Matheus Borges Kauss Vellasco
The recent enactment of Law No. 15,299/2025 introduced an important amendment to the Environmental Crimes Law, Law No. 9,605/1998. Article 49, which provides for the punishment of anyone who damages ornamental plants, is one of the criminal provisions whose legitimacy is most questioned within Brazilian environmental criminal law, yet it has been regularly enforced. By adding Paragraph 2 to Article 49, the legislature restricted the scope of punishment in situations that affect relevant economic sectors, such as the electric power industry. Let us examine the new provision:
“Paragraph 2. No crime is committed by one who carries out the pruning or cutting of a tree when the competent environmental authority fails to provide a reasoned response, within a maximum period of 45 (forty five) days, to a request seeking authorization for cutting or pruning due to the possibility of an accident duly certified by a qualified company or professional, such intervention being deemed tacitly authorized upon the expiration of the aforementioned period.”
The amendment is welcome and has highly relevant practical implications. However, given the already recognized constitutional concerns surrounding Article 49, an expansive interpretation of the new Paragraph 2 is necessary in order to extend its scope to other situations in which the application of the main provision proves entirely inappropriate. This brief article addresses that issue: first, it examines the content of Article 49; next, it analyzes the practical effects of the legislative amendment; and finally, it proposes an interpretation that maximizes the containment of punitive power without undermining environmental protection.
Article 49 of Law No. 9,605/1998: Manifest Unconstitutionality
The Environmental Crimes Law already contains provisions capable of adequately protecting flora. The existence of a specific criminal offense aimed at “ornamental plants” is unnecessary for environmental protection and violates the ultima ratio principle of criminal law, revealing itself, at most, as redundant in relation to the crime of property damage under Article 163 of the Brazilian Penal Code. Evidence of this redundancy lies in the fact that Article 49 does not apply when an individual destroys his or her own ornamental plants, criminal liability arises only when the conduct occurs in a public place or on another person’s private property.
Moreover, the inclusion of a negligent modality leads to outrageous scenarios: would a group of friends playing soccer who accidentally kick the ball into a neighbor’s yard and unintentionally break the stem of an orchid be committing an environmental crime? Under the literal wording of the law, such an interpretation would be possible, although clearly incompatible with the fundamental principles of Criminal Law. Added to this are issues of disproportionate punishment, the main provision prescribes a penalty equivalent to that for minor bodily injury, for example, and the broader problem of the administrative overextension of criminal law.
The situation worsens further: the wording of the main provision allows for an accusatory thesis, in our view unfounded, yet still raised in criminal proceedings, that preventive pruning could be considered criminal. In other words, if a company performs maintenance to prevent tree growth from causing accidents, it may still face criminal charges. The logic of environmental legal protection is inverted: instead of protecting the environment, the criminal provision threatens those who act to prevent environmental harm.
Practical Impacts, What Changes for Companies?
Before analyzing the provision itself, it is essential to understand the reality of economic activities that deal daily with vegetation management. Infrastructure sectors, especially electric power distribution concessionaires, operate under constant environmental legal risk. The maintenance of easement areas and the pruning of trees that threaten power lines are regulatory obligations essential to ensuring operational safety, preventing service interruptions, and avoiding fires.
The construction industry and the property and condominium management sectors also frequently encounter tree specimens that may pose risks and cause accidents.
In many cases, administrative regulations require specific authorization for intervention in flora. Situations involving imminent risk thus create an uncomfortable dilemma for companies: either perform the cutting or pruning before authorization to eliminate or mitigate the risk, or wait for the environmental authority’s response while being aware of the possibility of an accident occurring in the meantime.
The introduction of Paragraph 2 is timely in this context. By authorizing intervention even in the absence of environmental authorization, it prioritizes preventive action instead of reinforcing the administrative expansion of criminal law so prevalent in Brazilian legislation. In such cases, it is evident that intervention in the network must occur within the limits necessary to ensure safety. Nevertheless, the shortcomings of Article 49 remain in scenarios not covered by the literal wording of Paragraph 2, requiring a deeper analysis to apply its rationale expansively.
Exclusion of Criminal Liability in Urgent Preventive Actions: The Relevance of an Expansive Interpretation
Paragraph 2 establishes a waiting period of 45 days. But what should be done when the risk is so severe that waiting for this period would be imprudent?
Examining the rationale of the legislative amendment and the justification of the new law, which prioritize accident prevention by dispensing with prior authorization for pruning in critical scenarios, it appears coherent to adopt an expansive interpretation to exclude criminal liability in cases of proven risk and danger in delay, even before the expiration of the 45 day period. This reasoning limits punitive power while promoting effective environmental protection.
Finally, one further issue remains open: Paragraph 2 requires that the environmental authority provide a “reasoned” response. By making this specification, it seems that the law equates the absence of a response with a superficial reply that is merely pro forma and not substantively valid. If this understanding prevails, criminal liability could also be excluded where, despite a timely response from the environmental authority, there is a lack of minimal justification.
Conclusion
Law No. 15,299/2025 is significant for certain strategic sectors and lends Article 49 of the Environmental Crimes Law a measure of rationality. By favoring preventive conduct over bureaucratic inertia, the legislature prioritizes environmental protection instead of reinforcing the administrative expansion of criminal law. It is now up to legal practitioners to adopt an interpretation that maximizes the gains brought by the legislative amendment. In our view, this can be achieved by extending its scope to scenarios in which the danger of delay in intervention is proven, even before the 45 day period provided by law or, in cases of extreme urgency, even without prior request for environmental authorization.