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Implementation of Strict Liability in Environmental Dispute

By July 27, 2022 No Comments

Introduction

According to Article 88 Elucidation of Law No. 32 of 2009 concerning Environmental Protection and Management (“Environmental Law”), Strict Liability is an element of fault that does not need to be proven by the plaintiff as the basis for payment of compensation. The provision in this paragraph constitutes lex specialis in lawsuit on unlawful act in general.

To implement the Strict Liability, claimant will have to prove the fulfillment of the elements of Strict Liability by the defendant based on Article 88 of Environmental Law. In proving Strict Liability, one will refer to the Supreme Court Decree No. 36 of 2013 on Enforcement of Environmental Issue Guideline (“KMA 36/2013”). In terms of the implementation of Strict Liability towards environmental dispute, it can be seen through one of the environmental dispute cases, in which the Panel of Judges adjudicates the case by using Strict Liability as the basis for civil liability.

This article will discuss implementation of Strict liability under the Environmental Law, adopted by South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel (“Environmental Dispute”). Several important aspects that will be discussed in the article, namely (i) background of the environmental dispute, and (ii) implementation of strict liability in the environmental dispute.

I. Background of the Environmental Dispute

  1. The Defendant is PT WAJ as the holder of (i) Plantation Permit (IUP), (ii) Location Permit, (iii) SHGU No 1/ Serdang/2009, and (iv) SHGU No 1 /Kandis/ issued by oleh Regent of Ogan Komering Ilir.1

  2. Based on hotspot data from the MODIS Terra-aqua Satellite from NASA, hotspots have been detected in the palm oil plantation area belonging to the Defendant. Based on this information, Ministry of Environment and Forestry as the Plaintiff, formed a verification team to conduct field verification and found the fact that it was true that a fire occurred in the Defendant’s oil palm plantation area that occurred on peat land.2

  3. Based on that report, the Plaintiff then claims Defendant on the basis that environmental pollution was carried out by the Defendant by the occurrence of a wildfire that occurred on the oil palm plantation area which was under the management of the Defendant;3

  4. The Plaintiff in the lawsuit requests the Panel of Judges to declare this lawsuit using evidentiary with the principle of Strict Liability.4

  5. During the court examination, the judges conclude that the cause of fire derived from human actions,5 the Defendant argued that the wildfire that occurred was caused by the community around the area, who were carrying out fishing activities in the traditional way called Lebak Lebong, namely by burning, therefore causing wildfire in the Defendant area.6 In addition, the Defendant stated that due to the occurrence of extreme weather, causes the inability to extinguish the wildfire, and this, according to the Defendant, could be categorized as force majeure.7

  6. According to Plaintiff’s expert witness testimony, the occurrence of the wildfire, in addition to having an impact on peatlands, it also results in the emergence of extraordinary smoke that has an impact on people in the Sumatra area that causes respiratory diseases.8

II. Implementation of Strict Liability in the Environmental Dispute

There are several important points that the judges may refer to in deciding Environmental Dispute using the basis of liability with Strict Liability such as:

  1. Requirement of AMDAL related to Article 88 of Environmental Law

    Environmental Impact Analysis (“AMDAL”) is a study on important impacts of a planned business and/or activity in the environment, which is needed for making decision on the operation of business and/or activity.9 The Panel of Judges in the Environmental Dispute considered, in proving strict liability, apart from being determined by Article 88 of Environmental Law, that stipulated as:10

    “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 the said mistake”11

    It can also be determined through the AMDAL requirement for a business and/or activity,12 which in line with the AMDAL provision under Article 22 paragraph (1) of Environmental Law stated as:

    “Every business and/or activity having important impact on the environment must have AMDAL.”13

    Therefore, if AMDAL is required in a business and/or activity, it can be said that the business and/or activity has the risk of causing serious threats to the environment.14 According to the Panel of Judges in the Environmental Dispute, the phrase “important impact” in the Article 22 paragraph (1) of Environmental Law can be interpreted the same as the phrase “serious threat” in the element of Strict Liability under Article 88 of Environmental Law.15

    This was reaffirmed by the Panel of Judges who were of the opinion that based on KMA 36/2013, regarding “serious threats” it is defined as:

    “The occurrence of pollution and/or environmental damage whose impacts are potentially irreversible and/or environmental components that are affected very widely, such as human health, surface water, underground water, soil, air, plants and animals”.16

    Based on these considerations, the Panel of Judges considered that, due to the AMDAL obligation for the Defendant’s business, the business and/or activities carried out by the Defendant had fulfilled the element of “causing a serious threat to the environment” under Article 88 of Environmental Law.17

    The Panel of Judges is of the opinion, considering that the Defendant as the rightsholder to carry out business activities on the land, therefore, the Defendant has responsibility for any occurrences on the land under its management that leads to a serious threat to the environment.18 Moreover, the Panel of Judges argues, given that the fire that occurred on the Defendant’s area as a result of human actions not due to nature, therefore, the Defendant as the owner of the land must be responsible for the damage regardless of the occurrences happen due to the Defendant fault, but since the environmental damage create a serious threat to the survival of animals and plants and humans living around the burned land (Strict liability).19

    Dr. Prim Haryadi in the Environmental Dispute gave a response that, the Panel of Judges in this Environmental Dispute has interpreted according to its language the phrase “important impact” in the article can be interpreted the same as the phrase “serious threat” in the element of Strict Liability. This method of interpretation is called grammatical interpretation to find out the meaning of the provisions of the law by describing them according to language, word order, or sound. This interpretation goes a step further than simply reading the law.20

  2. The application of Strict Liability linked with the Precautionary Principle

    Under the Environmental Law, Precautionary Principle define as uncertainty about impact of a business and/or activity due to limited understanding of science and technology is not a reason for delaying measures to minimize or avoid threat against environmental pollution and/or damage.21

    Dr. Prim Haryadi explained that, the precautionary principle requires business actors to take early prevention, for example in the form of an analysis of environmental risks that may occur, even if the risk is small.22

    The Panel of Judges in the Environmental Dispute argues that, the Supreme Court in case No. 1794 K/Pdt/2004 which is better known as the “Mandalawangi” case, links Strict Liability with the Precautionary Principle, that explains in a situation where there is a lack of knowledge and contradiction, meanwhile the environment is already damaged, the Courts must adopt the Precautionary Principle.23

    Morever, the Panel of Judges explain that, in implementing the Precautionary Principle there are 3 (three) things that need to be considered:24

    • The threat of environmental damage is very serious and irreversible. Serious treatment is required in circumstances of consequences or implications for present and future generations, or in circumstances where there is no substitution of the resources used;

    • Uncertainty of scientific evidentiary, where consequences that will result from an activity cannot be estimated, due to its nature, causes, and potential impacts of the activity;

    • Efforts to prevent environmental damage include prevention method to cost effectiveness.

    Based on these considerations, the Panel of Judges concluded that the application of the Precautionary Principle implies that, if environmental damage has occurred, then the lack of knowledge cannot be used as an excuse to delay efforts to restore the damaged environment.25 Therefore, the Panel of Judges in their deliberations is of the opinion that, the Defendant must be responsible for the environmental damage that occurred on the Defendant’s area.26

  3. Evidentiary process of causality of Strict Liability with the basis of factual cause

    The Panel of Judges in the Environmental Dispute argue that, to apply the Strict Liability, it is necessary to have a causal relation between the fire that occurred in the Defendant’s area and the environmental losses.27 Therefore, in proving the causality, according to the Panel of Judges, the consequence is to examine by 2 (two) forms of causality, one of which was by factual cause.28

    The Panel of Judges argues, to prove the factual cause on the basis of Strict Liability is sufficient to prove by a simple factual cause. The purpose of proving factual causes is simply that the Court does not need to prove factual causes in a hypothetical or counterfactual manner. The question of what the Defendant should or should not have done becomes irrelevant in the context of Strict Liability, because those question is a question in the context of liability based on fault. Hence, with Strict Liability, proofing the factual causes is focused on a simple question: was the factual loss caused by the activities carried out by the Defendant?29

    Therefore, according to the Panel of Judges, to prove factual cause in the Environmental Dispute, is sufficient to do so by means of simple factual evidence. Therefore, it is sufficient to prove simple factual causes in this case by answering the question: was the loss in the form of land degradation caused factually by the business and/or activities carried out by the Defendant?30

    The Panel of Judges in proving the factual cause of the loss is based on 3 (three) evidences:31

    • The first evidence is the fact that land fires occurred within the Defendant’s concession. This shows that the fire occurred in an area that is the responsibility of the Defendant;

    • The second evidence is that the fires that occurred inside the Defendant’s concession had caused land degradation, both peat and mineral lands. This is evident from research conducted by Dr. Basuki Wasis, the wildfires that have occurred have damaged the peat structure;

    • The third evidence, which is no less important, is that the wildfires are an inherent risk in the business and/or activities of the Defendant.

Based on the 3 (three) evidences, the Panel of Judges considered that, on the basis of Strict Liability, what the Defendant had done to prevent a fire from occurring would be irrelevant. Therefore, the efforts and/or activities carried out by the Defendants are the factual causes of land degradation losses suffered by the Plaintiffs.32

The Panel of Judges in the Environmental Dispute decided the case by stating that, this lawsuit use evidentiary with the Strict Liability Principle, punishes the Defendant to pay compensation, and punishes the Defendant to take environmental restoration actions on the burned land.33

Irsandi Rahmat Wijaya

Sources

  1. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 294
  2. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 289
  3. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 287
  4. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 44
  5. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 291
  6. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 289
  7. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 290
  8. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 295
  9. Article 1 paragraph (11) of Environmental Law
  10. Article 88 of Environmental Law before amended by Job Creation Law
  11. In Indonesia Languange: Setiap orang yang tindakannya, usahanya, dan/atau kegiatannya menggunakan B3, menghasilkan dan/atau mengelola limbah B3, dan/atau yang menimbulkan ancaman serius terhadap lingkungan hidup bertanggung jawab
  12. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 293
  13. In Indonesia language: Setiap usaha dan/atau kegiatan yang berdampak penting terhadap lingkungan hidup wajib memiliki AMDAL
  14. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 293
  15. Ibid.
  16. In Indonesia language: Terjadinya pencemaran dan/atau kerusakan lingkungan hidup yang dampaknya berpotensi tidak dapat dipulihkan kembali dan/atau komponen-komponen lingkungan hidup yang terkena dampak sangat luas, seperti kesehatan manusia, air permukaan, air bawah tanah, tanah, udara, tumbuhan dan hewan
  17. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 294
  18. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 295.
  19. Ibid.
  20. Prim Haryadi, Penyelesaian Sengketa Lingkungan melalui Gugatan Perdata, Jakarta, 2022, Page. 200
  21. Elucidation of Article 2 paragraph (f) of Environmental Law
  22. Prim Haryadi, Penyelesaian Sengketa Lingkungan melalui Gugatan Perdata, Jakarta, 2022, Page. 35
  23. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 295.
  24. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 295.
  25. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 296
  26. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 296
  27. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 299
  28. Ibid.
  29. Ibid.
  30. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 301
  31. Ibid.
  32. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 301
  33. South Jakarta District Court Decision No. 456/Pdt.G.-LH/2016/PN.Jkt.Sel, page. 304