MANAGEMENT ACT
4. THE INDONESIAN ENVIRONMENTAL MANAGEMENT ACT 1997
4.2. The EMA as a Basis for Integrated Regulatory Interventions The EMA 1997 emphasizes the need to implement sustainable development
In this respect it also recognizes that an integrated approach is needed. For instance, environmental management is defined as: ‘An integrated effort to reserve environmental functions which covers planning policy, exploitation, development, maintenance, reparation, supervisions and control of the envi- ronment’.66
65 To be compared with the report of the EAP Task Force (Task Force for the Implementation of the Environmental Action Plan for Eastern Europe, established at the 1993 Ministerial Conference ‘Environment for Europe’) (2003), Review of Environmental Permitting Systems in Eastern Europe, Caucasus and Central Asia, final report, April 2003, p. 72: most practical way is a gradual adjustment of existing systems over a longer period.
66 EMA 1997, Art. 1(2).
In general, the term ‘integration’ should be concretized with additional clar- ifications. Integration could mean external integration, internal integration, or even both. Subsequently, both the concepts of external and internal integration are rather vague, and different options exist to implement these concepts in practice. In other words, whether or not integration will be realized depends on the existence of instruments intended to implement these goals.
As a central environmental management act, and given the integrated effort to protect environmental functions, it would be logical for the EMA 1997 to contain the main regulatory instruments that would concretize the important but still vague concept of environmental management. As in most countries, command and control interventions are the main type of regulation; one might expect the EMA to include such options. However, the Environmental Management Act 1997 does not contain a clear and precisely defined frame- work for permit schemes and general rules, explicitly providing a coherent approach. There are indeed some basic references to permits and general rules, but unfortunately the EMA fails to regulate the main characteristics of these regulatory interventions. This will be illustrated below shortly.
4.2.1. Licensing
Chapter VI, part I, of the EMA, entitled ‘Licensing’ does not provide a well- designed permit scheme aiming at an integrated approach. It is not sufficiently clear which permit schemes (with what scope) actually exist, and how they relate to each other. There are some promising starting points included in the chapter, but the text as it stands is poorly drafted. It only consists of four arti- cles, of which the first three will be commented on briefly below. The fourth, Article 21, does not focus on licensing, but rules that every person is prohib- ited from importing hazardous and toxic waste.
At first glance, one can see that a rather integrated approach is chosen, as Article 18 prescribes that ‘Every business and/or activity which gives rise to a large and important impact on the environment must possess an environmen- tal impact analysis to obtain the license to conduct a business and/or activity’.
It is not clear which permit is being referred to, and what its legal base is.
Moreover, it is not clear what role the EIA should play in issuing the licence.
Article 18 indeed requires an environmental impact assessment as a condition for obtaining ‘the license to conduct a business and/or activity’. It does not spell out what level of environmental protection should be given, taking into account the results of an EIA. It only says that in the licence to conduct a busi- ness and/or activity, conditions and obligations to carry out environmental impact efforts need to be included. It is exactly this topic, the scope of envi- ronmental protection, and the criteria for decision-making, that should be well defined.
Article 19 gives some procedural provisions for the ‘license to carry out a
business and/or activity’. Here the wording is rather poor and vague as well, which means that no clear idea can be formed about the precise scope and meaning of the procedural provisions. For instance, it is prescribed that in issuing a licence it is compulsory to take into account ‘public opinion’. This main obligation is not supported by additional rules explaining how the administrative bodies should facilitate the public in expressing their opinion.
A more elaborated procedure is missing here. It is to be noted that these proce- dural provisions might (to some extent) be part of other legislation (like an Administrative Code), but then it might be assumed that the Environmental Management Act would have made references to those provisions.
It seems to be the case that within Article 18 of the EMA the environmen- tal impact analysis has been prescribed for (already) existing licences. In this respect, one could argue that an instrument of external integration has been introduced. The question is, however, whether a specific environmental permit should be established as well. At the moment, for instance, it is not clear how (and where) the characteristics of environmental protection through permitting are established. Moreover, Article 18 does not give any direction on how the environmental impact analysis should play a determining role in accepting or refusing the application for a permit. Article 19 gives some directions on the (procedural and) substantive aspects that need to be taken into account in issu- ing ‘a license to carry out a business and/or activity’, but this substantive framework is very poor. For instance, an economic-technical criterion is lack- ing here.
One would expect that an Environmental Management Act would provide for an integrated permit scheme, or alternatively, would provide for the coor- dination of several environmental permit schemes. Article 20 is in this respect an interesting point of consideration. It installs a specific licence concerning the disposal of waste in any environmental medium. Waste disposal may only be carried out at a disposal site that is determined by the Minister.67Article 1(16) EMA gives the following definition of waste:
Waste is the residue of a business and/or activity.
This is a broad definition that supports a rather wide scope of a waste permit scheme. The elucidation on the EMA indeed seems to encourage a wide inter- pretation of the permit scheme:
In principle disposal of waste to an environmental medium is prohibited. . . .
67 The adjustment of the EMA to the RGA will be discussed in Chapter 7 of this volume.
This sentence is continued with:
. . . with the exception of certain environmental media which have been allocated by the Government.
Here the reader gets somehow confused, as it is not exactly clear what the real scope and meaning of the permit system is. Is it indeed also meant to apply to air pollution emissions? What does ‘media that have been allocated’ mean exactly? In other words, does Article 20 really intend to establish an integrated waste permit scheme, wherein all the emissions of all kind of residues are to be assessed? In principle, the article can be interpreted as meaning that an integrative approach is indeed to be taken in issuing this waste permit.
However, here also the EMA is poorly designed, as it is not made sufficiently clear to what extent environmental protection should be given, what the economic-technical criterion is, what the relationship is with emissions qual- ity standards, which procedure should be followed, and what kind of specific permit conditions might be included into the permit. Moreover, in practice, separate environmental licences still exist, based on separate secondary acts.
It has not been made clear how the permit scheme of Article 20 relates to the licence to conduct a business and/or activity to which Article 18 refers. And one can also wonder why the duty to take account of public opinion has only been prescribed for the licence to carry out a business and/or activity, and not for the waste licence as established in Article 20.
Article 20 can be seen as a starting point for the further development of an integrated permit scheme. Such a scheme should not be restricted to ‘waste’
problems. It should be considered whether it would also include energy effi- ciency, the use of raw materials, noise, smell, and so on. In sum, it is a basic starting point for the further development of an integrated (or coordinated) permit scheme. However, the provisions in the EMA are poorly drafted, and need to be improved. In this process, there needs to be fundamental consider- ation about what kind of integrated or coordinated permit scheme should be established. In addition, it should be carefully considered to what governmen- tal scale this competence should be attributed. In improving the section on licensing, the legislator should be aware of the characteristics that need to be made clear in the primary legislation.
4.2.2. General rules
Chapter VI of the EMA, entitled Environmental Compliance Requirements, addresses only the regulatory intervention known as licensing, but does not facilitate the adoption of general rules as discussed in Section 3. However, a kind of general standard setting can be found in Article 14, which rules:
1. To guarantee the preservation of environmental functions, every business and/or activity is prohibited from breaching quality standards and standard criteria of environmental damage.
2. Stipulations on environmental quality standards, prevention of and coping with pollution and restoration of its carrying capacity are regulated by Government Regulation.
3. Stipulations on standard criteria of environmental damage, prevention and coping with damage along with restoration of its supportive capacity are regu- lated by Government Regulation.
According to Article 1 (13) EMA, ‘standard environmental damage criteria’
are threshold limits of physical and/or biological changes in the environment which can be measured. This kind of general standard setting differs from the type of general rules as described in Section 3 that aim at integrated standard setting in relation to homogeneous activities. Article 14 starts from an effect- oriented approach, from which standards will be adopted in order to protect environmental functions.68 Business and/or activities are prohibited from breaching the quality standards and the (effect-oriented) standard criteria of environmental damage. The fundamental question with an effect-oriented approach is how the established ‘room for pollution’ can be divided among the possible polluters. Normally the effect-oriented approach is therefore trans- lated into a permit scheme. The possible relationship between on the one hand quality standards and on the other hand permit schemes is, however, not explained in the EMA 1997.
Surprisingly, Article 14 (2) is in practice obviously interpreted as a base for establishing permit schemes in secondary legislation. For instance, Government Regulation No. 82 of 2001 concerning water quality management and water pollution control (based on Article 14(2)) establishes several permit schemes (which might even include an emissions trading scheme).69 This construction of problem-specific permit schemes in secondary legislation contributes to the fragmented character of the legislative framework. Also the transparency of the EMA is troubled by this construction, as Chapter VI contains a part called ‘licensing’ but surprisingly, the basis for licensing is found in provisions included in Chapter V: Preservation of environmental functions.
68 For instance, Government Regulation No. 82 of 2001 concerning water qual- ity management and water pollution control establishes provisions as meant in Art.
14(2) EM (stipulations on environmental quality standards, prevention of and coping with pollution and restoration of its carrying capacity).
69 Art. 35 (‘Every business and/or activity that intends to use wastewater for land application is required to obtain permission in writing from the Regent/Major’);
Art. 40 (‘Every business and activity intending to dispose of wastewater in water or water sources is required to obtain permission in writing from the Regent/Major’).