Joint Normative Instruction (IN) No. 2/20, published on January 29 by the Ministry of the Environment (MMA), the Brazilian Institute of Environment and Natural Resources (Ibama), and the Chico Mendes Institute for Biodiversity Conservation (ICMBio), brought in new regulations on the federal administrative procedure for investigating administrative environmental violations. The standard seeks to consolidate administrative procedures at Ibama and ICMBio, repealing prior instruments.
Following the trend of judicial proceedings, the IN established an electronic administrative proceeding, i.e., all the process will be done via the online system of federal agencies as of the drafting of the infraction notice. Access to the electronic process will be ensured to the defendants and their attorneys upon written request, regardless of power of attorney. This access will be considered a valid way to acknowledge the infraction notice or any decision within the administrative proceeding.
An important aspect of the new regulations is the inclusion of a conciliation hearing as an initial step in the administrative proceeding. The conciliation hearing had been introduced as a dispute resolution method within the Federal Environmental Public Administration by Federal Decree No. 9,760/19.
Even this hearing may be conducted electronically, provided that there is agreement by the defendant and adequate infrastructure and technology at the environmental administrative unit in question. Equal procedures and guarantees given to respondents in relation to hearings in person should be guaranteed. Hearings of an electronic type should preferably be used, at the discretion of the Environmental Conciliation Nucleus (Nucam), to enable the presence of respondents who face difficulty in appearing or when a complementary hearing is held, in order to expedite the procedure.
Once the agreement by the respondent has been expressed, the hearing will be automatically scheduled for at least 30 days after the infraction notice is drawn up. The time limit for submitting a defense shall be suspended until the date of the hearing.
The respondent may also waive the right to participate in the environmental conciliation hearing by means of a written declaration filed by the scheduled date of the session. In that case, the time limit for presentation of the defense shall start to run as of the filing of that brief.
The submission of a partial defense is allowed if, in the environmental conciliation, the defendant disagrees with one or more precautionary administrative measures and penalties which have been applied.
When regulating Nucam's operation, the IN divided it into two distinct teams: the Preliminary Analysis Team (PEA) and the Conciliation Hearing Conduct Team (ECAC).
It is incumbent on the EAP to validate infraction notices presenting a curable error, to declare null and void infraction notices that present an incurable flaw, in order to analyze the appropriateness of converting the fine into services of preservation, improvement, and recovery of the quality of the environment, as well as to decide on whether to maintain the application of the precautionary administrative measures and the application of the other sanctions.
The preliminary review of the assessment shall be formalized by the EAP in a reasoned opinion and sent to the relevant ECAC at least seven days in advance. The opinion of the EAP, however, is not binding.
The ECAC will be responsible for conducting the conciliation hearing, presided over by a full-time public servant who does not belong to the staff of the federal environmental agency responsible for the assessment. The ECAC will also take the measures necessary after the hearing has taken place, both in cases of successful conciliation and in cases where the environmental inspection continues.
In the event that the proceeding continues due to lack of conciliation or environmental conciliation with disagreement by the respondent regarding one or more injunctive administrative measures and sanctions applied, the Investigation Team (EI) will continue the process.
Another highlight of IN is the express provision that the inspection report must demonstrate the subjective element of the environmental infraction, that is, it is required that the conduct have been committed by the offender with intent or willful misconduct. This inclusion changes the practice of environmental agencies in the administrative environmental liability sphere and is in line with the understanding of the Superior Court of Appeals (STJ) that administrative environmental liability is subjective, i.e., it requires on proof of intent or willful misconduct (STJ). (Motion to Resolve Divergence in Special Appeal: EREsp 1.318.051-RJ, Reporting Opinion drafted by Justice Mauro Campbell Marques, First Section, unanimously, decided on May 8, 2019, published in the Electronic Gazette of the Judiciary on June 12, 2019).
Seeking to modernize inspection at the federal level, the IN innovated by allowing an environmental agency that has seized assets in inspection actions to install tracking equipment on the items seized with the purpose of monitoring their location and use during the time the seizure measure is in effect. In addition, the inspection agent may request the installation of trackers as a condition for the deposit or use of the asset by the offender after the seizure. These measures are unprecedented in federal administrative sanctions procedure.
The rule also allows the respondent to request revision of the infraction notice after the infraction notice has been definitively issued. This request for revision is intended to undo or modify the judgment, which will only be admitted when the respondent alleges new facts or relevant circumstances that justify the inadequacy of the sanctions applied. In this case, it will be incumbent on the authority that delivered the final judgment to examine the request for revision. It will not be possible to harshen the penalty or restrictive legal sanction already imposed. Therefore, a request for revision gives the respondent one more chance to fight the case still in the administrative sphere, which may avoid prolonging the litigation in the judicial sphere.