Predicting Indonesia’s Environmental Protection Direction: What to Expect After the Omnibus Law?

Omnibus Law on Job Creation (hereinafter referred to as “Omnibus Law”), which has been passed on the 5th​​ October 2020 has become biggest controversy these past months.​​ The law itself has been registered in the Governmental Gazette as per 2nd​​ November 2020, namely Law No. 11 year 2020 on Job Creation. However, critics on the​​ Omnibus Law, particularly regarding the formal law-making and its substances, still remains. The impact of this law to environmental protection becomes one of them, since the​​ academic paper​​ clearly​​ emphasizes​​ that the objective is to promote economic development and investments, without mentioning the importance of environmental protection.​​ Therefore, it has been drawn under the revision of Environmental Protection and Management Act (Law No. 32 Year 2009, hereinafter referred to as “EPMA”)​​ and few laws with regard to natural resources management​​ on the Omnibus Law. We have seen systematic weakening of environmental instruments. Although the efforts to weaken environmental protection instruments under the Omnibus Law is not seen as the first effort; while we note Governmental Regulation on Online Single Submission (Governmental Regulation No. 24 year 2018, hereinafter referred to as “GR OSS”) already did that. Thus, with this short brief, ICEL tries to identify the weakening of environmental protection instruments​​ as well as natural resources management​​ under the Omnibus Law and how it may affect our environmental protection efforts in the future.​​ 

 

  • Degradation of​​ the Public Participation under​​ Environmental Impact Assessment (EIA)​​ 

Indonesia’s EPMA already placed EIA in a strategic position – determinant in a​​ decision-making​​ process.​​ However, GR OSS stipulates that the Government (OSS institution) may issue permit based on commitment even before the EIA process has been done​​ [see: art 32 (2)​​ GR OSS]. After securing permit based on commitment, private parties shall complete EIA process within 30 days. Within these 30 days, GR OSS allows some activities to be carried out, including​​ land acquisition, changing the land area, procurement of equipment or facilities, provision of human resources, completion of certification or worthiness, implementation of production trials; as well as implementation of production (Art. 38 GR OSS).​​ It should be noted that some of the activities may already have impact to the environment, i.e. land acquisition and changing the land area. Therefore, this clause will surely compromise the essence of EIA, since the EIA does not longer serve as decision-maker​​ of environmental feasibility, and​​ only​​ be​​ positioned as​​ administrative document.​​ 

Further,​​ the Omnibus Law also set significant reduction of public engagement during EIA making and appraisal processes. Along these years, public engagement​​ is seen as an essential effort​​ during the process,​​ since the communities will become the affected party of the projects, and it becomes important to mitigate the impacts from the very early stage. However, the Omnibus Law limit the scope of ‘public’ that will be informed and consulted during the process to only directly-impacted community. It is also unclear who is directly-impacted community? How the Government could determine which community becomes directly-impacted and the rest are not. This unclear and more obscure provision might lead to potentially arbitrary measures during the scoping process.​​ 

Not to mention​​ that the Omnibus Law has putting aside environmental organizations and any party that influenced by all decisions in the EIA process from being informed and consulted.​​ In many cases, involvement of environmental organizations is not only as representative of nature but also to​​ empower communities in the EIA’s process. Hence, the​​ deletion of​​ environmental organizations​​ involvement​​ in​​ the​​ EIA​​ process​​ will​​ eliminate chance​​ for​​ public empowerment.​​ With this elimination, a basic question remains: who will take the environmental organizations’ role to empower the communities? Will the government will take over such role?​​ Also noting that the Omnibus Law​​ revoke​​ the community’s right to​​ submit objection on the EIA.​​ While​​ further guidelines on the environmental impact assessment will be stipulated by governmental regulations, it is still unclear whether it may bring back the strong public engagement mechanism under the Indonesia’s EPMA, since the implementing regulation shall be in line and may not contradicting its​​ mother law.​​ 

Not only in the drafting process, public scrutiny may also be deleted during the decision-making process, which is EIA appraisal process. The​​ Omnibus Law proposes the​​ deletion of EIA committee and replace it with Environmental Due Diligence​​ Team.​​ Under the 2009 EPMA, the committee shall include environmental government institutions (central or local based on their authority), academics / experts, representation from community that potentially impacted, as well as environmental organization.​​ However, under the Omnibus Law, the appraisal will be done by the​​ environmental due diligence team which form by the central government and​​ consist of governmental institutions, both central and local,​​ and​​ certified expert.​​ The deletion of EIA committee will surely eliminate public scrutiny. Also, this deletion shows that the community is not in an equal position with the government anymore during the decision-making process. Further, this new provision shows​​ that the​​ Central Government not only authorize to form this due diligence team, but also​​ will take part in every EIA appraisal process, even if the project under the local government authority.​​ It is unclear to what extent local government has control over projects under their authority. It is feared that this​​ will lead to bigger authority of central government over the local government. Not to mention the issue of who is central government? Would it be environmental institution, or other institutions will​​ also​​ have authority over EIA process? It also remains unclear as per now.​​ 

The important​​ notes​​ to close this part is​​ both​​ under​​ the Omnibus Law​​ and​​ GR​​ OSS, EIA​​ seems to​​ shift​​ into​​ a​​ research​​ document or administrative document. EIA​​ is seen​​ not​​ to​​ reflect the social-culture’s situation at the community​​ anymore. EIA will not​​ serve as a​​ prevention​​ instrument of environmental damage and/or pollution​​ as well. The elimination involvement of environmental organizations and reduction of public engagement (only to directly-impacted community)​​ become​​ the main reason why EIA has lost​​ its​​ meaning.

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  • The​​ Elimination​​ of the Environmental License​​ May Give Public Uncertainty on Access to Justice​​ 

One of the biggest concerns over Omnibus Law is the​​ elimination​​ of the environmental license.​​ Although the​​ Government of Indonesia​​ explains​​ that environmental license​​ will be​​ integrated​​ into the business license, the fact​​ shows that​​ all “environmental license” terminology has been deleted.​​ Compared to the 2009 EPMA, it is might seen to streamline the licensing process. While previously after completing EIA process, the Government will grant environmental feasibility decision, and such decision will be the basis for granting the environmental license. Meanwhile, under the Omnibus Law, the environmental feasibility decision itself will be deemed as​​ environmental approval – and the businessmen no longer required to secure environmental license. However, the issue lies in it is still unclear as per now whether the environmental feasibility decision or called by environmental approval will become an object for administrative court.​​ The EPMA 2009 cleared put environmental license as the object for administrative court. This article​​ aims​​ (previously at article 38) for granting community’s access to justice.​​ 

It should be noted that these past years, environmental license become an essential instrument for the community to correct any decisions that may lead to environmental destruction. Yet, historically, there were cases where the judges deliberated​​ environmental feasibility decision is not an object for administrative court. While in other cases, there also are cases that stated environmental​​ feasibility decision​​ is an object for administrative court. This means that the interpretation or whether environmental approval is an object for administrative court is widely open. Unfortunately, the article that clearly state that environmental​​ license could be canceled by the administrative court is deleted under the Omnibus Law (see: article 38). Thus, instead of giving legal certainty, the Omnibus Law put this debate in a grey-room and leave the uncertainty and interpretation remains. Where,​​ the existence of​​ clause becomes really essential, since it may affect public’s right on access to justice.​​ 

The​​ Omnibus Law​​ also​​ deletes article 40 of​​ 2009 EPMA that clearly stated: “in the case of environmental permit being revoked, the business and/or activity permit shall be nullified”.​​ Under this provision, we see that there are two control mechanisms towards the business and/or activities, firstly control held by the environmental institutions (using the environmental permit) and control by the institution who issue the business permit. However, the Omnibus Law mentioned that the business/activity permit becomes the object that could be nullified because of environmental considerations​​ that specified under the​​ amendment of article 37 of 2009 EPMA in Omnibus Law. With this new provision, we only see the control towards the business and/or activities only hold by the authority which issue the business permit – and so, there is no control from the environmental institution anymore. Also note that in implementation, we rarely see the measure taken by the government to revoke the business permit itself.

 

  • Reduction of​​ Guaranteed​​ Public Access to Information

Under the 2009 EPMA, access to information serves as essential tool to ensure the fulfillment of rights of good and healthy environment. Few clauses that related to this, for example the Ministry/Governor/Major or Regent shall announce every request and decision of environmental permit. Such announcement shall be conducted in any ways that is accessible by the public. However, the Omnibus Law deleted the announcement requirement upon permit application and only require the announcement done via electronic system and other measures determined by the Central Government. It should be noted that such deletion is not firstly recognized under the Omnibus Law. The GR OSS already mandated that, coupled with the shortening period of post-announcement comment submission opportunity, from 10 days to 5 days.​​ 

This relaxation means there is a reduction effort for public access to information. As mandated under General Comment​​ Human Rights Committee (CCPR/C/GC/23) paragraph 19, each state shall proactively put public information in the most accessible domain for public. The indicator of the fulfillment of rights to access for information shall be seen from to what extent such information understandable and accessible for public, and not on how the information has been announced. Unfortunately, the Omnibus Law do not guarantee this.​​ 

 

  • Weakening of Spatial Planning Instrument for Accommodating National Strategic Policies

Spatial planning also become an essential instrument to protect the environment. Even, spatial planning itself serves as a prevention of environmental pollution and degradation instrument under the 2009 EPMA. This becomes important as the law-makers of 2009 EPMA saw environmental pollution and degradation shall be mitigated even from the very upstream process, which is planning process. Therefore, integration of Strategic Environmental Assessment (hereinafter referred to as “SEA”) is a must during the spatial planning drafting and evaluation.​​ However, the strategic essence of spatial planning has been weakened under the Omnibus Law. Even more, this weakening effort aims to accommodate national strategic policies, in which what are national strategic policies itself remains unclear. Whether it is national strategic projects or any policies broader than that. Such weakening provision including:​​ 

  • Spatial planning is now can be revised at anytime for accommodating national strategic policies

Law No. 26 year 2007 on Spatial Plan (hereinafter referred to as “Spatial Plan Act”)​​ stipulated that spatial plans can only be reviewed and revised in a five-year cycle, with exception to if there is large-scale natural disaster and/or changes in administrative borders that may affect this state’s sovereignty. However, under the Omnibus Law,​​ this exception is added by changes in strategic national policies. Thus, the spatial plan is now can be revised at anytime for accommodating national strategic policies. With regards to this issue, the Omnibus Law’s academic paper clearly states that this provision is needed since previously spatial planning is one of many factors that hamper the implementation of national strategic policies (see: academic paper page 255). In this manner, we could expect that there is a weakening of spatial planning as a control instrument – since under the Omnibus Law spatial planning could be adjustable over national strategic policies

  • Spatial Planning can be overruled by changes in national strategic policies

The Omnibus Law added one article in the amendment of Spatial Plan Act, which stated that when there are changes in strategic national policies that are not inline with the spatial plans, such policies can still be implemented with a recommendation letter from the central government (see: article 34A in the amendment of Spatial Plan Act​​ under the Omnibus Law). This provision clearly means that spatial plan is no longer seen as the prevention instrument. Also, this provision is surely odd – since it clearly​​ acknowledges​​ that recommendation letter, which is a central government decision, can defeat a regulation, which also shows big discretion room hold by the central government with check and balances mechanism becomes unavailable.​​ It also shoes that even if the local governments already stipulate their local spatial plan (both provincial and city/regency level), the plan could also be adjustable due to the recommendation letter from the central government. This may lead or rise the inter-governmental conflict as well as give legal uncertainty.​​ 

 

  • Weaker Forest Protection​​ 

One of the crucial issues under the Omnibus Law is the weakening of forest protection provision. For example, the removal of 30% minimum forest area allocation in each water catchment area and major islands. Such provision previously being mandated under Law No. 41 year 1999 on Forestry (hereinafter referred to as Forestry Act), since under this act the Government shall determine and maintains the adequacy of forest area in order to optimize environmental benefits, social benefits, and economic benefits of local communities. However, under the Omnibus Law this minimum target is replaced by a more general terminology “Central government​​ determine the forest area that must be maintained the assessments of local bio-geophysical and geographical of water catchment area”. Again,​​ this clause gives greater room of discretion for the central government in determining the forest area without any check and balances mechanism. There is also no room for local government to involve in this determining process, while we note that few local governments already stipulate strong regulation for maintaining their forest area (i.e. Papua Province through Manokwari Declaration that pledged to maintain 70% of their protected areas). The check and balances mechanism during the determination process is really essential, since under the academic paper the deletion of this 30% minimum target aims to give ease for land procurement and national projects (see: page 118-119 of academic paper). Thus, it is important to oversee the process, to ensure that environmental and forest protection will not be weakened for the sake of development.

Check and balances mechanism also become a big issue under the amendment of forestry act in the Omnibus Law, since it deletes few House of Representative’s authority to approve few decisions. For example, under the forestry act should there will be large forest area conversion that might bring significant impact, the decision must be approved by the House of Representative. Also, should the government would like to grant lease and use forest license​​ (Izin Pinjam Pakai Kawasan Hutan – IPPKH)​​ that have strategic​​ impact, the decision must be approved by the House of Representative. However, under the Omnibus Law such decisions are no longer require house of representative approval and will fully become government discretion and be stipulated under the governmental regulation.​​ 

 

  • Conclusion

The above-mentioned discussion shows that we are facing a major setback in Indonesian environmental safeguards. The most fundamental issue lies in the Omnibus Law affects the fulfillment of every person’s right for good and healthy environment, with the weakening of guaranteed access to information, to participate, and even to justice.​​ Also, we note that this Law neglects​​ one of the emerging principles, called by: non-regression principle, that mandate: norms adopted by States cannot be altered to create reduced standards for environmental protection – the principle of rights of nature, and the principle of human rights to a clean and healthy environment. However, this brief does not yet cover all of the discussions regarding legal uncertainty caused by the Omnibus Law. This will be discussed under further series of analysis.​​ 

 

Raynaldo Sembiring: Executive Director (raynaldo.sembiring@icel.or.id)

Grita Anindarini: Deputy Director of Programs (anindagrita@icel.or.id)

 

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