Administrative law has been going through an accelerated change in its paradigms. Once centered on classic (though not always tangible) concepts, such as the supremacy and inalienability of the public interest, the area has been bending to reality: there are facts of life, such as environmental crises and social dynamics, that directly impact on the lives of the entire community. The issues that arise from these facts demand complex answers, which cannot be solved by state impositions, but must be agreed upon among the most diverse segments of society, such as companies, civil society, and third sector entities, among others. This is the case with recent practices related to administrative consensus, whose limits and possibilities are still being defined by public-private interaction.
The concept of a "risk society", whose greatest exponent was the German sociologist Ulrich Beck, is a possible theoretical matrix to explain the change in the classic paradigms of administrative law. For this author, the accelerated technological development that marks our times brings, on one hand, improvements in the quality of life of citizens, but, on the other, it generates risks (especially environmental ones) whose consequences can assume a global scale. The capabilities for mitigating these risks go beyond the traditional attributions of institutions, such as the State, and conventional mechanisms for solving problems, such as the exercise of externalized power by the Public Administration. The production of large-scale consumer goods, the exploitation of nuclear energy, or mining activities deliver goods that are essential to life in society, but they carry potential or actual risks that can equally affect everyone, and with consequences that are not always properly addressed.
In this sense, it is increasingly common for the interests of the State and private parties to be concerted, with the loosening of principles such as the inalienability and supremacy of the public interest, which are classically used as grounds for submission of private parties to the interests held by the State, in order to (in an apparent paradox) maximize the pursuit of the public interest, whether in the prevention of damage (risk management), or in the search for solutions in the event such damage actually occurs (crisis management). The Public Administration loosens its inspection and sanctioning position in search of more participative and managerial roles in the effective solution of problems, especially for phenomena with great environmental and social repercussions.
Consensual action, characterized especially by the signing of bilateral or multilateral agreements that contemplate both the specific interests vested in the Public Administration and the legitimate individual interests protected by the legal system, has been present in the legal system for years, as in the case of Decree Law 3,365/41 (expropriation settlement), Decree 94,714/87 (execution of consent orders), and the micro-system of diffuse and collective rights (consent decrees), but has only recently reached its inflection point.
One example is Law 13,140/2015, which creates a legal framework on the voluntary settlement of conflicts within the Public Administration. It provides for the possibility for the Federal Government and states establishing chambers for the prevention and administrative resolution of disputes between agencies and entities of the Administration or between the Administration and private parties.
In the wake of this development in standards, recent changes to the text of the Law of Introduction to the Norms of Brazilian Law (Decree Law 4,657/42) consolidated the model of consensual control of the Public Administration, through the creation of bilateral mechanisms, such as the signing of "commitments with the interested parties", aimed at legal solutions that are proportional, equitable, efficient, and compatible with the general interests. The conclusion of these settlements has also proven to be an innovative tool in risk management and crisis management, as opposed to traditional litigation measures.
The legal discipline and the adoption of consensual mechanisms in administrative practices show the loosening of a rigidly hierarchical relationship between the Administration and the recipients. The consensual mechanisms for dispute resolution in the repair of major events create a locus for dialogue and the definition of attributions to the private parties responsible for repairing the damage, the needs of the Administration, and the public interest. An interesting example of these practices are the industry agreements for the reverse logistics of solid waste, such as plastic packaging for storing lubricating oil and fluorescent lamps, waste that contaminate water tables, and put the health of the entire community at risk. These agreement modalities reveal the importance of the State's role in defining and monitoring and evaluating the targets, as well as disseminating the settlement and practices to other sectors of society.
The management of large-scale risks demands close and transparent dialog with the other segments involved, in which the negotiation of bold solutions is an effective environmental policy instrument. And for operators of administrative law, whether in the public or private sector, it is essential to develop skills in reading and building dispute resolution scenarios and negotiation techniques in more cooperative and horizontal environments.
