Decree brings news in the environmental area

This study concerns Decree No. 11,080, of 5/24/2022, which amends Decree No. 6,514, of 7/22/2008, known to all who work in the area of ​​Environmental Law, for having regulated Law nº 9.605, of 2/12/1998. In 2019, there were already changes in this infralegal norm by Decree No. which will be discussed later.

Let us now look at the changes brought by Decree No. 11,080, of 2022, which can be classified as procedural changes, content changes and additions to the rules governing administrative environmental infractions.

  • Article 5. The amendment of § 1 of article 5 starts to consider as an infraction of less harmfulness the consolidated fine that does not exceed the amount of R$ 1,000.00, and not the maximum fine imposed or applicable, in the case of a fine per unit of measure. Thus, the rule is changed, which applied the warning only to infractions in which the maximum fine applicable due to the practice or imposed by unit of measure does not exceed the value set by the rule. This makes it possible for the warning to be applied to a larger list of administrative infractions, changing an objective criterion — the applicable fine, to a criterion that will depend on the application of the administrative sanction on a case-by-case basis. It should be noted that the application of the warning does not exclude the possibility of applying other sanctions (cf. article 6 of Decree No. 6,514, of 2008).
  • Article 9. New §§ 1 and 2 are added to article 9, which provides for the amount of the administrative fine. The new paragraphs allow for monetary restatement, application of late payment interest and other charges after the defense submission deadline (twenty days after the date of notification of the notification), but the amount of the consolidated environmental fine is limited, which is not may exceed the amount of R$ 50 million. There is an understanding today that the fine can be applied in aggravating circumstances and recidivism, and that it exceeds, in these cases, 50 million, as it can be applied in double and triple. With the new wording, a limit for the application of the final fine is established, which did not occur with the previous wording.
  • Article 10. There were only changes in the wording of § 6, with no change in content. Environmental authority changed to “competent authority” and inclusion of a comma between “taxed” and “later execution”.
  • Article 11. Provides for recidivism and aggravation of sanctions. Changes the initial time of counting the deadline for the determination of recidivism. It becomes the final judgment of the infraction notice, and not the drawing up of the infraction notice confirmed in trial, which is in line with the existing provision in the Penal Code. The new wording of § 1 requires a certificate with information on the previous AIA and no more copies, updating the procedure to ensure greater efficiency in the administrative process. The new § 2 brings the same rule already provided for in the previous item II of § 4 of article 11 — opportunity for the contradictory to the assessed person who may express an opinion on the possibility of aggravation of the penalty. The current § 2, which provides for a specific obligation to the environmental authority, that is, to verify the existence of a previous infraction notice confirmed in judgment, was excluded. The verification will be made with the certificate. In addition, adherence to one of the solutions provided for in article 98-A — legal solutions to terminate the process — does not exempt the account of the offense committed for the purposes of applying the recidivism and aggravation. The provisions of article 11 apply to infraction notices drawn up after the new decree comes into force.
  • Article 13. A new single paragraph is created in article 13, which provides for the allocation of 20% of the amounts collected to the National Environment Fund (FNMA), in order to provide that amounts in excess of the percentage set in the caput to other funds managed by other federative entities will depend on the execution of a specific instrument.
  • Article 20. It deals with restrictive sanctions of law. There was only a change in the expression “environmental authority” for “judgmental authority”.
  • Article 54-A. Creation of a new administrative infraction type. It is about acquiring, intermediating, transporting or marketing products (of animal or vegetable origin) produced in an area subject to irregular deforestation, with a fine of R$ 500.00 per kilogram or unit. This is an important innovation that aims to bring greater effectiveness to the legislation that controls illegal deforestation. Article 54 of Decree No. 6,514, of 2008, provided for the infraction type only for embargoed areas.
  • Article 82. Infringement of omission or falsity of information. An important innovation is created with the new single paragraph, by providing for an aggravating penalty when the infraction involves movement or generation of credit in the official system of control of the origin of forest products.
  • Article 93. Aggravation of sanctions in the case of UC. The wording is amended to provide that in cases where the conservation unit constitutes an essential element of the type, the fine will not be increased. In the original wording, the concept is the same, but mention was made of the non-occurrence of the increase of the fine in the infractions provided for in the Subsection.
  • Articles 95-A to 102. Articles 95-A, 95-B, 96, 97-B, 98, 98-A, 98-B, 99, 100 and 102 were amended with regard to the environmental administrative process.

The conciliation and one of the possible legal solutions to end the process, which were exemplified in article 98-A, § 1, II, “b”, are now encouraged by the public administration. In the wording given by the new decree, this article is amended, expressly providing for the solutions: discount for payment of the fine, installment and conversion of the fine into services for the preservation, improvement and recovery of the quality of the environment. There is a regulation to regulate the procedure for adhering to one of these legal solutions (95-B) and that the payment of the consolidated environmental fine will be interpreted as adherence to the legal solution and will imply in the closure of the administrative process. However, it is unclear in cases where payment for closure is contingent on repairing the environmental damage.

A new constitution of the NCA is foreseen, which will have at least two servants of the agency or entity of the federal public administration responsible for drawing up the AIA. The previous wording was “at least one of them”. As for the competences of the NCA, the preliminary analysis of the assessment is maintained to validate ex officio the AIA that presents a curable defect and declare the AIA that presents an incurable defect null, but the duty of pronouncement of the Federal Attorney General’s Office that act before the administrative unit responsible for the assessment. This fact can generate conflicts with the body responsible for the legal analysis of the processes.

In addition, the NCA starts to decide on the consolidation of the amount of the environmental fine. Previously, the members of the NCA were designated by ordinance whose decision was jointly made by the minister of the MMA and the top manager of the environmental agency or entity of the federal public administration. Now, the decision is only made by the top manager of the environmental agency or entity of the federal public administration, in this case, Ibama. The participation of the MMA in the signing of the act and in the definition of the conditions for the exemption from holding a conciliation hearing or supplementary hearing is excluded (§ 6 of article 98-B).

The personal subpoena of the assessed person or by post may be replaced by an electronic subpoena, in full step with the civil process. Provides for a new § 5 to article 96 so that the options for the assessed person are included in the notice of drafting of the AIA: present a defense, request the holding of a conciliation hearing or adhere to one of the solutions for closing the process. In the same sense, § 5 of article 98-B determines that the conciliation hearing be held, preferably, by videoconference.

The procedure is then changed so that the assessed party has 20 days from the date of the AIA issuance to opt for one of the modalities described above. In the original wording, the assessed person was notified to attend the conciliation hearing if he wanted to. The procedure, a priori, seems to have become more efficient and reasonable for the public administration. Now, the assessed party manifests itself from the beginning of the process, and the request to participate in an environmental conciliation hearing interrupts the deadline for offering a defense.

The new article 97-B sets out rules regarding the content of the request for immediate adhesion to one of the legal solutions for closing the process. The irrevocable and irreversible confession of the debt, the abandonment of judicially challenging the environmental assessment and the waiver of any legal claims can generate the debate that the right of the administered to judicially challenge the administrative acts is being violated, that is, the right judicial control over the administration’s acts, invoked by the principle of inexorability of jurisdiction (item XXXV, article 5 of the Constitution). The content of the inspection report includes a justified indication of the incidence of aggravating or mitigating circumstances (98, sole paragraph, IV).

As for the rules on the impossibility of seizure, a new § 2nd is created to article 102 to determine that in the event that the person responsible for the infraction is undetermined or unknown, the drawing up of the seizure term will be carried out through the publication of its extract in the Gazette Union Official, ensuring due publicity and transparency.

  • Articles 113 and 116 (defense). The 30% discount when the fine is paid is only available in the case of cash payment, excluding this discount in the case of installments. As for the presentation of a power of attorney by the defense, it can be presented within 15 days after the presentation of the defence. Due to the right to ample defense, the assessed person could be notified to correct the irregularity, but article 116 provides that the failure to attach the instrument may result in the lack of knowledge of the defense presented.
  • Article 120. Included in the list of rejected evidence, illegal ones.
  • Article 127 and 127-A (feature). The nomenclature from hierarchical resource to volunteer is changed. The appeal will be forwarded to the competent authority for judgment in the second and final administrative instance. Previous wording provided for the referral of the resource to the “higher authority”. The judgment in the first instance will be subject to the necessary re-examination in the cases defined in the regulation.
  • Articles 139, 140, 142-A (conversion of fines). Other hypotheses are foreseen, to be defined in the regulation, that make it impossible for the competent authority to convert the simple fine into services for the preservation, improvement and recovery of the quality of the environment. In the decree in force until then, the hypothesis of impossibility of converting the fine was the occurrence of infractions that had caused human death. The possibility of restricting the measure is expanded, therefore, which will depend on regulation, which, although the innovation is worthy, seems inadequate, since it is a regulation of the law. In addition, the objectives of environmental recovery and preservation are expanded, which is positive.

The modalities for converting the fine were indicated by the environmental public administration and this requirement is withdrawn. The rules regarding the modalities of converting fines were improved, with the possibility of the environmental agency carrying out selection processes to choose projects, defining that the assessed person will bear the necessary costs for the effective implementation of the environmental service and provision of regulation for the adhesion to the project.

  • Article 146 (term of commitment). Environmental regularization is included as a mandatory clause in the term of commitment, in addition to the repair of damages resulting from the infraction, according to the regulation to be prepared.

There are the innovations made. It is hoped that they will be useful for the protection of the environment.

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