Strict liability is one of the procedures of proving civil liability in environmental dispute, adopted by the judge to address environmental dispute, where the provision itself is stipulated under the Law No. 32 of 2009 regarding Environmental Protection and Management as amended by the Law No. 11 of 2020 regarding Job Creation (“Environmental Law”).
To implement the aforementioned civil liability, specifically in environmental dispute, Supreme Court issued a guideline through the Supreme Court Decision No. 36/KMA/SK/II/2013 year 2013 on the Enforcement of Environmental Issue Guideline (“KMA 36/2013”) for the judge in handling environmental dispute.
This article will discuss provision of strict liability under the Environmental Law, including its guideline under KMA 36/2013. Several important aspects that will be discussed in the article, namely (i) General Provision on Strict Liability, (ii) Strict Liability after the issuance of Job Creation Law.
(i) General Provision on Strict Liability
Environmental Law in its elucidation of Article 88 explains the strict liability as an element of fault that does not need to be proven by the plaintiff as the basis for payment of compensation1, where in this matter the element of fault is caused by the polluter in the environmental case. The compensation itself is imposed for the incurred damages made by any person whose action, business and/or activity using hazardous and toxic materials (“B3”), producing and/or managing B3 waste and/or causing serious threat to the environment without the need to prove that mistake.2
In relation to the serious threat, Environmental Law defines the “serious threat” as a threat having extensive impact on the environment and causing public unrest,3 although that definition is reaffirmed by the KMA 36/2013, which describes a serious threat as the occurrence of pollution and/or environmental damage of which impacts are potentially irreversible and/or affected environmental components are extensive, such as human health, surface water, underground water, soil, air, plants and animals.4
KMA 36/2013 explains that in terms of evidentiary of a strict liability, what needs to be proven is that environmental pollution and/or damage is caused by the defendant’s business and/or activities using B3 or generating and/or managing B3 waste or poses a serious threat towards the environment.5
The burden of proof in the application of strict liability is described under KMA 36/2013 as follows:6
- In this procedure, the plaintiff does not need to prove the existence of an element of fault. The defendant may be released from its liability if the loss or damage is caused by the actions of others;
- Burden of proof using the strict liability must be requested by the plaintiff and must be included in the plaintiff’s lawsuit;
- Strict liability is not a reversed burden of proof. The proof itself was not to prove the component of fault. Although every measure in accordance with the law and regulation to prevent pollution and/or environmental damage already taken, one must still be responsible.
- The Defendant may file a defense by proving that:
- Non-use, producing B3 and posing a serious threat is not proven;
- The damage or pollution is not caused by its activities but is caused by a third party or force majeure (based on literature and judicial practice in Common Law countries)
- Provisional decision request is in the form of a stipulation that the temporary suspension of activities can be immediately granted in the event that the defendant’s activities are managing B3 and/or B3 waste or there is a serious threat and imposed if it is immediately apparent that there is irreparable environmental damage. In the event of temporary suspension of activities, the collateral on security deposit from the defendant is not required.
- The Panel of Judges may add to the decision even though it is not explicitly requested by the plaintiff, with considerations for environmental protection and the interests of the community. This can be done on the basis of a subsidiary petition asking for a fair decision. Example: if the judge decides that the claim for compensation and “certain actions” is granted but the petitum does not specify how certain actions are carried out. (For example: clean up on the recovery of sea water pollution), then the decision should contain technical details on the implementation of certain actions, including who supervises, who implements it and other related technical matters.
- Precautionary Principle: even if there is no reason or sufficient evidence, it cannot prevent the judge from taking preventive measures against environmental damage. In proving environmental cases and in the absence of scientific evidence in determining the causal relationship between human activities and their effects on the environment, the court must apply the precautionary principle as a constitutional right to a healthy ecology. For example, the judge ordered the defendant to make efforts to protect the environment in the main decision of the case, even though it requires a higher cost than the initial plan of activity. The standard for implementing the precautionary principle is as follows:
- Threats to people or health such as nuclear power plant activities;
- The utilization of natural resources that does not consider the preservation of environmental functions for future generations, for example road construction activities crossing the protected areas or forests; or
- Carry out activities without considering (prejudice) the environmental rights of the party receiving the impact.
(ii) Strict Liability after the issuance of Job Creation Law as Amendment to the Environmental Law
Before the enactment of Job Creation Law, Strict Liability is regulated as follows:
“Every person whose action, business and/or activity using B3, producing and/or managing B3 waste and/or causing serious threat to the environment shall be strictly liable for the incurred losses without the need to prove that mistake”
After the issuance of Job Creation Law, the provision on strict liability is amended to be the following:
“Every person whose action, business and/or activity using B3, producing and/or managing B3 waste and/or causing serious threat to the environment shall be strictly liable for the incurred losses from their business and/or activities”.
Despite this revision, the article’s elucidation stays the same. It infers that the meaning of strict liability is not altered, namely the claimant in claiming for compensation by strict liability does not have to prove the element of “fault”.