

Public policies for Brazilian fisheries management have historically had serious weaknesses, which manifest in the absence of data collection, monitoring, and systematic applied research (Dias, 2020). The result is ineffective fisheries governance and critical stocks due to uncontrolled exploitation. Dias (2020, p. 11) observes that there is a little data available on Brazilian fish stocks, which is a significant impediment to an effective fishery management. Additionally, between 2004 and 2014, the number of endangered stocks increased by 374% and the population of some fish species, like scallop rays and angelfish, have been estimated to be reduced by more than 80% because of the continuous trawling (Dias, 2020).

Although ADI 861 was filed before the creation of SDG 14 and the UN Ocean Decade, the ruling that presented the final decision of this action (dated 2020) establishes a connection with these global agendas. This is because it centers on a theme of recognized importance for the preservation of marine biodiversity: the problem of trawling exploitation and accompanying fauna, as well as the implementation of parameters for the sustainable use of these resources.

The case was brought to court on April 16, 1993, through Direct Action for Unconstitutionality No. 861 (ADI 861) filed by the Governor of the state of Amapá against the Amapá’s state Law No. 64/1993. This Amapá state legislation addresses “industrial shrimp trawling and the compulsory use of the accompanying fauna of this fishery off the coast of the State of Amapá” (Brasil, 2020, p. 4).

The then Governor of the state of Amapá argued that the state law was unconstitutional⁴, and stated that he had fully vetoed the bill, but that his veto was overridden, and the law was subsequently promulgated (Brasil, 2020). The Governor’s main argument contended that the State Legislative Assembly overstepped the Union’s exclusive legislative competence, imposing unenforceable obligations on the Executive Branch, and violating the principle of separation of powers by inappropriately setting limits on the practice of the profession (Brasil, 2020).

On July 1, 1993, the Plenary of the Supreme Court unanimously granted the preliminary injunction in part⁵. In his vote, Justice Néri da Silveira, argued that, in principle, it is not appropriate to establish the incompetence of the federative entity to regulate the supervision of fishing, which aims to control predatory activity and the greater use of accompanying fauna, as well as the management of its waste, given that there is a provision for joint responsibility between the Union and the states (Brasil, 2020). However, the Justice emphasized the relevance of the claim of state legislative incompetence concerning the provisions that deal with foreign and domestic boats carrying capacity, the percentage of fish landings intended for human consumption, and discrimination between companies based on the state of origin (Brasil, 2020).

With Federal Supreme Court Justice Rosa Weber as rapporteur, the judgment of the ADI began on February 28, 2020, and ended on March 6, 2020, with a final and unappealable judgment on June 16, 2020 (Brasil, 2020). According to Justice Rosa Weber, the Union, the member states, and the Federal District have concurrent jurisdiction to legislate on fishing, nature conservation, and liability for environmental damage⁶. Justice Rosa Weber also pointed out that Amapá’s competence to legislate on industrial shrimp fishing by trawling and the compulsory use of the accompanying fauna⁷. Furthermore, the Government must ensure the right to a healthy and balanced environment⁸.

However, while on the one hand, the Union, the member states, and the Federal District have concurrent jurisdiction to legislate on fishing and environmental conservation⁹, on the other hand, the Union has exclusive jurisdiction to legislate on maritime law, transit, and transportation¹⁰, which includes matters related to vessels, as Rosa Weber pointed out (Brasil, 2020). By making foreign vessels leased for industrial shrimp trawling subject to compliance with specific requirements, Article 1(III) of Law No. 64/1993 is unconstitutional, as it infringes upon the Union’s exclusive competence to legislate on vessels (Brasil, 2020). In the same vein, Article 3, caput, of Law No. 64/1993 is unconstitutional because, by establishing differentiated treatment for companies based in the state of Amapá, it violates the principle of equality¹¹ (Brasil, 2020).

The Law 64/1993 establishes that the control of fishing effort is one of the criteria to be utilized by the authorities responsible for regulating fishing activities in Amapá¹² (Brasil, 2020). Fishing effort is defined as the ratio of the number of boats or fishing operations associated with a specific fishing activity (which in the case of the contested law is industrial maritime shrimp trawling) to its duration over a given period (Brasil, 2020). This is a technical parameter for the viability of sustainable fishing, which is essential to any marine resource management policy (Brasil, 2020).

The contested law seeks to establish a minimum parameter for controlling fishing power, the performance of vessels, and the volume of accompanying fauna wasted, within the framework of concurrent jurisdiction¹³ (Brasil, 2020). It seeks to solve a public socio-economic environmental problem through a public policy of the same nature, embodied in a legal norm. Moreover, at this point, Law No. 64/1933 aligns with Article 170, item VI, of the CRFB/88, which provides for differentiated treatment based on the environmental impact of economic activity, and it is in harmony with Article 225, §1, items V and VII, of the Brazilian Constitution, an imperative for the preservation/protection of the environment (Brasil, 2020).

The Brazilian Constitution enshrined the right to a healthy and balanced environment as a fundamental right, and the environment is a common good (Antunes, 2021, Milaré, 2018), including the marine environment. In view of the importance of the legal asset, the Magna Carta established the responsibility of public authorities and society to preserve the environment for present and future generations (Antunes, 2021, Milaré, 2018).

Paulo de Bessa Antunes (2021, p. 60) highlights that this constitutional obligation gave rise to two distinct scenarios: (i) preventing degradation; and (ii) promoting the restoration of already degraded areas. As such, the Constitution mandates a duty to protect the environment. With an anthropocentric perspective, the constitutional guideline grants protection to animals and the environment in favor of the prevalence of the principle of human dignity (Antunes, 2021).

The provisions detailed in the items and paragraphs of article 225 of the 1988 Brazilian Constitution establish a list of obligations for the Government, which represent subjective rights that can be invoked by any individual at any time (Antunes, 2021). Due to its broad scope, article 225 enshrines both a list of actions/abstentions that do not need infra-constitutional legislation to support environmental public policies, and a list of actions/abstentions that require infra-constitutional legislation to support environmental public policies (Antunes, 2021).

This creates one of the most significant legal challenges in the context of conservation and use of the environment: the distribution of competences between the Union, the member states, the Federal District, and the Municipalities (Antunes, 2021). This issue is a subject of discussion in the context of the jurisdictional control of public policies undertaken in ADI No. 861/AP.

In this context, it is important to note that Law 64/1993 is aligned with the National Policy for the Sustainable Development of Aquaculture and Fishing (Law 11.959/2009). Finally, the Rapporteur’s vote emphasized that Article 4 of Law 64/1993 was clearly constitutional, since it provided for the liability of trawler boats for the damage they cause to artisanal fishermen, their boats, and equipment, as well as for the damage they cause to the environment, and found material support in 1988 Brazilian Constitution.

As stated above, on March 6, 2020, approximately 27 years after the ADI was filed, the Supreme Court finally issued its decision. The Plenary of the STF followed the vote of Justice Rosa Weber and unanimously made the preliminary injunction permanent in part, partially granting the request made in ADI No. 861/2020 to declare the unconstitutionality of only Article 1, III, and the expression “prioritize companies established in the State and,” contained in Article 3, caput, of Law No. 64/1993 of the state of Amapá (Brasil, 2020).

According to Coutinho (2013), regarding the functions of law in public policy, in this case, it is possible to analyze the link between Law and Public Policy by identifying at least three roles it assumes in the relationship, as shown in the table below:

Table 1:
Examples of the roles assumed by the Law in relation to the public environmental policy of the State of Amapá on trawling and accompanying fauna, formalized in Law No. 64/1993.

Law as an objective	Law as an institutional arrangement	Law as a tool
Amapá State Law No. 64/1993 established a public policy aimed at managing marine resources, formalizing the goals and objectives guiding government actions in relation to trawling. This law did not emerge from the mere liberality of public officials. It was the result of a decision-making process that was preceded by the identification of the socio-environmental problem (the degradation of the marine environment due to unsustainable trawling), setting an agenda, and formulating solutions.	The sphere of action of the Member state Legislature is linked to positive legal norms, to influence the structure of public policies. In regulating the issue of industrial shrimp trawling and the compulsory use of the accompanying fauna on the coast of the state of Amapá, the public entity had to observe the limits of its material and formal competence established by the Constitution, as well as the guidelines established in the relevant federal infra-constitutional legislation. Thus, the law became the institutional framework that guided the development of public marine environmental policy.	Law No. 64/1993 and the institutional framework (relevant legal rules) are characterized as tools for implementing public policy aimed at controlling industrial shrimp trawling and the compulsory use of the accompanying fauna of this fishery off the coast of the state of Amapá.

• Source: The authors, based on Coutinho, 2013.

Beyond this perspective, the divergence of interests and the lack of consensus between the executive branch and the state legislature culminated in the phenomenon of the judicialization of the state of Amapá’s environmental public policy on trawling and accompanying fauna, formalized in Law No. 64/1993. This judicialization was facilitated through an ADI, which is a mechanism that triggers concentrated control of constitutionality.

Thus, the STF’s decision in ADI No. 861 partly reinforced the implementation of the public policy on trawling and accompanying fauna in the state of Amapá, formalized in Law No. 64/1933. This is because, on the one hand, it declared the constitutionality of most of the provisions being challenged, and on the other, by declaring the unconstitutionality of Article 1, III, and the expression “prioritize companies established in the state and”, contained in Article 3, caput it prevented these provisions from taking effect.

Final Considerations

Based on previous discussions and analysis, we can argue that the final and unappealable decision in ADI No. 861/AP can be indeed understood as an instrument for controlling public policy that is consistent with the promotion of fundamental constitutional environmental rights, as well as with SDG 14 and the objectives of the UN Ocean Decade.

First, this is a result of the coherence that exists between public policy, international environmental agreements to which Brazil is a signatory, environmental constitutional norms, and the understanding of the Judiciary; secondly, it arises from the effects constitutionally conferred on the decisions of the Judiciary in the context of constitutionality control. However, the Supreme Court’s decision in ADI 861/2020 is primarily concerned with analyzing the material and formal competence of the state of Amapá to issue Law No. 64/1993, and its provisions indirectly interfere with the execution of the federal entity’s environmental public policy on trawling and accompanying fauna.

The background to the discussion is precisely the possibility of implementing an environmental public policy, and indeed, a dialog between Law and Public Policy theory would be welcome, enriching the debate and increasing the likelihood of addressing the socio-economic and environmental issues. However, we have not gone into the merits of SDG 14 but have restricted our focus to discussing jurisdiction. In this context, it should be ponderated the protection of both the biome affected by trawling and the riverside population that uses artisanal fishing and has its livelihood negatively impacted by this industrial activity, which were not directly addressed by this ADI.

Faced with the complex issue of trawling in Brazil, any action or omission by the Judiciary to influence the validity/application of legislation on this matter has the potential to interfere with socio-economic and environmental public policies and the management of fishing resources. For this reason, when exercising its constitutional function, the Judiciary should be acknowledged for its responsibility in implementing public policies that are subject to judicial control.

References

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• BUCCI, M.P.D. O conceito de políticas públicas em Direito. In: BUCCI, M.P.D (org.). Políticas Públicas: Reflexões sobre o Conceito Jurídico. São Paulo: Saraiva, 2006.
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• 1
  - Regarding this matter, also shall be considered that according to the Federal Constitution of 1988 the federal entities have the competence to legislate on environmental matters, highlighting the status of the fundamental right to a healthy and balanced environment.
• 2
  - ADI No. 861/AP deals with industrial shrimp trawling and the compulsory use of accompanying fauna.
• 3
  - Therefore, not all public policies are government policies (established by the Executive, Legislative and Judicial branches), but all government policies are public policies (Secchi, 2017).
• 4
  - According to the Governor of the state of Amapá, it was unconstitutional in compliance with Article 2, Article 5, items I, II, and XIII, Article 22, item I, article 34, item IV, Article 145, item I and Article 178, item IV of the 1988 Brazilian Constitution.
• 5
  - The effects of Article 1, III and § 2; Article 2, § 1 and § 2; Article 3, and §§ 1 to 4, and Article 4 of Law No. 64/1993 were suspended until the final judgment of the ADI (Brasil, 2020).
• 6
  - According to article 24, item VI, and item VIII of the 1988 Brazilian Constitution. In addition, due to the stipulations of §1 and §2 of this same article, it is underscored that the Union has the duty to establish general rules on these matters, while the states and the Federal District have the duty to establish specific rules (this is the so-called formula of limited or non-cumulative concurrent competence).
• 7
  - According to the article 24, item VI of the1988 Brazilian Constitution.
• 8
  - According to the article 225, §1 of the1988 Brazilian Constitution.
• 9
  - According to the article 24, item VI of the1988 Brazilian Constitution.
• 10
  - According to the article 22, items I and XI, of the1988 Brazilian Constitution.
• 11
  - That is established in Article 5, caput, and item I, and article 19, item III, both of the1988 Brazilian Constitution.
• 12
  - According to Article 1, paragraph 2, of Law 64/1993.
• 13
  - As stipulated in Article 24, item VI, of the 1988 Brazilian Constitution.

Publication Dates

• Publication in this collection
  07 July 2025
• Date of issue
  2025

History

• Received
  28 Oct 2023
• Accepted
  13 Oct 2024