Documents from Ibama (Brazilian Institute for the Environment and Renewable Natural Resources) obtained by Sheet point to a new offensive by the top of the body by statute of limitations on environmental fines and the risk of the initiative reaching 45,000 cases, whose assessments against violators amount to R$ 18.8 billion.
An opinion issued by the Federal Prosecutor’s Office to Ibama, on the 27th, states that the authority responsible for judging appeals has been declaring the statute of limitations for fines because it understands that certain orders in the proceedings do not interrupt the counting of deadlines for statute of limitations.
The statute of limitations is the impossibility of punishing the offender due to the paralysis of the case in a certain period. Orders related to the movement of cases ended up shielding them from prescription, but a new understanding has been applied in the judgment of appeals.
According to the normative instruction in force on the investigation of environmental infractions, the judgment of an appeal at IBAMA is the responsibility of the president of the body. The position is held by Eduardo Fortunato Bim, who was appointed by the then Minister of the Environment, Ricardo Salles (PL).
Salles was fired from the ministry in June 2021, a month after the outbreak of an operation by the PF (Federal Police) that investigated the former minister’s alleged participation in crimes of facilitating smuggling of wood from the Amazon. Bim was even removed from office for 90 days by the STF (Supreme Federal Court), within the scope of the same operation – he returned to office shortly afterwards.
The two give vent to the initiative of President Jair Bolsonaro (PL) to empty the environmental inspection bodies.
Bolsonaro defends that there are fewer fines and acted in this direction throughout his term. The promise was reinforced in the race for reelection. On Sunday (2), Salles was elected federal deputy for São Paulo — the fourth most voted, with 640,900 votes.
The legal opinion of the Federal Prosecutor’s Office with IBAMA states that the decision to declare the statute of limitations for fines, based on the argument that simple orders of “mere expedient” do not interrupt the statute of limitations, is contrary to the understanding in force in the body, expressed in a normative guideline 2009, updated in 2014.
According to the Federal Prosecutor’s Office, ordinary acts of a process on environmental infractions, related to the movement of the records, must interrupt the statute of limitations.
Ibama’s presidency has been applying a different understanding and says it is based on precedents judged by TRFs (Regional Federal Courts). The so-called intercurrent prescription is applied with the argument that only effective acts in the process, aimed at its instruction, would interrupt the counting of the prescription period.
“Ibama follows the recently updated jurisprudence of the TRFs of the 1st, 3rd, 4th and 5th regions, as well as that of the STJ (Superior Court of Justice), regarding the subject in question”, said the body, in a note. The institute did not respond to questions about the regulations that are still in force, nor about how many fines have already been considered prescribed due to the understanding applied.
According to the rules in force, the intercurrent prescription starts to be counted from the moment the infraction notice is drawn up. The deadline is three years, so that there are no more possibilities of punishment due to the lack of movement in the process.
To support an analysis of the new offensive to overturn environmental fines, the Federal Prosecutor’s Office asked the responsible sector of Ibama —Cenpsa (National Center for Environmental Sanctioning Process)— to survey the possible impacts in the event of massive application of the statute of limitations.
In a September 8 document, coordinators at the Ibama unit stated that 45,000 cases have “a high probability of being affected by the statute of limitations”, if the so-called mere dispatches are not able to interrupt the statute of limitations.
This is the total number of cases sent for investigation and judgment before a 2019 decree, in the first year of the Bolsonaro government, which instituted environmental conciliation as a further step to weaken environmental enforcement.
According to the document, these 45,000 processes were instructed in the states and were forwarded to a national team of instruction. They are equivalent to about 70% of the total number of cases still under investigation, according to the document.
The nominal value of the fines, without monetary restatement, is R$ 18.8 billion, according to the calculation of the technical team, “which corresponds to about 75% of the total value of the liabilities of processes”.
The offensive for invalidating environmental fines is added to other initiatives by Eduardo Bim’s administration at Ibama, revealed by the Sheet.
On March 13, a report showed that a document from the agency itself pointed to the risk of prescription of more than 5,000 notices of environmental violation drawn up under the Bolsonaro government, due to the inability to process the records for submission to trial.
On the 30th of the same month, another report revealed that an order signed by Bim annuls stages of environmental infringement proceedings and expands the possibilities of prescribing fines.
The president of Ibama considered the notification of violators by public notice for the presentation of final arguments in the processes invalid, in cases where it would be possible to locate the accused. He said he was based on the jurisprudence of the TRFs, the STJ and the AGU (Advocacy-General of the Union).
Technicians from Ibama point out that Bim’s dispatch should have an effect on thousands of processes. The president of the agency himself stated, in the document, that most IBAMA units adopted the practice of subpoena by public notice for closing arguments.
The new understanding also contradicts an opinion issued by the Federal Prosecutor’s Office of Ibama, in force since 2011, which says that the presentation of final arguments based on notification by public notice does not violate articles of the law that regulates the administrative process in the federal public sphere.
“The nullity of the subpoena generates the annulment of all subsequent procedural acts, which do not have legal effects, not even to interrupt any prescription of the punitive or intercurrent claim, since it is not allowed that void acts generate an interrupting effect of the prescription”, said Bim. in the March document.
Issues parallel to the collection of the fine, such as embargoes, demolitions and seizures, also do not interrupt the statute of limitations, decided the president of IBAMA.
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