The new Forest Act applies to previously signed agreements to its validity?Thursday March 15th, 2018
After nearly two years of waiting, finally the federal government gave the “starting gun” for the more than 5 million rural properties in the country begin to enroll in the Rural Environmental Registry – CAR, created at the national level, the Federal Law 12651/12 (new “Forest Code”)  .
Anxiety was great because the CAR should, in theory, be the instrument that will allow for an x-ray of all rural properties and, based on that diagnosis, direct farmers to adhere to an Environmental Regularization Program – PRA, the which also theoretically, should provide the necessary conditions, both stimuli such as coercion, so those producers recover any remaining environmental liabilities after the amnesty granted by the new legislation.
However, it should be cause for celebration – after all, the CAR is the only thing that the new law brought positive for forest protection in the country – just bringing a certain uneasiness. First , because the registration system governed by the Normative Ruling the 2/2014 of the Ministry of Environment has a number of features that makes us doubt its effectiveness in performing in the short term, a proper diagnosis of the environmental situation of the rural property, base for the regularization process (see http://isa.to/1v4nvaD ).
Second because, to date, the PRAs at both the federal level and the states did not bring, except honorable exceptions, nothing concrete to support, finance or encourage conservation or forest restoration in the country, as was to be expected from programs aimed at environmental compliance and not just the legal regularization of illegal deforestation of the past (see, in this respect, http://isa.to/1v4nfs8 ).
Possibility of TACs review?
But here we will explore a specific point of Decree 8235/14, which, by way of regulating and give clarity to the implementation of the PRAs, brought a rule, it seems, will create immense legal confusion and thus uncertainty to many producers adhering to the programs. In Article 12, the decree explicitly says that the terms of appointments or similar instruments for environmental regularization of rural property relating to the Permanent Preservation Areas, Legal Reserve and restricted use, signed under the under the previous legislation, shall be revised to conform to the provisions of Law 12651/12
What does that mean? Means that, for example, if a producer had illegally deforested riparian forests of your property, or simply had not recovered (the native vegetation protection obligation is propter rem , ie accompanies the property, whatever your holder), and was forced to do so through a Conduct Adjustment Term – TAC signed with prosecutors, he may now review the agreement to apply the less favorable rule to the environment, which is the new forest law. If deforested 10 hectares on the edge of a river and pledged to recover the 10, could now review the agreement to recover only 5 for example.
It turns out that this device affront majority of the Judiciary positioning, even been made clear in the Superior Court of Justice – STJ, that the new law can not be retroactive to modify agreements already signed or sentences already final and unappealable. Ie following a basic principle of law, the dominant view is that the law can not hurt the perfect juridical act.
Position of the state courts
We conducted extensive research in all Courts of Justice of the States, the Federal Regional Courts and the Supreme Court to understand is there and what is the majority position regarding the possibility of reviewing agreements or judicial decisions based on the new law. Find judged on the matter in the courts of Justice of São Paulo, Minas Gerais, Rio Grande do Sul and Mato Grosso do Sul and the Supreme Court. Not found any decision on the matter in TRFs  .
Looking only at the State Courts are 13 decisions against the possibility of modifying agreements or judgments based on previous law and 7 favorable. It should be noted, however, that the latter have as their origin, the vast majority (6 or 85%), a single civil chamber of a single court (Court of Mato Grosso do Sul – TJMS), while conflicting decisions provide of all courts surveyed, including the TJMS own (3 decisions), and in this case, they are even more recent, which indicates not only a divergence, but a tendency to change positioning. See the chart below:
The Court of Justice of Minas Gerais – TJMG is unanimous in stating that one can not apply the new law to TACs already signed and running, or even decisions already final and unappealable. Nine judgments accordingly, seven concerning requests for modifications of judicial decisions based on previous legislation and two relating to TACs review.
All judgments are based primarily on respect for the perfect legal act. This is the case number judgment 1.0016.10.003875-7 / 002, in which the Court judge Heloise Combat states: Article 5, XXXVI of the Federal Constitution / 88 ensures protection of vested right, the perfect juridical act and the res judicata, which they can not be achieved by subsequent legislative amendments. In the wake of the constitutional command, the Civil Procedure Code extended the protection of res judicata to court decisions, by providing, in Article 471, that “no judge will decide again issues already decided, for the same deal.” Therefore, the general rule in Brazilian law is to the effect that, having been a final decision of the dispute, it is not possible to examine the issue again, which has become immutable, under Article 467 of the Code, which provides as follows: “it is called res judicata effectiveness, which makes immutable and indisputable sentence, no longer subject to ordinary or extraordinary appeal”.
In its judgment number 1.0016.11.009361-0 / 001 the Judge Valdez Leite Machado makes it clearer: However, it should be noted that the entry into force of the new Forest Code, in no way affects the running in attached, whose extrajudicial execution is the Adjustment Agreement Conduct signed between the run and the prosecutor therefore perfect legal act, which can not be achieved by the new law, behold, instituted in the enactment of Law 4.771 / 1965, pursuant to art. 6, § 1, of Decree Law 4,657 / 1942 (Law of Introduction to the Brazilian law standards, new wording of Law 12,376 / 2010): . “Article 6 The law in force will have immediate and overall effect, respected the legal act perfect, vested rights and res judicata. § 1 reputed to be perfect legal act already consummated pursuant to applicable law at the time it made. “. (…) The intention of the run to evade compliance with the Conduct Adjustment Agreement signed with the MP affronts principle of good faith objective, since its obligation contained in signed TAC and no one is allowed venire contra factum proprium (plead in judgment on the acts themselves).
In its judgment only on the subject, the São Paulo Court will review the possibility of modification of sentence, res judicata, which determines the restoration of Permanent Preservation Areas – APPs and Legal Reserves in certain rural property. The decision is quite interesting because it is based not only on the formal impossibility of feedback of the new law to strike the res judicata, but also in the physical impossibility of retroactive to injure the vested right of society to a healthy environment, under penalty of creating insecurity legal: Despite the innovations introduced with the enactment of the new environmental planning (Law No. 12,651 / 2012), the Court observes that, in this case, res judicata can not be neglected, not only at the risk of offending the principle of legal certainty, but above all because the sentence (…) ensures environmental interest (preservation / repair of the deforested area), which was erected interest that the constitutional right to a fundamental right condition. In this step, any action aimed at reducing the scope of consolidated achievements should be hindered, failing to demean the principle of sealing the social regression. (…) A segurança está implícita no valor de Justiça; possível se concluir, portanto, que tornar insegura, inconsistente, alterar seu significado ou adotar outra escala de valores menos protetivos à matéria ambiental, significa distanciamento do princípio mencionado. É isto o que determina a aplicação da vedação do retrocesso no resguardo deste direito das presentes e futuras gerações. Assim sendo, se as obrigações eram decorrentes de regras regularmente vigentes e que deveriam ser obedecidas, inviabiliza-se revisões ou mesmo reavaliações apenas em decorrência das mudanças posteriores.
It is the legal certainty that is necessary. (Interlocutory Appeal n the 2012816-29.2013.8.26.0000 – winner of the vote excerpt from Judge John Negrini Son) The only court that has dominant jurisprudence in favor of TACs review is the Court of Mato Grosso do Sul, specifically its 5th Civil Chamber. The argument put forward in the six judged that decide the revision of the agreements is, in short, that the TACs do not constitute perfect legal act, as they are agreements to adapt behaviors to the letter of the law and therefore if the law changes, they should also to change.
The vote of Judge Vladimir Abreu da Silva in Appeal No. 0101425-24.2006.8.12.0043 illustrates this line of thought: Regarding the new supervening fact claim, applies Article 462 of the Civil Procedure Code, leaving the court to that fact into consideration when deciding, ex officio or at the request of the parties. (…) Indeed, the conduct adjustment agreement has disputed legal, prevailing lesson Hugo Nigro Mazzilli, whereby adjustment commitment is an extrajudicial execution, by which a public body legitimated takes the tortfeasor committed to adjust their conduct to the requirements of law. (…) Made such considerations, and despite the respectable understanding adopted by the doctrine and jurisprudence it is perfect juridical act, it is undeniable that the requirements brought about by the new Forest Code regarding the legal reserve affect the core of the obligations agreed in TAC. (…) This is not because of violation of a perfect legal act, but the occurrence of Federal Law, which has immediate and general effect and can achieve the effects of acts done before its entry into force.
This understanding, however, is not unanimous even within the TJMS. The 1st Civil Chamber, in 2014 the beginning of the decisions handed down three decisions on the same object, but in diametrically opposite direction. In all cases the state environmental agency, IMASUL, pleaded to a TAC of termination signed with the Public Ministry, in which the agency assumed responsibility for implementing the current forest legislation at the time. Citing the case law of the Supreme Court, the Court decided that it can not be applied the provisions of the new Forest Code to modify TAC celebrating prior to its validity.
The Supreme Court and the vested right to a balanced environment
In December 2012, when evaluating a request for reconsideration of a decision already judged by the court, which had kept the administrative sanction imposed interested in illegal occupation of APP, the second group of the STJ took the following decision, which was transformed into a major jurisprudential precedent: CIVIL PROCEDURE AND ADMINISTRATIVE. NEW FOREST CODE (Law 12,651 / 2012). APPLICATION. REQUEST FOR JUDGMENT AGAINST RETHINK. Infeasibility. Principle of fungibility. RECEIVING AS requests for clarification. VIOLATION OF ART. DO NOT POINTED 535 CPC. AUTO INFRINGEMENT. Retroactivity THE NEW LAW. ACT LEGAL PERFECT. VESTED RIGHT. ART. 6, CAPUT OF LAW INTRODUCTION TO THE RULES OF THE BRAZILIAN LAW.1. Trata-se de requerimento apresentado pelo recorrente, proprietário rural, no bojo de “ação de anulação de ato c/c indenizatória”, com intuito de ver reconhecida a falta de interesse de agir superveniente do Ibama, em razão da entrada em vigor da Lei 12.651/2012 (novo Código Florestal), que revogou o Código Florestal de 1965 (Lei 4.771) e a Lei 7.754/1989. Argumenta que a nova legislação “o isentou da punição que o afligia”, e que “seu ato não representa mais ilícito algum”, estando, pois, “livre das punições impostas”. Numa palavra, afirma que a Lei 12.651/2012 procedera à anistia dos infratores do Código Florestal de 1965, daí sem valor o auto de infração ambiental lavrado contra si e a imposição de multa de R$ 1.500, por ocupação e exploração irregulares, anteriores a julho de 2008, de Área de Preservação Permanente nas margens do rio Santo Antônio.(…) 3. STJ Previous asserts that, in the environmental-urban field, the more stringent standard applicable at the time of the facts, not the contemporary judgment, less protective of Nature: The “substantive law applicable to the species is the then prevailing at the time of the facts. in casu, Law no. 6,766 / 79, art. 4, III, which provided, in its original wording, the ‘track non aedificandi fifteen (15) meters on each side’ of the stream ” (Resp 980 709 / RS, Rel. Minister Humberto Martins, Second Class, DJE 2.12.2008). (…) 6. Reconsideration Request not known. ( PET in REsp 1240122 / PR, DJE 19/12/2012, Rapporteur Minister Benjamin Herman)That decision laid the foundation of what has been the dominant understanding – and unanimous so far – the court, and that goes far beyond the defense perfect legal or res judicata, materialized in agreements signed or final judgments. It brings to heat the principle of non – retroactivity of the law to achieve the acquired rights of society to an ecologically balanced environment , guaranteed by a more protective legislation has been repealed. That is the lesson drawn from the vote of the case of the Minister-Rapporteur, Benjamin Herman:“o novo Código Florestal não pode retroagir para atingir o ato jurídico perfeito, direitos ambientais adquiridos e a coisa julgada, tampouco para reduzir de tal modo e sem as necessárias compensações ambientais o patamar de proteção de ecossistemas frágeis ou espécies ameaçadas de extinção, a ponto de transgredir o limite constitucional intocável e intransponível da ‘incumbência’ do Estado de garantir a preservação e restauração dos processos ecológicos essenciais (art. 225, § 1º, I).” After this decision, the second group of the STJ decided two other cases in which analyzed the application of new rules to cases in progress, but still had no final judgment or agreement signed under the aegis of the previous legislation, having applied to them same understanding: applies the most beneficial rule to the environment, ie, the rule applicable at the facts.
It is what draws the following decision: …….. “ADMINISTRATIVE ENVIRONMENTAL CIVIL ACTION PUBLIC PERMANENT PRESERVATION AREA LEGAL RESERVE AREA OF TRAINING OBLIGATION propter REM SUMMARY 83 / STJ IMPAIRED THE ANALYSIS OF jurisprudential DIVERGENCE LAW occurrence 12,651 / 12. IMMEDIATE IMPLEMENTATION oF INABILITY. retroactivity. PROTECTION oF ECOSYSTEM FRAGILE. STATE task. REFUSAL. 1. the jurisprudence of this Court is settled in the sense that the duties associated with the PPAs and legal Reserve have an obligation to nature propter rem, this is adhering to the title domain or possession, regardless of whether or not it was the owner the author of environmental degradation. Cases where there is talk of fault or causation as determinants of duty to recover the permanent preservation area.2. Impaired analysis of jurisprudential divergence appears, because the negatoria tracking feature the letter “a” of the constitutional permissive was based on recent and consolidated jurisprudence of this Court, applicable to the present case. 3. Indefiro the call for the immediate application of Law 12,651 / 12, notably the provisions of art. 15 regramento mentioned. Recently, this Class, by reported by Minister Herman Benjamin, confirmed the understanding that “the new Forest Code can not be retroactive to achieve the perfect juridical act, acquired environmental rights and res judicata, either to reduce such and without the necessary environmental compensation the protection level of fragile ecosystems and endangered species, to the point of breaking the untouchable and insurmountable constitutional limit of the ‘responsibility’ of the State to ensure the preservation and restoration of the essential ecological processes (art. 225, § 1, I ). ” Special appeal sentenced unfounded. ” (AgRg in TORT IN SPECIAL FEATURE In 327 687 – SP) Of the 13 decisions of the Courts of Justice handed down in the opposite direction to the implementation of the new law to agreements or sentences running, 10 are based on the previous STJ and two are prior to it. Therefore, there is strong evidence of forming a line of jurisprudence (see attached) to direction diametrically opposite to the provisions of Art.12 Federal decree 8235/14.
The analysis follows that, if applied by state agencies to review TACs rule, a major legal mess will be established at the expense of environmental quality. It is very unlikely that it will be maintained by the Judiciary, to the extent that there are widely dominant understanding to the contrary, including the Supreme Court. It serves only to divert efforts of forest restoration, which will be spent on useless legal clashes. Unfortunately, insecurity brought in a field that was already almost pacified.
You can modify TAC in the new code