By Leonardo Neri

In April 2021, Joint Normative Instruction number 01 of 2021 (INC 01/2021) was published in the Federal Official Gazette, prepared by the Ministry of the Environment, IBAMA and the Chico Mendes Institute, in order to amend Joint Normative Instruction number 02 of 2020 (INC 02/2020), which regulates the federal administrative process for investigating administrative infractions due to conduct and activities that are harmful to the environment, as provided for in Decree 6,514 of 2008.

INC 01/2021 – an administrative act that regulates the process for investigating infractions that are harmful to the environment – is guided by the principles that govern Public Administration and administrative sanctioning law and aims to guarantee the fundamental right to an ecologically balanced environment, as provided for in article 225 of the Federal Constitution, that is, the environment as a human right.

Édis Milaré teaches that economic growth must be done in a planned and sustainable manner, ensuring economic and social development while protecting environmental quality and cannot be done at any price, since the environment needs to be considered.

Thus, the environment, which is for public use, when used inappropriately, entails liability for everyone, whether they are citizens, legal entities under public law, or even private law. And it is in this context and based on the polluter pays principle that anyone who damages the environment must repair or compensate the environment and third parties affected by their activity, regardless of whether they are at fault.

Therefore, the Decree that provides for administrative infractions and sanctions to the environment, and establishes the federal administrative process for investigating these infractions, was regulated to specify the administrative procedure at Ibama and the Chico Mendes Institute and, now, the new changes brought by the INC aim to bring greater understanding and detail to the procedure, highlighting the activities that must be carried out by the authorities.

The preliminary analysis of the infraction reports, previously conducted by the EAP before the conciliation hearings, will be carried out by NUCAM itself, orally, at the beginning of the hearing and reduced to terms in the hearing minutes, since the new rule extinguished the Preliminary Analysis Team (EAP) and the Conciliation Hearing Conduct Team (ECAC), which were part of the Environmental Conciliation Center (NUCAM).

It changed the jurisdiction for holding conciliation hearings, as previously, the jurisdiction rule was related based on the value of the fines – fines equal to or greater than R$1,500,000 should have conciliation hearings held by the NUCAM of the Federal District and, below this value, the hearing would be the responsibility of the NUCAM of the State Superintendence where the infraction notice was issued – and, now, they will always be the jurisdiction of the NUCAM of the administrative unit where the infraction notice originated.

In this sense, the person charged must express interest and express agreement to the hearing, which will preferably be carried out electronically. If the deadline has elapsed without any response, the hearing will be waived, and the deadline for presenting the administrative defense will begin to run.

Yet another new feature introduced by the INC is the competence of the hierarchically superior authority to assess the regularity of precautionary measures eventually imposed by the issuing agent, after the preparation of the infraction report and the forwarding of the report to the authority, which will be responsible for the correction and opening of the process, and may also determine the supplementation of information to the inspecting agent and may adopt measures to continue or not the administrative process.

Another point is the provision that the head of the federal environmental administrative unit at the location of the violation must report the violation found to the Public Prosecutor's Office and other relevant bodies.

In the inspection report – an administrative document that forms part of or precedes the opening of the administrative environmental sanctioning process – the federal environmental agent must report evidence of authorship, materiality and causal link between the conduct and the typical administrative fact attributed to the offender who violated environmental legislation. The agent issuing the citation must also justify the imposition of legal sanctions, indicating any circumstances, the subjective element found in the conduct, mitigating or aggravating factors, and also include all evidence collected and the individualization of objects, instruments and equipment related to the verified practice of the environmental infraction.

Clarifies that the values of discounts attributed to mitigating circumstances will not be cumulative with the discounts granted to possible legal solutions that can be adopted to conclude the process. Regarding recidivism, it changes the term “against the same legal asset” to “capitulated under a different type of offense”.

Finally, it changes and includes the deadlines for the Public Administration and for the administered, explaining that, if there is no specific deadline in the device, the general deadline of 5 days must be adopted in accordance with the rule established in article 24 of Federal Law No. 9,784/1999.

Despite the purpose of detailing and simplifying the procedure for environmental agents, the new normative instruction raises questions about the bureaucracy that these agents will have to face, given that the new rules centralize decisions in higher authorities and greatly shorten the deadlines for compliance with determinations. Furthermore, the change foresees expenses for adjustments, in an increasingly smaller budget.

In addition to this, there is the wait for approval of the bill that has been in the Federal Chamber for 16 years and is being discussed among environmentalists who believe that, even with a new version, the risks of regression in environmental production are great, as well as the Provisional Measure issued by the President of the Republic, which allows the issuance of environmental licenses automatically, based on the request of the interested party, demonstrating the clash between the federal government and the standards that guarantee a safe and balanced environment for the development of economic activities.