A CONSENSUALIDADE NO ÂMBITO DO PROCESSO ADMINISTRATIVO FEDERAL RELATIVO ÀS MULTAS AMBIENTAIS

Abstract

This study assesses whether the creation of a mandatory preliminary hearing by Federal
Decree No. 9.760/2019 in the administrative process concerning the imposition of environmental
fines does not matter in the provision of the protected environmental asset in
the exercise of the State’s police power. Therefore, an analysis of the consensus in the scope
of public administration and legislation that supports it will be made, as well as a detailed
study on the aforementioned decree in contrast with the principles of legality and efficiency.
Data from the Secretariat for Infrastructure and Environment of the State of São Paulo and
the Ministry of Transparency and Brazilian Office of the Comptroller General (CGU) will
support this study and its findings. The consensus meets the demands of the constituent
lawmaker and is enshrined in Brazilian legislation. It allows citizens to engage in resolving
conflicts and reduces judicialization as well. The opening of a bargaining phase in the procedure
related to the imposition of environmental fines brings efficiency to it, increases the
collection, and makes it more effective in repairing environmental damage. The traditional,
repressive, and imposing method has not been efficient in collecting environmental fines.
The Federal Decree fulfils the consensus in the field of environmental supervision and is in
conformity with articles 37 and 225 of the Brazilian Federal Constitution. The bargaining
does not revolve around the environmental asset to be repaired or the duty to comply with
environmental standards so that there is no provision for the protected asset. In addition,
the decree encourages the payment of the fine and its direct conversion into environmental
services. Hence, it speeds up environmental repair and reduces the conflict between citizen
and State. This is an advance that should be encouraged.