New regulations on environmental infractions and reparation for environmental damage in administrative proceedings

01/10/2024

In summary

Federal Decree No. 12,189/2024 was published on September 20, bringing changes to environmental infractions and administrative sanctions. Stricter penalties are provided, especially in relation to deforestation and forest fires, especially in preservation areas and indigenous lands.

Also, a new administrative infraction was included by the Decree in which it is stipulated that failure to repair, compensate or indemnify for environmental damage becomes an administrative infraction. In this context, today (October 1, 2024), IBAMA Normative Instruction No. 20/2024 was published which establishes the procedures for collecting compensation for environmental damage through administrative sphere.

More details

Federal Decree No. 12,189/2024 updated Decree No. 6,514/2008, which deals with environmental infractions and administrative sanctions. The main changes includes:

i.Increased fines for infractions relating to: (a) non-compliance with embargoes on works or activities; and (b) the use of fire in agricultural and pastoral areas, without authorization from the competent body, or in disagreement with that obtained;

ii.The possibility of imposing sanctions (warning, fine, seizure, embargo, etc.) as precautionary administrative measures;

iii.The penalty is doubled when the infraction (a) is committed through the use of fire or causing a fire; or (b) affects indigenous land;

iv.Provision for the application of sanctions restricting the rights of individuals or legal entities, with set periods: (a) up to 5 years for prohibition of contracting with the public administration; and (b) up to 10 years for suspension or cancellation of registration, license or authorization, loss or restriction of tax incentives and benefits, and loss or restriction of tax incentives and benefits.

v.Provision for new types of administrative infractions:

v.a)Failing to repair, compensate or indemnify environmental damage, in the manner and within the timeframe required by the competent authority, or implementing a service in disagreement with that defined, subject to the imposition of a fine of up to BRL 50,000,000.00 (fifty million reais);

v.b)Buying, selling, brokering, using, producing, storing, transporting, importing, exporting, financing and fostering animal or plant products, substances or species without a valid environmental authorization, license or permit or in disagreement with the one granted, subject to the imposition of a fine of up to BRL 1,000.00 (one thousand reais) per kilogram, hectare or unit of measurement compatible with the measurement of the object of the infraction;

v.c)The person responsible for the rural property fails to implement actions to prevent and combat forest fires on their property in accordance with the rules established by the National Committee for Integrated Fire Management and by the competent bodies of the National Environment System (Sisnama), subject to the imposition of a fine of up to BRL 10,000,000.00 (ten million reais); and

v.d)Causing a fire in a forest or any form of native vegetation, subject to the imposition of a fine of up to BRL 10,000.00 (ten thousand reais) per hectare or fraction thereof.

vi. Possibility of embargoes on areas that correspond to a set of polygons related to the same type of environmental infraction, with the aim of: (a) stopping the infraction and environmental degradation; (b) preventing profit or economic advantage from being gained from committing an environmental infraction; (c) preventing new infractions from occurring; (d) safeguarding environmental recovery; (e) promoting the reparation of environmental damage; and (f) guaranteeing the practical outcome of administrative accountability processes. At the discretion of the competent body, polygons relating to the same type of environmental infraction may be grouped by biome, federal unit, gleba, conservation unit, indigenous land, property, region or geographical delimitation under inspection; The new provisions of the Decree came into force on the date of its publication.

In addition, the Normative Instruction (IN) of the Brazilian Institute of Environment and Renewable Natural Resources – IBAMA (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis – IBAMA) No. 20/2024 established procedures for the collection of compensation for environmental damage through administrative sphere as a result of facts established in the application of administrative sanctions by IBAMA. Below, we highlight the main aspects of the new IN:

a.The characterization of environmental damage must be carried out when the environmental infraction is detected;

b.The administrative process for repairing environmental damage at IBAMA will be initiated in a specific process;

c.Once authorship and materiality have been proven in the environmental sanctioning process, through adherence to the legal solution or a first instance administrative decision, liability for the environmental damage associated with the infraction committed will be established;

d.Direct remediation of environmental damage should be the priority option and, when this is impossible and technically justified, indirect remediation measures should be carried out;

e.For infraction notices drawn up by IBAMA prior to the publication of the IN, there will be a notification to the administered party to submit updated information on the state of the area or activity, as well as documents proving environmental regularization in accordance with current legislation, when applicable;

f.At any time, with justification, the remedy for environmental damage can be redefined, depending on new information or supervening facts verified within the scope of the administrative sanctioning or damage remediation processes;

g.Failure to comply with the obligation to repair environmental damage may result, cumulatively or separately, in the administrative sphere:

g.1.) The inclusion of the defendant on a public list of those liable to pay compensation for environmental damage to IBAMA;

g.2.) The entry of information regarding pending reparations for environmental damage with IBAMA in the land registry or equivalent registry; and

g.3.) In the investigation of administrative liability for autonomous infractions with the application of new sanctions and precautionary measures.

h.The Specialized Federal Prosecutor’s Office (PFE) of IBAMA will be responsible for jointly evaluating with IBAMA whether to file a public civil action (ACP) for compensation for environmental damage in the event of frustration of the administrative action or other situations in which the administrative collection of compensation for environmental damage proves to be insufficient or inadequate, in accordance with current regulations;

i.IBAMA and PFE will seek to establish protocols for action and integration with the Federal Public Prosecutor’s Office and the State Public Prosecutor’s Offices aimed at reciprocal optimization of activities in judicial and extrajudicial actions to repair environmental damage; and

j.When IBAMA becomes aware of an ACP related to the object of the administrative collection of compensation for environmental damage, it may subsidize the existing ACP, in which case the compensation in the civil and criminal spheres takes precedence over the administrative one.

The IN will come into force on October 8, 2024.

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