MANAGEMENT ACT
4. THE INDONESIAN ENVIRONMENTAL MANAGEMENT ACT 1997
4.3. A Balanced Approach
building an adequate environmental legal framework is concerned. In this respect there is the challenging idea of one Environmental Code. However, at the moment there does not seem to be an overarching blueprint for an Environmental Code that could smoothly be adopted by developing countries like Indonesia. The idea of horizontal and vertical layers in environmental legislation is in this respect encouraging, and could inspire further improve- ments in Indonesian legislation. Indeed, building a national adequate environ- mental legislative framework is to be seen more as a process, rather than as a sole and unique activity. In this respect, a closer look has been given to some of the regulatory provisions included in the EMA – especially the ones that seem to be suited to integrative standard setting. It has been suggested that the main characteristics of these approaches should be regulated within the EMA.
In sum, the following directions of thoughts can be recommended.
In the long term one might think of building towards an Indonesian Environmental Code that would contain coherent, effective and efficient regu- latory provisions for the whole environmental field. It is recommended that there should be a research project to design in more detail how such a Code would look – also in relation to existing codes and regulations. The Code as such should not be the ultimate goal, but obviously the aim should be to choose regulatory methods, including related procedural, monitoring and enforcement provisions that best fit Indonesian financial and other capacities and culture. Maybe it will be concluded that (to some extent) specific acts and regulations need to stay on their own, and that – when necessary – in that case some harmonizing and coordinating provisions need to be established.
The ideal of the Environmental Code could be implemented, in a pragmatic way, in phases, by revising and expanding the existing EMA. It should be determined what topics would have first priority, and one might think in this respect of starting with a regulatory approach towards serious polluting activ- ities through permits, general rules, or a combination of these instruments. In general, the already existing provisions in the EMA are rather poorly described, so these should be enhanced by subsequent legislative projects. So, in the short and mid term, well-designed horizontal and vertical layers could be adopted.
One of the short-term goals would be to optimize the legislative provisions with respect to permitting. In this respect, it should be considered whether it is yet feasible to introduce an integrated permit scheme for serious polluting, non-homogeneous activities, or instead, to consider harmonizing and coordi- nating provisions between several permit schemes.72With respect to permit-
72 One of the practical but important legal questions to define what a ‘serious polluting activity’ might be.
ting, at least the characteristics as described in Section 3 should all be well drafted. In addition to the design of the substantive framework for the permit scheme, such as the scope of the permit scheme and the criteria for the deci- sion-making process, including the relationship towards environmental qual- ity standards and environmental management plans, it seems extremely important to address the question of procedural provisions as well. They help to make the administrative decision-making process transparent and open for control. Here one must think of access to environmental information, access to the decision-making process, and access to court for (at least) the people concerned. Those procedural provisions need to be applicable not only to the execution of the permitting competences, but also to the monitoring and enforcement competences.
For homogeneous polluting activities the instrument of general rules seems to be a reasonable option. When some fine-tuning of those general rules is considered to be necessary, some room for discretion then needs to be given to administrative decision-making for specific situations, and then of course attention should be paid to procedural provisions in order to control that administrative decision-making. It may even be the case that for certain pollut- ing activities a simple permit scheme would be considered an attractive alter- native to the general rules, as it is a more flexible approach. Such a simple permit scheme might even be combined with some general rules, or less bind- ing guidance notes, to be taken into account by the permitting bodies. In sum, it is clear that a careful examination needs to be done to see what regulatory instrument best fits specific categories of polluting activities.
It should be considered as well under what circumstances it would be attractive to introduce alternative regulatory approaches – knowing that the command and control options might be costly and not fully effective.
Therefore it needs to be examined whether alternative options like market- based instruments might indeed be introduced as part of the desirable instru- ment mix in a developing country like Indonesia.
However, none of these regulatory options would automatically have effect.
The real teeth of environmental regulatory provisions will depend on their appli- cation in practice. This is the biggest challenge in letting environmental law work. In this respect, in the short term a medium-oriented regulatory approach aiming at combating a serious problem via a rather classical command and control permit scheme might even be preferable. Much attention should anyway be paid to the question of whether and how established regulatory provisions are executed in practice, and what specific practical problems – like a lack of knowl- edge and financial resources – really hinder the satisfactory outcome of legisla- tive provisions. In the long term, however, the quality of the whole body of domestic Indonesian environmental legislation might be enhanced by a struc- tured, phased process, based on the idea of internal integration but taking into
account the optimal choice of instruments and the administrative structure, including the financial and other capacities of the administrative bodies.
REFERENCES
Anker, H.T. (2002), ‘Integrated Resource Management – Lessons for Europe?’, European Environmental Law Review, 199–209.
Bedner, A. (2003), ‘Introduction’, in A. Bedner and N. Niessen, Towards Integrated Environmental Law in Indonesia?, Leiden University, the Netherlands: CNWS Publications, CNWS Series 127, pp. 1–20.
Biezeveld, G.A. (2002), Duurzame milieuwetgeving, Den Haag: Boom Juridische Uitgevers.
Boeve, M.N., F.M. Fleurke and M.A Wiering (2004), ‘Het begrip “milieu” in de Wet Milieubeheer’,Tijdschrift voor Milieu en Recht, 221–6.
Christiansen, A.C. (2004), ‘The Role of Flexibility Mechanisms in EU Climate Strategy: Lessons Learned and Future Challenges?’, International Environmental Agreements: Politics, Law and Economics,4, 27–46.
Cleij, J. and E.N. Neuerburg (1988), AMvB’s op grond van artikel 2a van de Hinderwet, Vereniging voor Milieurecht 1988-1, Zwolle: Tjeenk Willink.
Deketelaere K., R.A.J. van Gestel, P.C. Gilhuis, M. Peeters and M. Hertoghs (2003), Integratie vergeleken: Buitenlandse milieuwetgeving als mogelijke inspiratie voor de verdere ontwikkeling van de Wet milieubeheer, rapport voor de Evaluatiecommissie Wet milieubeheer, Tilburg: Schoordijk Instituut.
Dhondt, N. (2003), Integration of Environmental Protection into other EC Policies.
Legal Theory and Practice, Groningen: Europa Law Publishing.
Drupsteen, T.G. (1990), ‘Twintig jaar milieuwetgeving: tijd voor bezinning’, Tijdschrift voor Milieu en Recht, Themanummer: De toekomst van de milieuwetgeving, 199.
Faure, M.G. (1995), Enforcement Issues for Environmental Legislation in Developing Countries, The United Nations University, INTECH (Institute for New Technologies), Working Paper No. 19.
Faure, M.G. (2000), ‘The Harmonization, Codification and Integration of Environmental Law: A Search for Definitions’, European Environmental Law Review, 174–82.
Faure, M.G. and J. Lefevre (1996), ‘The Draft Directive on Integrated Pollution Prevention and Control: an Economic Perspective’, European Environmental Law Review,112–22.
Freriks, A. and M. Peeters (1994), ‘De afstemmingsregeling inzake de Wm-vergunning en de Wvo-vergunning. Een twee-eenheid of van tweeën een?’, Tijdschrift voor Milieu en Recht, 194–204.
Guruswamy, L. (1991), ‘The Case for Integrated Pollution Control’, Law and Contemporary Problems, 54(4), 41–56.
Lewis, D. (2002), ‘Law and Globalization: An Opportunity for Europe and its Partners and their Legal Scholars’,European Public Law, 8(2), 219–303.
Michiels, F.C.M.A. (2002), ‘De toekomst van de Omgevingswet’, in M. Lurks, W. Den Ouden, J.E.M. Polak and A.E. Schilder (eds), De grootste gemene deler, Deventer:
Kluwer, pp. 307–20.
Niessen, N. (2003), ‘The Environmental Management Act of 1997: Comprehensive and Integrated?’, in A. Bedner and N. Niessen, Towards Integrated Environmental
Law in Indonesia?, Leiden University, The Netherlands: CNWS Publications, CNWS Series 127, pp. 66–79.
Ogus, A. (2004), ‘Corruption and Regulatory Structures’,Law and Policy, 26,229–46.
Otto, J.M. (2003), ‘Incoherence in Environmental Law and the Solutions of Co-ordi- nation, Harmonisation, and Integration’, in A. Bedner and N. Niessen, Towards Integrated Environmental Law in Indonesia?, Leiden University, The Netherlands:
CNWS Publications, CNWS Series 127, pp. 11–20.
Peeters, M. (2003a), ‘Emissions Trading as a New Dimension to European Environmental Law: The Political Agreement of the European Council on Greenhouse Gas Allowance Trading’, European Environmental Law Review, 12(3), 87.
Peeters, M. (2003b), ‘Legal Feasibility of Emissions Trading: Learning Points from Emissions Trading for Ozone-depleting Substances’, in M. Faure, J. Gupta and A.
Nentjes (eds), Climate Change and the Kyoto Protocol. The Role of Institutions and Instruments to Control Global Change, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, pp. 147–70.
Sands, P. (2003), Principles of International Environmental Law, Cambridge:
Cambridge University Press, second edition.
Tietenberg, T. (2002), ‘The Tradable Permits Approach to Protecting the Commons:
What Have We Learned?’, in E. Ostrom, T. Dietz, N. Dolsˇak, P.C. Stern, S. Stonich and E.U. Weber (eds), The Drama of the Commons, Washington, DC: National Academy Press, pp. 197–231.