Posts by Adivan Zanchet

Criminal Environmental Liability Is Expanding

Criminal liability for environmental offenses has become an increasingly frequent reality in the Brazilian rural sector. Farmers, entrepreneurs, managers, and technical professionals have been targeted in investigations and prosecutions based on Law No. 9.605/1998 (Environmental Crimes Law), whose sanctions include imprisonment, fines, shutdown of activities, and imposition of environmental remediation measures.

These criminal proceedings typically arise from administrative infractions, geospatial data cross-checking, field inspections, anonymous complaints, or direct actions by the Public Prosecutor’s Office. Given this scenario, legal defense must begin as early as the investigation stage, with a strategic, technical, and timely approach.

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What Are Environmental Crimes?

Environmental crimes are behaviors classified as criminal offenses under Law No. 9.605/1998 that harm or pose a risk to the environment. For conduct to be considered criminal, the following elements must be present:

• An unlawful act (either by action or omission);

• Authorship or co-authorship (involving natural or legal persons);

• Result or potential for environmental harm;

• Lack of proper authorization, license, or legal compliance.

Liability may affect both individuals (such as landowners, managers, or technicians) and legal entities, including the imposition of autonomous criminal sanctions on companies.

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Who Can Be Prosecuted?

Depending on the type of offense, the following parties may be investigated and charged:

• Farmers, squatters, or leaseholders;

• Business owners, managers, and legal representatives of ventures;

• Engineers, agronomists, and technicians responsible for licensed activities;

• Company shareholders, administrators, and board members;

• Legal entities, including cooperatives and associations.

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Main Environmental Crimes Faced in Rural Areas

The most common criminal offenses in rural and agro-industrial contexts include:

• Art. 38: Illegal deforestation or deforestation without valid authorization;

• Art. 38-A: Clearing of vegetation in Permanent Preservation Areas (APP) or Legal Reserves (RL) without proper regularization;

• Art. 54: Pollution due to improper use of pesticides or waste;

• Art. 29: Mistreatment of wildlife;

• Art. 41: Use of fire in rural areas without authorization or proper control;

• Art. 60: Starting or operating an activity without an environmental license;

• Art. 40: Unauthorized intervention in conservation units;

• Art. 68: Omission in adopting environmental damage prevention and control measures.

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Stages of the Environmental Criminal Process

The environmental criminal process follows several stages:

1. Police Investigation or Misdemeanor Report (TCO): Preliminary inquiry into the facts;

2. Public Prosecutor’s Inquiry: When there is no arrest in flagrante delicto, the Prosecutor’s Office may lead the investigation;

3. Filing of Criminal Charges: Based on collected evidence, the Public Prosecutor formally brings the case to court;

4. Summons of the Accused: The accused is called to present a defense;

5. Hearing for Evidence and Trial: Witness testimony and evidentiary proceedings;

6. Judgment: Acquittal or conviction with sentencing;

7. Appeals Stage: Opportunity for appeal, habeas corpus, or criminal review.

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Applicable Penalties

Penalties vary depending on the nature and severity of the crime:

• Imprisonment ranging from 6 months to 5 years (depending on the criminal classification);

• Court-imposed fines, which may be cumulative or independent;

• Community service or restriction of rights;

• Suspension or shutdown of economic activities;

• Mandate to repair the environmental damage;

• Sanctions applicable to legal entities, as provided by law.

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How to Structure an Effective Environmental Criminal Defense

A successful defense requires a technical approach from the start of the investigation, aiming to dismantle the prosecution’s arguments and demonstrate the absence of intent, negligence, or criminal significance. Common defense strategies include:

• Proving the defendant’s lack of direct responsibility;

• Presenting independent expert reports that challenge official technical findings;

• Demonstrating compliance with regulations or the existence of valid licenses;

• Showing the absence of actual environmental harm or risk;

• Challenging the admissibility of evidence obtained unlawfully or with procedural errors.

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Alternative Measures to Criminal Prosecution

Environmental criminal law provides mechanisms to avoid formal conviction under certain circumstances:

a) Conditional Suspension of the Criminal Process (Procedural Sursis)
Under Article 89 of Law No. 9.099/1995, applicable to crimes with a minimum penalty not exceeding one year. The defendant agrees to certain conditions—such as paying a fine or reporting periodically—and the process is closed after successful compliance.

b) Plea Bargain (Transação Penal)
An out-of-court agreement for offenses of lesser potential harm. The Prosecutor’s Office may offer terms involving community service, financial payments, or environmental obligations.

c) Non-Prosecution Agreement (ANPP)
Since 2019, suspects may confess the crime and agree to terms negotiated with the Prosecutor’s Office, thereby avoiding the filing of criminal charges and obtaining dismissal after fulfillment.

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Criminal Liability of Legal Entities

Companies may also be held criminally liable, independently of the liability of individuals, provided the unlawful act results from decisions or omissions by the company’s management or legal representatives. Possible criminal penalties include:

• Substantial fines;

• Activity suspension or prohibition;

• Ban on public contracts;

• Mandate to carry out environmental restoration;

• Publication of the criminal conviction.

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The Importance of Legal Assistance from the Outset

Environmental criminal defense requires technical involvement from the investigative phase, when legal strategy must be defined based on evidence, documents, and expert opinions. The attorney’s role should include:

• Accompanying police interrogations and field operations;

• Drafting a technical-legal response to the charges;

• Producing independent environmental assessments;

• Negotiating potential agreements with the Public Prosecutor;

• Representing the client at all stages of the proceedings, including strategic appeals and oral arguments.

Martins Zanchet Environmental Law Firm is dedicated exclusively to environmental criminal defense, providing legal assistance nationwide for companies and rural producers facing criminal proceedings for environmental infractions.

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Conclusion

Being charged with an environmental crime poses a serious threat to one’s freedom, assets, and the continuity of rural or business activities. Specialized legal representation—strategic, technical, and based on solid evidence—is essential to protect the rights of the accused and to prevent unjust convictions.

Neglecting a criminal case or relying on generic defense strategies can lead to harsh penalties and irreparable harm to reputation and operations. Prevention and prompt response are the cornerstones of effective environmental criminal defense.

Are you under investigation or criminal prosecution for an environmental offense?
Contact Martins Zanchet Environmental Law Firm and count on a team specialized in environmental criminal defense, with proven experience in protecting producers, business owners, and rural properties.