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In brief

On November 30, 2020, Ordinance No. 589/2020 was published to update guidelines and criteria applicable to the environmental conciliation phase of IBAMA and ICMBio’s administrative procedures, while lasts the public health emergency situation caused by the pandemic of coronavirus (Covid-19).


Recommended actions

Considering the changes related to the scheduling of conciliation hearings provided in Ordinance No. 2/2020, it is recommended to companies that have administrative procedures in progress with IBAMA and ICMBio to comply with the new guidelines and criteria established by the agencies.

In more detail

As of the publication of the Ordinance, the fined company, whose administrative procedure is in the environmental conciliation phase, will be notified to express interest in the hearing within thirty days.

The new infraction notices issued by IBAMA and ICMBio as of publication of the Ordinance will already contain instructions related to the expression of interest of the fined company. As a result, the company, instead of attending the hearing in person, may:

(i) Opt for the conciliation hearing by videoconference. In this case, the response must indicate the electronic addresses of all those who will participate in the environmental conciliation hearing.

(ii) Waive the participation in the hearing.

(iii) Adherence, regardless of the conciliation hearing, to the possible legal solutions to end the procedure, such as the payment with discount, installment payments and the conversion of the fine into services for the preservation, improvement and recovery of the quality of the environment.

Adherence to one of the legal solutions set out above will be formalized only after a preliminary analysis of the environmental assessment by the Agency. If the request for adherence to one of the solutions is dismissed, the fined company will be notified to, within twenty days, offer its defense against the infraction notice. This decision may be subject to appeal.

If there is an express waiver of the company to participate in the conciliation hearing or if there is thirty days without any manifestation of interest from the company, the period for the presentation of an administrative defense begins on the next business day.

If the company expresses interest in holding the conciliation hearing, the environmental agency will inform the date and time of the session with notification (by electronic address or postal mail).

The environmental agencies will publish in their website and Federal Official Gazette the list of conciliation hearings that are scheduled.

Finally, considering that the conciliation hearings can be held by videoconference, the expectation is that they will be scheduled soon.

Our Environment, Sustainability and Climate Change Team is available to offer further assistance on the matter.

Click here to view the Portuguese version.

Author

Renata Campetti Amaral joined the firm in 2002 and became a partner in 2013. She is the head of the firm’s Climate Change, Environmental Law and Sustainability group in Brazil, and the leader of Ablfs McKfnzif’s global climate change group in Latin America. Is also the coordinator of the sustainability initiatives conducted by the office’s B-Green Committee. Renata assists the major players in the Brazilian market in Nature-bases Solution (NbS) projects, transaction of carbon credits, implementation of decarbonization strategies and carbon-related advocacy and regulatory matters. Renata leads several of the largest environmental and regularization cases in the country. She has extensive experience in sustainability matters, as well as in managing crises and negotiating with stakeholders. Advises on negotiating with authorities; judicial and administrative litigation; reviewing environmental aspects of institutions and financial operations; drafting environmental provisions in contracts and other commercial operations. Renata has extensive experience in dealing with environmental management, legal auditing and other organizational practices; regulatory and institutional analysis and environmental control; negotiation and implementation of environmental remediation plans; environmental licensing; legal aspects of biodiversity protection; environmental crisis management; development of preventive policies and strategies for companies; negotiation and drafting of contracts for the purchase and sale of carbon credits and acting in transactions related to various aspects of the energy transition.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

Author

Giovani Bruno Tomasoni joined the Firm in 2008 and became partner of the Environment, Consumer and Sustainability practice group in 2020. He practices with focus on Environment, Public Law, Energy, Forestry, and helps clients in the internalization of concepts such as sustainability, ESG, circular economy, environmental compliance, among others.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

Author

Alexandre Salomão Jabra joined the firm in 2010. He integrates the environmental, consumer and sustainability practice group, with focus on consultancies, administrative procedures lawsuits and negotiations. In the environmental area, Alexandre has a wide breadth of experience in cases involving contamination, environmental and urbanistic licensing procedures, environmental liability, management of solid wastes and take-back requirements, effluents, electromagnet pollution, air emissions, forestry matters, protected areas and minorities, biodiversity, controlled chemicals products, socio and environmental liability of financial institutions, climate change, carbon markets and urbanistic regularization. In the consumer area, Alexandre has experience with consultations, administrative and judicial procedures related to Consumer Law issues with federal, state and municipal agencies, such as DPDC, PROCONs, Public Prosecutors and Municipalities involving recall, offers, data protection, misleading and abusive advertising, privacy, e-commerce, abusive clauses, commercial practices, terms and conditions and violations to the Brazilian Consumer Defense Code. Alexandre represents several clients in the oil&gas, automotive, chemicals, technology, food, communications, mining, finance and services sectors.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.