One of the greatest virtues of the Judiciary is to pacify social relations through the jurisprudence it creates on the various themes that are submitted to it. It happens that, in Brazil, even today, attempts to resurrect issues already faced by the courts are recurrent.
As an example, we can mention Law 4.117/03 of the state of Rio de Janeiro, which aimed to create the ICMS on oil extraction, a theme addressed in the Direct Action of Unconstitutionality (ADI) 3,019/RJ in 2005.
Years later, another law in Rio de Janeiro, Law 7.183/15, intended to reestablish the collection of ICMS on oil extraction, which was rejected by the Supreme Court (STF) in 2021 in ADI 5.481/RJ.
The same happened with the so-called Environmental and Regulatory Surveillance Fee of Oil and Gas Exploration and Production Activities (TFPG). Created by State Law 7.182/15 - RJ, the fee should be paid by taxpayers who exploited the extraction and production of oil. By law, its value would have to be fixed according to the amount extracted from barrels of oil.
Faced with widespread protests against the requirement of the fee, which followed a pattern quite similar to that of other police power charges, it was up to the Supreme Court to examine the subject, as it had done in relation to the Control Fee, Monitoring and Supervision of Activities of Exploitation and Use of Water Resources (TFRH).
In one of the pioneering cases about the unconstitutionality of police power charges that do not observe the equivalence between what is collected and the cost of state service to be remunerated, we advocate from the court of the plenary of the Supreme Court.
In the trial of ADI 6.211/AP, which specifically involved the collection of TFRH created by the state of Amapá, the minister rapporteur Marco Aurélio Mello voted for the unconstitutionality of the collection, because there is no obligation / referable character, and its collection is confiscatory. In his vote, the minister rapporteur stressed that "the rate always presupposes a cost to be satisfied, and must have an intimate relationship with the activity performed by the State".
Based on this understanding, soon after, Law 7.182/15 was deemed unconstitutional by the Supreme Court in ADI 5.480 / RJ, putting an end to TFPG.
The state of Rio de Janeiro, however, again intends to reinstitute the very same TFPG, through Bill 5.190/21, which was pending only the government sanction. The curious thing is that the new TFPG basically repeats the old TFPG. The only differences between the two refer to the following points:
- the calculation basis of the new TFPG is a fixed value per month, while in the old TFPG the value fluctuated according to the amount of barrels produced; and
- the new TFPG provides for the allocation of part of its collection to the state environmental agency, in addition to the State Attorney General's Office and the State Treasury Department.
We understand that the new rate, in the same way as the old one, incurs in unconstitutionality, because its collection needs to be compatible with the cost of state activity to be remunerated, an indispensable requirement of validity and adaptation to the constitutional precepts of any rate of police power.
Unlike taxes (“impostos”), charges are taxes linked and referable precisely because they aim to remunerate a certain state activity.
By being calculated in very high monthly fixed value (about R$ 5 million per month, per concessionaire), the new TFPG is far from the cost of state activity to be developed with the resources from its collection. Proof of this is that the supervision of oil exploration and production activities are already developed at the state level by the State Institute of the Environment (Inea), whose collection obtained with all fees for the exercise of police power in the years 2017, 2018 and 2019 totaled, respectively, R$ 11,462,499.23, R$ 15,855,731.62 and R$ 11,310,219.51, as disclosed in the last Inea/2019 Activity Report.
If we consider the number of concessionaires authorized to carry out research, mining, exploration and production of oil and gas existing in Rio de Janeiro, we will have a collection of R$ 150 million only by concessionaires in the Campos Basin – according to the National Petroleum Agency (ANP), only in this basin there are 30 authorized concessionaires in the state. This amount represents about 388% of the revenue obtained by Inea with all police power fees in the years 2017, 2018 and 2019.
The constitutional principles of transparency, good faith and morality require public managers to decline and share with society and parliament itself all empirical data examined and weighted for the creation of new taxes. It would therefore be commendable if the legal justification of the new TFPG was accompanied by this information, in particular, the estimated cost of state activity to be remunerated.
In addition, by establishing as a taxable person of the rate any and all "legal entity that is, in any capacity, authorized to carry out research, mining, exploration, and production of oil and gas resources", the new TFPG ceases to observe and considers that several concessionaires, although authorized by the ANP to explore and produce oil and gas, are not carrying out these activities at the moment.
It makes no sense to establish the collection of a fee for the exercise of police power over taxable persons who are not even in the full exercise of the activity to be supervised. In this case, there is no necessary accountability/referable nature of the fee.
Another issue that draws a lot of attention in the new TFPG is the fact that part of its collection is destined to the State Attorney General's Office and the State Department of Finance.
These bodies have unique relevance in the collection and judicial representation of state agencies. However, both have no direct and reference relationship with the police power to be remunerated with the new TFPG.
Initiatives like these scare away new investors and shake the confidence of those who already make their investments in Rio de Janeiro, as well as go against the desired economic recovery of the state's troubled public accounts.
It is an anima to know that, apparently, the governor of Rio de Janeiro did not sanction the bill, a measure agreed to retain the investments already made by oil and gas concessionaires in the state and avoid the unwanted flood of litigation that will come, if the Rio de Janeiro State parliament keep the governor´s rejection.