Owner or possessor of rural property cannot be fined for environmental infractions while fulfilling commitment terms

By dismissing the appeal filed by the Brazilian Institute of the Environment and Renewable Natural Resources (Ibama), the 5th Panel of the Federal Regional Court of the 1st Region (TRF1) confirmed the sentence of the federal judge of the Judiciary Subsection of Sinop/MT, who dismissed the environmental fine because the author, on the date of the assessment, had already regularized the legal reserve area. 

Based on art. 59 of Law 12.651/2021 (Forest Code), the federal judge found in the sentence that, as the deforestation of native vegetation occurred before 22/07/2008, on the date of the assessment the author had already complied with the conduct adjustment term and regularized the legal reserve area, having the only Environmental License to carry out agricultural activities. 

Appealing the sentence, the municipality argued that it went beyond the request (ultra petite). He maintained that the appellee did not have environmental licensing and that the Forest Code did not grant amnesty for offenses committed prior to its enactment. 

When analyzing the process, the rapporteur, federal judge Daniele Maranhão Costa, explained that the issue of the trial ultra petite does not prosper because the author initially stated that the infraction questioned is the one that supported the request for the current administrative process, since Ibama reported that the first administrative process, based on the same infraction, was lost/disappeared/lost. 

The judge highlighted that, on the merits, the requirements established by law, namely, the existence of environmental liabilities prior to July 22, 2008 and their effective regularization, through regular compliance with the commitment term, are present, which implies the deconstitution of effects of the fine imposed.

Concluding the vote, the rapporteur decided to increase the legal fees from 10% to 12% of the value of the case of R$100.000,00, taking into account the additional work carried out at the appeal level (art. 85, § 11 of the Code of Civil Procedure 2015).

The ruling received the following summary:

ADMINISTRATIVE AND ENVIRONMENTAL. CIVIL PROCEDURE. CANCELLATION ACTION. ENVIRONMENTAL ILLEGAL. NOTICE OF INFRINGEMENT DRAWN BY IBAMA. FINE APPLIED. SUSPENSION OF EQUITY. POSSIBILITY. FOREST CODE. ART. 59. ULTRA PETITE SENTENCE. NON OCCURRENCE. SENTENCE MAINTAINED. NECESSARY REMITTANCE AND APPEAL DISCLAIMED. 1. The art. 59, §4, of Law no. 12.651/12, provides that, in the period between the publication of the Forest Code and the implementation of the PRA Environmental Regularization Program, in each State, the owner or possessor of the property, while fulfilling the commitment term, cannot be fined for infractions environmental issues that occurred before July 22, 2008, relating to the irregular suppression of vegetation in Areas of Permanent Preservation, Legal Reserve and restricted use. 2. Hypothesis in which the owner was fined on 22/7/2007, a date prior to the time frame established by the Forest Code (art. 59, § 4, of Law no. 12.651/12) for allegedly devastating native vegetation without authorization (Infraction Notice no. 544296-D; administrative process no. 02013.000538/2012-42). From what appears in the records, there was normal regularization of the ownership of the rural property, with the signing of a conduct adjustment term relating to the property's environmental liabilities and obtaining a Single Environmental License, in which the regularized legal reserve was registered. 3. IBAMA's claim that the grounds raised in the ruling would have exceeded the limits of the demand does not deserve to be sustained. This is because such questions were regularly raised by the author initially, in addition to configuring the evidentiary content of the action itself, which is composed, so to speak, of documents that collate the administrative defense, the Single Environmental License No. 7896/2011, the Term Environmental Conduct Adjustment No. 126/2010, among others that proved the legal status of the defendant, now being appealed, in view of environmental legislation. 4. In this case, the requirements established by law, namely the existence of environmental liabilities prior to July 22, 2008 and their effective regularization, through regular compliance with the commitment term, are present, which implies the deconstitution of the effects of the fine applied. In this sense: AMS 1006612-24.2018.4.01.3400, Rel. Federal Judge Carlos Moreira Alves, Rel. Conv. Federal Judge Rodrigo Navarro de Oliveira, TRF1 Class, PJe 17/06/2020. 5. The sentence that annulled the fine imposed by infraction notice no. 544296-D, considering the provisions of §4 of art. 59 of the Forest Code - Law no. 12.651/12. 6. Necessary referral and appeal from IBAMA which is rejected. 7. Attorney fees increased from 10% (ten percent) to 12% (twelve percent) on the value of the case indicated at the origin, of R$ 100.000,00 (one hundred thousand reais), in accordance with art. 85, §11, of the CPC. (AC 1000058-80.2017.4.01.3603, FEDERAL JUDGE DANIELE MARANHÃO COSTA, TRF1 - FIFTH PANEL, PJe 02/08/2021)