On September 13 of this year, the Brazilian Institute of The Environment and Renewable Natural Resources (Ibama) issued the Ibama Ordinance 83/22, which established the "Standard Operating Procedure (Procedimento Operacional Padrão - POP) for information gathering and conduction of inspections aimed at confirming the occurrence of environmental damage in areas altered or degraded by suppression of native vegetation without prior attainment of license / authorization or violating the conditions set forth in the valid license / authorization".
The ordinance defines environmental damage as "any harm caused to the ecologically balanced environment resulting from the degradation of environmental attributes through anthropic activities, actions and omissions which are unauthorized or in violation of applicable authorizations".
It also establishes that the evidence that the involved party has committed an infraction, of the materiality and of the existence causal nexus between the conduct described by the Ibama agent and the alleged harmful event must be indicated in the inspection report – a document that is either incorporated in the proceeding or precedes it.
These provisions demonstrate the environmental authority’s clear concern in conditioning the enforcement of potential sanctions to the confirmation of essential elements to adequate assessment of environmental administrative responsibility – which, according to the majority position of doctrine and jurisprudence, is subjective in nature – i.e. requires the existence of fault.
Therefore, the recognition of environmental administrative responsibility shall depend on the verification of the occurrence of an illegal conduct, along with the demonstration of the subjective element in said conduct, in addition to proving the existence of a causal nexus between the conduct and the damage ensued.
This has been the official position of the environmental institution, as perceived from the ratification of Opinion 04/2020/GABIN/PFE-IBAMA-SEDE/PGF/AGU, on July 14, 2022. The same understanding regarding environmental administrative responsibility has also been repeatedly reinforced by the Superior Court of Justice (Superior Tribunal de Justiça - STJ).
The existence of well-defined rules for the imputation of penalties in the administrative sphere can potentially reduce the number of penalties enforced by Ibama agents, for it prevents the sanctioning of conducts that lack such subjective element. This limitation may result in a cutback on significant resources by the entrepreneur relating to the elaboration of his administrative defense and even on the potential filing of judicial remedies aimed at the annulment of an unfair administrative penalty.
Ibama also benefits from the new rules, as clear definition of parameters for the characterization of environmental administrative responsibility may assist authorities in avoiding excessive discussions in the administrative sphere and unnecessary spending of public resources with future challenging of the penalties in the judicial sphere.
Even the judiciary may benefit from the new rules considering the proper application of the institute of environmental responsibility in the administrative sphere may lead to a decrease in lawsuits questioning the lawfulness of the issuance of infraction notices and, therefore, contribute, to a certain extent, to the mitigation of the judiciary’s work overload.
In addition to establishing rules for the imputation of environmental administrative responsibility, the main objective of the ordinance is to standardize the necessary information to be collected by Ibama's environmental inspection in order to characterize the environmental damage resulting from irregular suppression of vegetation.
The new standards establish the obligation to fill information relating to two additional forms (A and B), in addition to the requirements regarding the preparation of an inspection report, as previously required by Article 14 of the Federal Law 6,938/81 (National Environmental Policy Law – PNMA).
Information to be included in form A must be collected primarily in the field. Such information, for instance, relate to the biome, successional stage, and characterization of water bodies and humid areas, among others. This form is also intended to provide ample characterization of the damaged area’s surroundings, through the detailing of information about connectivity and landscape flows, as well as the indication of external threats.
Form B, in its turn, deals with information that should preferably be filled out "in office". Some examples provided by the ordinance are: the type of property where the area of interest is inserted, the domain of the degraded area, the enrollment before the rural environmental registry (Cadastro Ambiental Rural - CAR) and the occurrence of vegetation suppression in an area inhabited by endangered species.
Ibama expressed a clear intent of using the data collected in environmental inspections to subsidize the procedure for repairing environmental damage. Item 3 of the ordinance provides that "the collection of data on the environmental inspection at the time of the issuance of a penalty will improve the definition of administrative procedures necessary to the repair of environmental damage, with the purpose of making the inspections more effective in favor of environmental preservation and/or conservation".
The ordinance may, therefore, result in very beneficial results for the productive sectors, as it aims to consolidate robustly detailed concepts and recommendations to guide the proper drafting of the inspection report by Ibama’s inspectors and, as such, enable the regular imputation of environmental responsibility in the administrative sphere. Considering that the standards set forth by the ordinance are quite recent, there is still expectation about the effectiveness and scope of its application.
In addition to the benefits already listed, the effective application of the standard may bring greater legal certainty to the entrepreneur, since the new rule will inhibit the application of sanctions in situations that lack a subjective element to the supposedly unlawful conduct.
If the imputation of a penalty actually takes place, the sanctioned party will have the necessary information to adequately exercise its right to contradictory and broad defense, since, if completed correctly, forms A and B will present detailed information by Ibama agents on the alleged unlawful conduct.
