After the approval of Bill No. 116 of 2022 House and 251 of 2024 Senate, the Congress of the Republic issued Law 2387 of July 25, 2024, which modifies the environmental administrative investigation regime is modified. Here are some of the most relevant aspects of this new regulation that could impact your organization:
The Law introduces definitions for terms such as "Environmental Damage", understood as the partial or total deterioration, alteration or destruction of the environment, "Compensation Measures" and "Corrective Measures". These definitions provide a clear interpretative structure and facilitate the application of the regulations. However, such definitions will be regulated by the Ministry of Environment and Sustainable Development (hereinafter "MADS").
Additionally, the stage of closing arguments has been included in the environmental administrative investigation process, as established in Article 48 of Law 1437 of 2011. This stage was previously granted by some regional environmental authorities, but it was not standardized as a stage of the procedure at the national level. At this stage, the investigated party can present final arguments, reiterate the arguments of its technical defense and refer to the results of the evidence practiced during the process before a final decision is issued. It is important to specify that this stage will only proceed if the evidence has been taken during the evidentiary period.
A relevant new element included in the new Law is the possibility of suspension and early termination of the environmental administrative investigation process. This provision allows the environmental administrative investigation process to be suspended and eventually terminated if the infringer presents and executes corrective measures and/or compensation for the environmental damage caused. The alleged infringers must guarantee compliance with the proposed measures by means of the constitution of guarantees in benefit of the competent environmental authority, covering both the obligations and the costs of the measures to be implemented. The suspension may last up to two years, extendable for half of this initial period and during this time the terms of expiration of the procedure will not be counted. It is essential to highlight that the benefit of suspension and termination of the environmental administrative investigation process will not apply to infringers who have used this mechanism in the past five years. It is crucial to differentiate this suspension from the cessation of the environmental administrative investigation process, because while the suspension implies the active correction of the infractions that caused environmental damage, the cessation only applies under the causes established in Article 9 of Law 1333.
The new Law also introduces incentives for confession. If an infringer confesses before the environmental administrative investigation process. begins, he may benefit from a 30% reduction in the amount of the fine. If the confession occurs before the formulation of the charges, the reduction will be 15%. This provision aims to promote collaboration during the environmental administrative investigation process, expanding the benefits for those who admit their infringement at different stages of the procedure. This change represents a significant advance compared to the previous regulation, which only established the reduction of a percentage of the fine for confessions made before the beginning of the environmental administrative investigation process.
Additionally, the amendment establishes that in the event of liquidation, reorganization, or insolvency of a legal entity, the legal counsel or liquidator must inform the environmental authority immediately and provide guarantees to ensure the payment of the obligations arising from the environmental administrative investigation.
The process of notification of the formulation of charges has been modified removing the notification by edicts and simplifying it to personal notification and/or by notice. In addition, the statement of charges is required to specify explicitly any environmental risks or impacts and detail the types of potential aggravating factors.
Another aspect to be highlighted in the modification of Law 1333 of 2009 is the increase of the liability and the considerable amount of pecuniary fines. The new law establishes that the fines will be up to 100,000 minimum legal monthly salaries in force (hereinafter "SMMLV"). This represents an increase of 95,000 SMMLV from the current amount (5,000 SMMLV), which certainly constitutes a considerable change in the regulation, so it will be necessary for the alleged infringers to reevaluate the amounts provisioned to cover eventual fines.
The amendment to the Law also establishes that the environmental administrative investigation process may not be extended for more than five years, although it may be extended for an equal term in cases of high complexity. With respect to ongoing investigations that have been in progress for more than fifteen years, the law establishes that the environmental authorities must formulate a plan for reducing congestion in order to resolve these cases within a maximum period of three years.
The new regulation will become in force as of its enactment, repealing all contrary provisions. These modifications may have direct effects on the ongoing environmental administrative investigations, so it is essential from a corporate environmental point of view to adjust strategically to this new regulation, in order to reinforce the preventive approach in organizations and mitigate the initiation of new environmental administrative investigations.
If you have any questions regarding the modifications and new aspects of the regulation, its impact on your organization or require assistance for its implementation, please do not hesitate to contact the Environment and Sustainable Business team.