Joint and Several Liability with Subsidiary Enforcement: Autonomous Modality of Obligation or Mere Subsidiary Obligation?

Abstract

This article presents a critical analysis of the State's liability for environmental damage resulting from its omission, in order to investigate the (im)possibility and (in)coherence of joint and several liability with subsidiary execution, as established by Brazilian Superior Court of Justice (STJ). Therefore, an interpretation of the institutes of solidarity and subsidiarity is proposed from the perspective of the German theory of the duality, trying to verify the compatibility of the summary statement from the STJ with the internal legal system and, consequently, with the mentioned theory. Some decisions and judicial issues of the STJ on this matter are highlighted, in order to demonstrate the need to reformulate the precedent examined, with a view to solidifying jurisprudential understandings and mitigating possible doctrinal and legal gaps. In conclusion, an internal legislative change is proposed, in order to guarantee greater protection to the treasury and solve the high burden borne by society in terms of environmental damage.