The administrative defence is written in twenty days. Its outcome, however, is usually determined in the first forty-eight hours after the notice is issued — while the company is still gathering information, the inspector is still on site, and apparently trivial decisions produce effects the defence will not be able to undo.
What is lost and does not come back
Evidence. The situation recorded by the inspector is dynamic: effluent stops, a slick disperses, an area is cleaned, equipment is replaced. If the company does not record for itself — with dated photographs, measurements, technical reports and witnesses — the actual state of affairs at the moment of the notice, all that remains is the version documented in the notice and the inspection report, which carry a presumption of legitimacy.
Environmental proceedings are, in practice, a contest between two bodies of evidence. A company that starts building its own only after receiving notice is already arguing at a disadvantage.
The presumption of legitimacy attached to an infraction notice is not insurmountable. It is, however, insurmountable without evidence contemporaneous with the facts.
Statements signed in the field
Statements, answers to questions and signatures on documents given during an inspection bind the company. Cooperating with inspectors is both a legal duty and the right posture; admitting a legal fact whose extent is not yet known is another matter. Briefing operating teams in advance on who speaks, what is recorded and what is referred to counsel prevents a defence that begins by contradicting a document the company itself signed.
Deadlines that run in parallel
An infraction notice rarely arrives alone. It usually comes with a stop-work order, a seizure order or a suspension of activity — each with immediate effect and its own challenge route. While the defence disputes the fine, the stop-work order may be halting the operation, and the route to overturn it is different, with different urgency.
An infraction notice is not a judgment. It is the beginning of an administrative process in which the company has the right to a full defence, to technical evidence and, frequently, to convert the fine into environmental improvement works. That outcome almost always depends on what was preserved in the first hours.
Zilto Bernardi Freitas
Nearly three decades in Environmental Law from both sides of the table: Superintendent of IBAMA in Rio de Janeiro, municipal Secretary of Environment and senior permitting adviser to Petrobras, Transpetro and Shell.
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