Invited to sign a consent decree (in Brazil, a Termo de Ajustamento de Conduta or TAC), companies usually weigh the proposal from the wrong angle: comparing the cost of the obligations offered with the cost of a possible judgment. The relevant comparison is different. Under art. 5, § 6 of Federal Law 7.347/1985, a consent decree is directly enforceable out of court. By signing it, the company does not close a dispute — it converts every obligation assumed into a liquid, certain and immediately enforceable debt, with no trial phase required.
First question: can the operation actually deliver it?
Not the legal department, and not the consultant: the operation, within the agreed deadline and the approved budget. An ambitiously drafted obligation, unvalidated by those who must perform it, produces a breach whose consequence is not renewed negotiation but direct enforcement of the daily penalty, with attachment of assets.
Good practice is to submit the draft to operations, environment and planning before making any submission to the prosecutor, and to respond in writing with a technically grounded counter-proposal whenever the schedule is unworkable. A reasoned counter-proposal is well received; silent non-compliance never is.
What is negotiated in a consent decree is not fault — it is deliverability. And deliverability is assessed on the plant floor, not in the meeting room.
Second question: how far does the release extend?
A decree that does not precisely delimit the facts covered, the period and the spheres of liability may settle the civil investigation and leave the criminal, administrative or third-party claims open. Equally important is to check whether the same facts are already the subject of an infraction notice: signing without expressly addressing the administrative penalty can mean paying twice for the same event.
Third question: is there a solid case on the merits?
There are situations in which resisting is the right decision — weak causation, third-party responsibility, a licence duly obtained and complied with, damage not technically demonstrated. In those cases a settlement crystallises an obligation that a full hearing would probably set aside. Resisting, however, requires documented technical conviction and institutional willingness to sustain it for years, not mere discomfort with the amount proposed.
A good consent decree ends the dispute and is fully performed. A bad one merely turns a legal controversy into a certain debt — and transfers to the operation the burden of an agreement it was never consulted about.
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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