An environmental criminal investigation may begin with a single event and lead to several charges. Work carried out in an environmentally protected area, for example, may raise questions about damage to a conservation unit, interference with natural vegetation regeneration, construction on land where building is prohibited, and activities performed without the required environmental authorization.
The fact that several criminal provisions could theoretically apply does not mean they may all be charged at once. Each offense has its own elements, and some consequences of an environmental intervention may already be encompassed by the offense that describes the principal conduct.
This expansion of charges is often described as overcharging. Without importing the U.S. concept wholesale, the term is useful for situations in which the number or seriousness of the charges exceeds what the facts and evidence can support.
In environmental cases, the issue has direct procedural consequences. The legal classification determines the statutory penalty and, as a result, may affect jurisdiction, limitation periods, and the type of negotiated resolution available. Charges that later prove to be absorbed by another offense, legally inapplicable, or unsupported by the result required by the statute can keep a case out of the Special Criminal Courts, preclude a criminal settlement, and lead to a Non-Prosecution Agreement (ANPP) that would not be available under the correct classification.
A single environmental intervention does not necessarily amount to several offenses
Brazilian Environmental Crimes Law (Law No. 9,605/1998) contains offenses that may arise from the same factual setting. Article 40 punishes anyone who causes direct or indirect damage to a conservation unit. Article 48 covers preventing or hindering the natural regeneration of forests and other forms of vegetation. Article 64, in turn, applies to construction on land where building is prohibited, or in its surroundings, when carried out without authorization or in breach of an authorization already granted.
Because these offenses overlap factually, the first question is whether there are independent acts and results, or whether the different charges merely describe consequences of the same intervention.
Brazil’s Superior Court of Justice addressed this issue when considering the relationship between unlawful construction and interference with vegetation regeneration. Its Fifth Panel held that, when the interference results from the very existence of the building, Article 48 does not constitute a separate offense:
“Conduct falling under Article 48 of Law 9,605/1998 is merely an unpunishable post-offense consequence of building in an area where construction is prohibited.”
(STJ, Fifth Panel, Special Appeal No. 1,925,717/SC, Reporting Justice Ribeiro Dantas, decided May 25, 2021).
The reasoning is straightforward. If regeneration does not occur because the building physically occupies the space where vegetation could otherwise grow, the interference with regeneration is a consequence of the construction itself. Punishing both separately requires proof of some additional conduct or distinct harmful effect.
The Federal Regional Court of the 4th Region (TRF4) adopted the same approach in a case involving charges under Articles 40, 48, and 64 of Law No. 9,605/1998:
“The prevention of natural vegetation regeneration is merely an exhaustion of the offense, as it results from the natural use of the construction itself.”
(TRF4, Seventh Panel, Criminal Appeal No. 5021781-45.2018.4.04.7200/SC, Reporting Federal Judge Salise Monteiro Sanchotene, decided Dec. 15, 2020).
More recent decisions have maintained that approach. In a case involving construction on land where building was prohibited, the Seventh Panel stated:
“Under the principle of absorption, the offense of building on land where construction is prohibited (Article 64 of Law No. 9,605/1998) absorbs the offense of preventing natural regeneration (Article 48).”
(TRF4, Seventh Panel, Criminal Appeal No. 5026963-83.2025.4.04.7000/PR, Reporting Federal Judge Luiz Carlos Canalli, decided Sept. 1, 2026).
The Eighth Panel reached the same conclusion in another case:
“Reclassifying the conduct under Article 64 of Law No. 9,605/98 was correct, because that offense absorbs the charges under Articles 40 and 48 of the same statute.”
(TRF4, Eighth Panel, Criminal Appeal No. 5029052-16.2024.4.04.7000/PR, Reporting Federal Judge Marcelo Malucelli, decided Mar. 11, 2026).
These decisions show that multiple environmental effects do not, by themselves, justify multiple criminal charges. When the alleged damage or interference with regeneration forms part of the execution or exhaustion of an unlawful construction offense, the principle of absorption must be considered before each consequence is treated as a separate crime.
Article 40 requires proof of actual environmental damage
A related problem arises when the charge depends on a result that has not been proved.
Article 40 of Law No. 9,605/1998 criminalizes causing direct or indirect damage to a conservation unit. It is therefore a result-based offense. The irregularity of the work, its location in an environmentally sensitive area, or the abstract possibility of environmental impacts cannot substitute for proof of the damage required by the statute.
The TRF4 applied that distinction when it upheld the dismissal of charges alleging three violations of Article 40:
“The offense of damage to a Conservation Unit, set out in Article 40 of Law No. 9,605/98, is a result-based offense and requires proof of a naturalistic result, namely actual environmental damage, whether direct or indirect. The mere probability or presumption of damage is insufficient to establish the offense.”
(TRF4, Eighth Panel, Criminal Interlocutory Appeal No. 5073778-41.2025.4.04.7000/PR, Reporting Federal Judge Marcelo Malucelli, decided Apr. 8, 2026).
In the same decision, the court noted that the area’s prior human occupation prevented the mere fact of occupation from being treated as proof of the result required by Article 40:
“The offense of damage to a Conservation Unit (Article 40 of Law No. 9,605/98) requires proof of actual environmental damage; a mere presumption, or the inability to determine what vegetation was removed because of the area’s prior anthropization, is insufficient.”
(TRF4, Eighth Panel, Criminal Interlocutory Appeal No. 5073778-41.2025.4.04.7000/PR, Reporting Federal Judge Marcelo Malucelli, decided Apr. 8, 2026).
The Seventh Panel also rejected an Article 40 charge in a case where the construction significantly exceeded the authorized area. The construction violation was established, but the charge of damage to a conservation unit did not survive:
“The expert report did not establish direct or indirect damage to a conservation unit (Article 40 of Law No. 9,605/1998).”
(TRF4, Seventh Panel, Criminal Appeal No. 5026963-83.2025.4.04.7000/PR, Reporting Federal Judge Luiz Carlos Canalli, decided Sept. 1, 2026).
The distinction matters because an unlawful construction and environmental damage are different legal concepts. The former may support administrative liability or a different criminal classification, but it does not automatically prove the result required by Article 40.
Legal classification determines the procedural framework
Correct legal classification affects more than the statutory penalty. It also determines the procedure that applies.
Articles 48 and 64 of Law No. 9,605/1998 carry a custodial sentence of six months to one year, in addition to a fine. They therefore qualify under Brazilian law as offenses of lesser potential harm and fall within the Special Criminal Courts system.
For environmental offenses, Article 27 of Law No. 9,605/1998 expressly regulates the criminal settlement mechanism known as transação penal, generally conditioning it on prior remediation of the environmental damage unless remediation is demonstrably impossible.
That matters when an investigation begins with more serious charges that do not survive scrutiny of the evidence. If the remaining conduct falls under Articles 48 or 64, narrowing the charge also changes which negotiated mechanism is legally available.
That is what occurred, for example, in the proceedings later decided in Criminal Appeal No. 5029052-16.2024.4.04.7000/PR. Once the conduct was reclassified under Article 64, the matter was referred for consideration of a criminal settlement. In confirming the reclassification, the court stated:
“Reclassifying the conduct under Article 64 of Law No. 9,605/98 was correct.”
(TRF4, Eighth Panel, Criminal Appeal No. 5029052-16.2024.4.04.7000/PR, Reporting Federal Judge Marcelo Malucelli, decided Mar. 11, 2026).
In this setting, the legal classification must be settled before the appropriate agreement can be selected.
A criminal settlement precludes an ANPP
Article 28-A of Brazil’s Code of Criminal Procedure establishes two relevant conditions. A Non-Prosecution Agreement (ANPP) presupposes that dismissal is not warranted, and it is unavailable when a criminal settlement before the Special Criminal Courts is legally possible.
Article 28-A(2)(I) does not create a choice between two available agreements. If a criminal settlement is available, an ANPP is excluded. Where the only remaining classification is under Article 48 or 64, both of which carry a maximum sentence of one year, the case falls within the rules for offenses of lesser potential harm and must be assessed under the criminal settlement framework.
An ANPP proposal therefore does not eliminate the need to examine whether the conduct is criminal and whether it has been correctly classified. Those questions logically come first.
This is particularly important because an ANPP requires a formal and detailed confession to the criminal offense. If the investigation has not established a required result, or if one charge is absorbed by another, the negotiation should not be used to lock in a legal classification that still requires review.
The issue is clearest when the technical evidence contradicts part of what the proposed confession would cover. In one of the situations examined, the expert report answered negatively when asked whether vegetation had been destroyed or damaged, while the proposed agreement still included charges based precisely on the destruction of vegetation.
Questions of dismissal, criminality, absorption, and legal classification should therefore be resolved before the conditions of an ANPP are negotiated.
Legal classification may also change the limitation analysis
The statutory penalty provides the reference point for determining the criminal limitation period. Removing more serious charges or reclassifying the conduct under a less serious offense may therefore change the limitation analysis.
This is not merely theoretical. In one of the proceedings discussed in the underlying submissions, after certain conduct was reclassified under Article 64 of Law No. 9,605/1998, the Federal Prosecution Service itself requested recognition that some charges were time-barred and offered a criminal settlement for the remaining conduct.
The example shows how an issue that may appear confined to substantive classification can affect the entire procedural path. The same factual allegation, once legally reclassified, may move from ordinary criminal proceedings and an ANPP framework to a case involving a limitation bar or Special Criminal Court jurisdiction with the possibility of a criminal settlement.
That is why overcharging deserves particular attention in environmental criminal cases. Maintaining charges that lack independent legal significance or evidentiary support can produce procedural effects long before their defects are recognized at the end of the case.
The correct legal classification must come before the agreement
The range of offenses in Law No. 9,605/1998 requires courts and prosecutors to distinguish between situations that may arise from the same setting: unlawful construction, damage to a conservation unit, destruction of vegetation, and interference with natural regeneration.
The case law discussed above identifies two recurring problems. The first is charging separately consequences that are part of, or merely exhaust, the act of building. The second is charging a result-based offense without proof of the result required by the statute.
Once those charges are removed, the applicable penalty, limitation period, jurisdiction, and negotiated resolution may all change. An ANPP proposal therefore does not make the classification issue secondary. Classification must come first, because it determines whether any criminal offense remains and which procedural framework applies.
