Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
The environmental administrative process is the legal procedure that the competent body has in place to investigate environmental infractions. All the behaviors that constitute environmental infractions and their respective penalties are provided for by law and the procedure is guided by due process of law, observing rules and principles, including legal certainty, procedural speed and reasonable duration of the process.
The statute of limitations is the loss of the agency’s right to impose administrative penalties on the offender. The statute of limitations runs during the process, when the agency remains inactive for a long period without moving the process along.
The statute of limitations exists to provide security in relationships, so that no one is forever subjected to a process.
The majority of state environmental agencies have adopted the position that the statute of limitations does not apply to administrative proceedings[1].
The environmental agencies that adopt this position base their arguments on the lack of a state law that provides for the interlocutory statute of limitations, as well as the impossibility of applying the provisions of federal law at the state level.
Federal Law No. 9,873/1999, which governs the limitation period for punitive actions by the Public Administration at the federal level, establishes in its article 1, paragraph 1 that if the administrative process is suspended for more than 3 years pending judgment or a decision, the process will be closed, without prejudice to the responsibility of the official responsible for the unjustified suspension.
In the same vein, Decree 6.514/2008, which provides for punitive actions in federal administrative proceedings on environmental matters, in its article 21, paragraph 2, recognizes the application of the inter-current statute of limitations in proceedings paralyzed for more than 3 years, under the same wording as the federal law.
We have observed that administrative proceedings before state environmental agencies are difficult and inefficient, as the time between the date the procedure is initiated and its conclusion takes a long time.
The legislation prescribes countless deadlines for the defendant and, to an infinitely lesser extent, deadlines for the environmental agency, which does not exempt it from handling the proceedings with an eye to efficiency.
It’s important to note that the statute of limitations only applies to cases in which the environmental agency is responsible for the stoppage. If the defendant is inactive, the statute of limitations does not apply.
Although the law does not set a reasonable time limit, it is understood to be the time in which the process reaches its goal. A delay in the duration of the process is totally unfavorable for the environmental agency itself, since the longer it takes, the more it costs and the more cases it accumulates.
The defendant will suffer structural and financial changes that will inevitably culminate in frustrated executions, with even greater difficulty in seeing the environmental damage recovered, and the analysts and technicians responsible for the processes will always have to rework the analysis of the processes.
Furthermore, justifying the inapplicability of the statute of limitations because there is no applicable state rule is contradictory, considering that some states use their own federal legislation to typify conduct against the environment, since they do not have state legislation to do so.
In this case, it is acceptable to apply the federal rule on a subsidiary basis in the event that there is no specific state rule.
It is important to note that the application of the inter-current statute of limitations does not extend to the obligation to repair environmental damage, since, in line with the STJ’s understanding, this is an unavailable right and therefore imprescriptible.
Just as business activities must pay attention to the harmony between the management of production processes, environmental legislation and the responsible and sustainable use of environmental resources, sanctions arising from administrative proceedings must curb practices that harm the environment in order to reprimand offenders, while also developing their educational function. An administrative process that violates reasonable duration, the legal security of the parties and compliance with the law does not achieve these objectives.
It is necessary to review the applicability of the inter-current statute of limitations in environmental proceedings at the state level, in order to ensure the effectiveness of the agency’s actions, while also respecting the principles enshrined in the law.
[1] As an example, the following is an opinion from the Minas Gerais State Attorney General’s Office: http://www.age.mg.gov.br/images/stories/downloads/advogado/pareceres2010/parecer-internet-15.047.pdf
