Read Minister Dias Toffoli's vote to ban the use of asbestos

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The Federal Supreme Court allowed  states to adopt laws that prohibit asbestos. With this, the STF created a new form of controlling the constitutionality of laws: the incidental declaration with binding effect. In ruling constitutional the state laws that prohibit ore in all its forms, the court declared unconstitutional the federal law that allows a type of asbestos.

To reach this conclusion, the Plenary followed the understanding of Minister Dias Toffoli. He presented the thesis during the first part of the ADI trial filed against the São Paulo municipal law that prohibited asbestos.

The minister did not participate in the ADI trial B2B Lead on the federal law because he had already presented an opinion in favor of it when he was the Union's attorney general. But today, almost ten years later, Toffoli claims that the law has become unconstitutional. At the time of his opinion, he stated, there was no consensus on the harm of asbestos or any other material that could replace it.

Today, added the vice-president of the STF, there are already more in-depth studies and substitutes for the mineral. Therefore, he said, asbestos, even the chrysotile type, went through a “process of unconstitutionalization” by “scientific consensus”.

That is why he supported part of the argument put forward by the authors of the unconstitutionality actions against state laws: in terms of concurrent jurisdiction, state law cannot be more restricted than federal law, since the Union is the one who must take care of the environment. It was the minister's interpretation of article 24 of the Federal Constitution.



But the declaration of unconstitutionality of the federal law, of a general nature, created a legislative vacuum. Therefore, it would be up to the states to deal with the matter. In other words: without federal law on an environmental issue, state law assumes the regulatory role of the Union. States are free to ban al