The Brazilian Institute for the Environment and Renewable Natural Resources (Ibama) has published a normative instruction to regulate the procedures necessary for converting fines into services of preservation, improvement, and recovery of the quality of the environment.
Despite the innovations brought by Normative Instruction (IN) No. 06/2018, published in the Official Press on February 16, it is important to remember that conversion of fines was already provided for in various passages of environmental legislation, such as in Federal Law No. 9,605/1998 (article 72, paragraph 4), in Federal Decree No. 6,514/2008 (articles 139 to 148), as amended by Federal Decree No. 9,179/2017, and in IN Ibama’s No. 10/2012 (article 75, revoked by IN No. 06/2018).
The new IN considers services for the preservation, improvement, and recovery of the quality of the environment to be the actions, activities, and works already provided for in article 140 of Federal Decree No. 6,514/2008.
In practical terms, as an innovation, the IN determines that, for the purpose of converting fines, only finalistic projects will be considered, i.e. projects guided towards concrete and measurable results, taking into account the capacity to respond to public demands based on socio-environmental policies at the national, state, or municipal level.
In addition, the IN innovates by providing two ways to carry out the conversion of environmental fines: (i) the direct way, in which the interested party will assume the implementation, through its own means, of the services of preservation, improvement, and recovery of the quality of the environment, in accordance with the guidelines, parameters, and priorities established in the Ibama National Fines Conversion Program (PNCMI) and the Ibama State Fines Conversion Program (PECMI); and (ii) the indirect way, which will occur by joining in a project previously selected by Ibama through a public call, under the terms of the IN.
Still according to the new IN, the conversion of a fine is a discretionary measure of the environmental agency and will be carried out according to the criteria of convenience and opportunity of the public administration, that is, it does not constitute a subjective right of the offender. Once a request for conversion has been made, according to the applicable legal criteria, the competent authority will evaluate and consider the offender's background, the peculiarities of the specific case, and the deterrent effect of the environmental fine (a kind of dissuasive measure to avoid new infractions), in order to decide, by means of a reasoned decision, whether or not to allow the conversion of the fine.
Despite the above criteria, the IN determines that the conversion of the fine will be rejected if (article 10, sole paragraph): (i) the violation resulted in human death; (ii) the offender has been recorded in the official register of employers who have subjected workers to conditions analogous to slavery; (iii) evidence of exploitation of child labor is found; (iv) the offense is committed through the use of cruel methods for the slaughter or capture of animals; (v) the infraction has been committed by a public agent in the exercise of the position/function; (vi) the measure is unable to fulfill its function as a disincentive from committing environmental infractions; (vii) the service proposed by the offender in the indirect modality is incompatible with the IN’s requirements; and (viii) the offender fails to comply with orders by the competent authority to make adjustments to the project.
The conversion of fines may be requested by the interested party up to the moment of final arguments. In addition, the measure is only applicable for simple fines, i.e. it does not apply to daily fines and other administrative penalties that may be imposed on the offender.
In general terms, although it deals with an instrument already provided for in legislation, IN No. 06/2018 brings in more clarity about its appropriateness and use. Despite its limited scope and the vast subjectivity that still surrounds the matter in specific cases, little by little rules like the new IN mitigate the legal uncertainty that permeates the Environmental Law in Brazil.