Published on January 1, 2023, Decree 11,373/23 amended Decree 6,514/08, which regulates the procedure for environmental administrative violations and sanctions at the federal level.
In its 14 years of validity, Decree 6,514/08 was subject to repeated changes, the most recent – until now – made by Decree 11,080/22, which entered into force last May . Many of the alterations introduced in 2022 have now been amended or repealed by Decree 11,373/23.
Among the main changes brought by the new decree is the exclusion of the conciliation hearing as a stage of the administrative process resulting from the issuance of infringement notices relating to environmental administrative violations.
Decree 6,514/08, in the form amended by Decree 11,080/22, established that the defendant, before presenting his defense and if he had not expressed his disinterest in conciliation, would participate in a conciliation hearing, to be informed of possible solutions aimed at ending the proceedings. Said solutions are:
- discount for payment of the fine;
- installment plan for payment of the fine; and
- conversion of fines into environmental quality preservation, improvement, and recovery services.
The conciliation hearing also resulted in the interruption of the deadline for submission of defense by the defendant . With the end of the conciliation hearing stage, there is no longer interruption of said deadline, which was maintained in 20 days.
With new wording given by Decree 11,373/23, the possible legal solutions to end environmental administrative proceedings are available regardless of holding a conciliation hearing.
The defendant may require the conversion of the fine into services of preservation, improvement and recovery of the quality of the environment, until the presentation of his closing statements.
The conversion can lead to the application of discounts to the total amount of the fine, depending on the time of the request for conversion and whether the accused entrepreneur is considered to be responsible for the execution of the project to be financed by the conversion of the fine.
In cases where the entrepreneur is responsible for carrying out the project – called direct conversion – the discount on the amount of the fine will be 40%, if the request for conversion is made until the filing of administrative defense by the defendant, and 35% for requests made until the submission of the closing statements.
In indirect conversion, when the entrepreneur adheres to a project previously selected by the entity who issued the fine, the discount will be 60%, if the request for conversion is made until the filing of administrative defense, and 50%, if made until the submission of the closing statements.
Also, in regards to the amount gathered through fine payments, changes were made to the portion that will be allocated to the National Fund for the Environment (Fundo Nacional do Meio Ambiente or FNMA).
Decree 11,373/23 now establishes that50% of the amount gathered by environmental administrative fines is to be reverted to the FNMA. In previous wording, given by Decree 11,080/22, only 20% was destined to the FNMA.
This particular point relates to another decree published on the same date: Decree 11,372/23, which regulates Federal Law 7,799/89 – which established the FNMA.
In addition to the procedural changes, we see that Decree 11,373/23 and Decree 11,372/23 seek to revitalize the FNMA.
Based on these procedural changes, it is worth monitoring the procedures resulting from environmental administrative infractions, to evaluate the impacts of Decree 11,373/23, especially regarding the time elapsed for ending discussions in the administrative sphere.
