By Renata Amaral and Alexandre Jabra, partner and associate of Environment and Climate Change group of Trench Rossi Watanabe, respectively
Non-compliance with environmental obligations
In case of unfeasibility to comply with environmental obligations, such as those established in the technical requirements for environmental licenses or those in consent agreements (e.g., submittal of reports, implementation of investigation and/or remediation measures, etc.), it is possible to allege the occurrence of force majeure and, as a result, be exempted from the effects of non-compliance.
Even if the argument of force majeure is applicable, in case it is not possible to partially or fully comply with the deadline of certain environmental obligations, we recommend informing the agency about the justification for the delay, highlighting the specificities of the case to demonstrate good faith and diligence. To the extent possible, we also recommend filing an updated schedule with the applicable new deadline and indicating that the proposed measures are conditioned to future and uncertain events, such as the opening of businesses, public agencies etc.
Note, however, that such an argument might not be accepted if the company was already in non-compliance with its obligations before the Covid-19 crisis began.
The Federal Environmental Protection Agency (IBAMA) published
Ordinance No. 826 on March 21, 2020, establishing that all procedural deadlines
indefinitely as of March 16, 2020 and the suspension is valid for either hard copy or electronic procedures.
Moreover, the agency published Normative Instruction No. 12, on March 26, 2020, establishing that the deadline to file the Annual Activities Report (RAPP), which is an obligation related to the Federal Registry of Potentially Pollutant Activities that Use Natural Resources (CTF/APP), for 2019, has been extended. The new deadline is June 29, 2020.
TheFederal Environment Protection Agency for Specially Protected Areas (ICMBIO)published Ordinance No. 226 on March 24, 2020, determining the suspension of all procedural deadlines for an undetermined period, starting on March 23, 2020. The suspension is valid for either hard copy or electronic procedures.
In addition, ICMBIO has prohibited visits to all Federal Specially Protected Areas (such as National Parks) for the period of 01 (one) week, starting on March 17, 2020, after a request from the Federal Executive Power to the Ministry of Environment.
The National Mining Agency published Resolution No. 28/2020 on March 26, 2020, establishing the suspension of procedural and material deadlines until April 30, 2020. It is worth mentioning, however, that the new rule does not apply to those obligations and deadlines related to the stability and security of mining tailing dams.
The National Historic and Artistic Heritage Institute (IPHAN) published Ordinance No. 775/2020 on March 19, 2020, thereby suspending face-to-face service and all procedural deadlines for the period of 15 (fifteen) days, counting from the date of publication.
The National Council of Justice established, within the scope of the Judiciary Power, an extraordinary duty regime, to regularize the delivery of services in order to prevent contagion by COVID-19. All the deadlines are suspended until April 30, 2020, as well as the visits, meetings and hearing with plaintiffs, defendants, lawyers, and other parties that must be performed remotely.
– São Paulo
The Environment Protection Agency of the State of São Paulo (CETESB) published Board Decision No. 022/2020/P in order to regulate some emergency procedures regarding the COVID-19 crisis. Please find bellow the main topics:
- Activities: CETESB has not suspended its works. The public agents will continue working remotely.
- Visits to the agency: Visits are suspended for the period of 30 (thirty) days, starting on March 16, 2020, except in cases of express authorization from the Presidency. Requests to obtain copies must be performed by phone or email, with an estimate reply after the restrictions cease.
- Deadlines: Procedural deadlines are suspended for either hard copy or electronic procedures for the period of 30 (thirty) days, starting on March 16, 2020.
Therefore, although the deadlines for both environmental sanctioning and management/licensing procedures are suspended, we recommend informing CETESB about the need to postpone or request a deadline extension to comply with obligations related to such procedures.
– Rio de Janeiro
The Environment Protection Agency of the State of Rio de Janeiro (INEA) is regulated by State Decree No. 46,973 from the State Government and published on the Official Gazette on March 17, 2020, which establishes:
- Deadlines: Procedural deadlines for all public agencies in the State of Rio de Janeiro, including INEA, are suspended for 15 (fifteen) days, as well as visits to access the procedures. It is worth mentioning that INEA is currently working with a reduced number of employees. The filing of documents is still working normally.
Note that other state environment agencies have also established specific rules. Please find below some examples:
(i) Rio Grande do Sul: The State Environmental Agency (FEPAM) suspended deadlines for administrative defenses and appeals, on March 19, 2020, for the period of 30 (thirty days), which includes the filing of any documents related to hard copy procedures, but not for other deadlines in administrative procedures, such as compliance with environmental licensing obligations. Meetings and hearings are being rescheduled and meetings will be held by videoconference.
(ii) Paraná: The State Environmental Agency (IAP) suspended public service for the period of 10 (ten) days, starting March 18, 2020, but did not mention anything about deadlines.
(iii) Minas Gerais: The state’s environmental agencies (SEMAD, IEF, IGAM and FEAM) suspended procedural deadlines and face-to-face service until April 30, 2020.
(iv) Tocantins: The State Environmental Agency (NATURATINS) suspended all public service. Contact should be made only through email and deadlines did not suffer any changes.
(v) Pará: The State Environmental Agency (SEMAS) suspended face-to-face service and deadlines for the period of 15 (fifteen) days, starting on March 20, 2020, but deadlines did not suffer any changes.
(vi) Mato Grosso do Sul: The State Environmental Agency (IMASUL) suspended both the public service and deadlines of any nature, for an undetermined period.
In case of procedures in other states, we recommend verifying the specific normative rules for those states. Moreover, considering that the subject is very dynamic, it is important to confirm if the environmental agencies have published updated rules.
The municipal government of the City of São Paulo published Decree No. 59,283/2020, establishing a state of emergency in the municipality. Several restrictions thus apply to the Municipal Environment Protection Agency (SVMA), as follows:
- Deadlines: Deadlines for all municipal administrative procedures are suspended for the period of 30 (thirty) days, starting on March 17, 2020.
- Public Service: According to the new Decree, the public service at municipal agencies is still ongoing, but only upon prior scheduling. Despite this fact, SVMA has informed that their building is closed to the public, thus making it impossible to obtain copies of the procedures during the emergency situation.
As for procedures in other municipalities, we recommend checking the rules in force in each location.
Public Prosecutor’s Office
The Federal Prosecutor’s Office (MPF) has been adopting different regulations in the state offices. The Office of the State of São Paulo (PR-SP) is adopting the same rules as the Federal Regional Court in the State of São Paulo (TRF-3), which published Joint Ordinance PRES/CORE No. 03/2020:
- Deadlines: All procedural deadlines are suspended until April 30, 2020.
- Public service: suspended for the period of 30 (thirty) days, starting on March 17, 2020.
The District Attorney’s Office of the State of São Paulo (MPSP) published Resolution No. 1197/2020-PGJ on March 17, 2020, later edited by Resolution No. 1199/2020-PGJ, adopting the following measures:
- Deadlines: All procedural deadlines, of any nature, are suspended until April 30, 2020, except in cases of urgency;
- Public service: suspended for the same period. Contact should be made by phone from 11 am to 5 pm.
- Superior Council for the Public Prosecution Sessions: The DA’s Senior Board can, in cases of urgency, and upon prior publication on the Official Gazette, make virtual judgements.
The information above is subject to updates in response to the latest developments in the COVID-19 pandemic in Brazil. For this reason, it is important to monitor the environmental authorities’ analysis and regulations in order to assess the need to take further measures.