Acordos Substitutivos de multa ambiental: O dilema da legalidade de aplicação do artigo 26 da LINDB

Abstract

The objective of this work is to approach the substitute agreement institute, redesigned and refounded by the Brazilian legal system through Law n. 13.655, of April 25, 2018, which included article 26 in the Law of Introduction to the Norms of Brazilian Law. In the first chapter, dogmatic transformations, normative evolution and jurisprudential antecedents are approached to contextualize, in the second chapter, the instruments of environmental consensus aimed at the sanctioning process. The third chapter deals with the legality dilemma of substituting environmental fine agreements for the application of article 26 of the LINDB and its challenges. In the fourth chapter, a case study is made on the four first and main substitute agreements for environmental fines, concluded or in the final stages of celebration. This empirical perspective highlights the distinction of the LINDB substitutive agreements in relation to the conversion of fines into environmental services provided for in article 72, §4, of Law n. 9,605/1998 and some problems encountered. Finally, in the fifth chapter, based on the normative framework that permeates the theme, parameters and procedures are proposed involving the proposal, instruction and execution of substitute agreements for environmental fines in situations of legal and contentious uncertainty in the exercise of police power. The intention is to encourage discussion in favor of building foundations to better understand and improve the use and control of the institute applicable to the federal environmental sanctioning process. It is concluded that the use of substitute agreements can bring a high degree of efficiency to Brazilian environmental public policies and avoid situations of instability and uncertainty in the exercise of police power.