Environmental Disputes Without Protection Of Strict Liability Principles: Again, Law On Job Creation

The 1945 Constitution of the Republic of Indonesia in Article 28 H paragraph 1 states that a good and healthy environment is a human right and a constitutional right for every Indonesian citizen. The form of environmental protection is then accommodated, one of which is Article 88 of Law Number 32 of 2009 concerning Environmental Protection and Management (UU PPLH) through the Strict Liability principle or what is called absolute liability for every party who pollutes and destroys the environment caused by Hazardous and Toxic Materials (B3) and waste of Hazardous and Toxic Materials without the need to prove of the element of fault first. However, after the enactment of Law Number 11 of 2020 concerning Job Creation, absolute liability for perpetrators of environmental destruction was lost because the phrase “without the need to prove of an element of fault” was abolished so that accountability was based on mistakes ( liability based on fault ). The purpose of this study is to determine the impact of eliminating the principle of strict liability in the settlement of environmental disputes in Indonesia. The research method used is normative legal research using statutory, conceptual, and case approaches. Based on the results of the study, it shows that the abolition of strict liability in the Environmental Protection and Management Law will burden victims in environmental disputes, especially ordinary people, to ask for accountability because of the complexity of proving the element of error in industrial activities that use high technology and are related to Hazardous and Toxic Materials ( ultrahazardous activity dan abnormally dangerous ).


INTRODUCTION
If you look at the preamble to the 1945 Constitution of the Republic of Indonesia, it is clearly stated in the fourth paragraph that the purpose of the state is to protect the entire Indonesian nation and the entire homeland of Indonesia and to promote the general welfare.
The formulation aims as a guide and guiding star in carrying out state life based on Pancasila as the legal ideals of the Indonesian nation (rechtsidee) (Aziz 2019).One form of protection for the entire Indonesian nation which later received special attention is the protection of the environment.The actualization of the realization of sustainable environmental protection (environment oriented law) in Indonesia in an expressive verbis manner has been stated in the 1945 Constitution of the Republic of Indonesia and legislation as a form of guaranteeing legal certainty regarding the legitimacy of the seriousness of the legislators (Rianda 2020).This seriousness can be seen from the accommodation of a special article that accommodates and recognizes the right to a good and healthy environment, namely human rights and constitutional rights, so that their existence must be protected in order to realize the greatest prosperity and welfare for the people of Indonesia.In the 1945 Constitution of the Republic of Indonesia in CHAPTER XA concerning Human Rights Article 28 H paragraph (1) which reads "everyone has the right to live in physical and spiritual prosperity, to live, and to have a good and healthy living environment and the right to health services".The existence of articles that support sustainability in the constitution is expected to be able to realize all policies made by the government to support environmental sustainability (Feriandi 2018).
However, the problem of environmental management and preservation is a challenge that is being faced by all nations today.The decline in the quality and use of the environment and the natural resources in it is an implication of the implementation of development which in the process does not see future impacts on the environment (Mina 2016).This has caused damage to the environment and natural resources in the vicinity.The environmental crisis that has occurred in recent decades also shows the failure of law enforcement in cases of environmental pollution ( Sutoyo 2013).
Damage to the environment will always affect human life because we depend on nature to live, so nature must always be maintained, cared for and preserved in order to create an ecological balance.Internationally, the central position of the importance of the balance between humans and the environment is stated in the preamble of The Rio Declaration on Environment and Development in 1992 (Pasapan 2020).The destruction of nature by human actions and carelessness is evidence of shallow thinking because damage to nature is something that consciously or not will be passed on to future generations.
Actions taken by humans have harmed themselves and have a wide impact that causes environmental damage such as water pollution, air pollution, soil pollution, and various other damages that affect the quality of the environment.Environmental impact control is an effort to carry out supervisory actions on an activity carried out by each party, both individuals and corporations that have a broad impact on the environment.All things that affect environmental changes as a result of human activities or activities can be interpreted as environmental impacts.
The government has an obligation as a policy maker to realize sustainable development without neglecting its duties to protect and manage the environment that is used by the Indonesian people as a source of livelihood.
In order to guarantee and ensure the fulfillment of the community's right to a good and healthy environment as well as to ensure legal certainty, the government issued a legal product in the form of Law Number 32 of 2009 concerning Environmental Protection and Management.
Environmental protection and management based on Article 1 paragraph (2) of the Environmental Protection and Management Law is a systematic and integrated effort carried out to preserve environmental functions and prevent environmental pollution and/or damage which includes planning, utilization, control, maintenance, supervision, and law enforcement (Herlina 2017).
The conception of law enforcement in the field of environmental law as regulated in the Environmental Protection and Management Law, especially regarding environmental disputes, which are disputes caused by actions that exist or are suspected of having an impact on environmental pollution.The Environmental Protection and Management Law in article (1) number 25 reads "environmental disputes are disputes between two or more parties arising from activities that have the potential and/or have an impact on the environment".It can be seen from the formulation that the subject of the dispute is the perpetrator and the victim of the environmental impact, while the object of the dispute is the activity or impact that has the potential to affect the environment (Akib 2014).The government's action to remove the phrase "without the need to prove the element of fault" has raised questions and criticism from various levels of society.The purpose of accelerating investment has obscured the legal ideals of the Environmental Protection and Management Law which aims to provide protection to the environment.The change in the concept of strict liability to liability based on fault is even considered a setback for decades in environmental protection efforts when viewed from the history of setting the concept.
Based on this brief background explanation, the authors are interested in trying to review the impact of the abolition of the strict liability principle in environmental disputes after the ratification of the Law on Job Creation.
The formulation of the problem statement put forward in this reserach are: 1. What is the impact of the abolition of the strict liability principle in Law Number 32 of 2009 on the settlement of environmental disputes?2. What is the ideal design of the concept of responsibility in environmental disputes in Indonesia?

RESEARCH METHOD
The method used in discussing the problems that have been determined previously is by using a normative legal research method using a statutory approach (statute approach), conceptual approach and case approach (Efendi dan Ibrahim 2016).The approach to legislation is carried out by reviewing the laws and regulations relating to environmental protection and management.Then in the conceptual approach, the researcher examines concepts related to accountability in environmental disputes.While in the case approach, the researcher provides a study of facts or data that occurs in the field relating to strict liability in environmental disputes.

Resolution
The Law on Job Creation is a unique law because the process of its formation does not use the usual process in making laws but uses the Omnibus Law process by bringing together a total of 79 laws that have different principles and objectives between one law and another.The approach to the formation of laws and regulations using the Omnibus Law method was chosen with the aim and hope of accelerating inflows of investment and simplifying licensing so that it is easier for investors to obtain which has an impact on increasing employment opportunities and accelerating economic recovery.This is nothing but one way to realize one of President Jokowi's visions in his second term, namely to create a friendly investment climate for investors (Sutrisno and Poerana 2020).
Of the total 79 laws that were changed due to the Law on Job Creation, one of the laws that was affected was the Environmental Protection and Management Law.There are 30 articles that have changed, 17 articles that have been deleted and 1 additional article.There are at least 5 aspects that are affected by this change, namely environmental dispute law enforcement, public participation, supervision, information disclosure, and environmental licensing.
Strict liability or absolute liability is a form of responsibility for all parties whose actions damage the environment without the need to prove of the element of fault (Akib 2014).In the Environmental Protection and Management Law, this principle is contained in Article 88 which reads "everyone whose actions, business and/or activities use Hazardous and Toxic Materials, generates and/or manages Hazardous and Toxic Materials waste, and/or those that pose a serious threat to the environment are absolutely responsible for the losses that occur without the need to prove the element of fault."However, the Law on Job Creation later changed the contents of Article 88 of the Environmental Protection and Management Law regarding absolute liability so that it reads "Everyone whose actions, business, and/or activities use Hazardous and Toxic Materials, generates and/or manages Hazardous and Toxic Materials waste, and/or poses a serious threat to the environment is absolute liability for the losses that occur from its business and/or activities".It can be seen that the sentence "without the need to prove the element of fault" has been deleted in Article 88 and then the sentence "from its business and/or activity" is added.
The abolition of the sentence theoretically will have implications for the concept of absolute liability, where for the payment of losses in disputes the element of error is something that does not have to be proven by the plaintiff.The terminology of this phrase is lex specialist in disputes relating to unlawful acts in the field of environmental law.Although in the amendment to Article 88 there is still the phrase "absolute liability " but in a good and correct legal conception and reasoning Article 88 can no longer be said to be absolute liability or strict liability because the dignity of this principle lies in accountability without the need to prove an element of fault.This means that in future environmental disputes, victims who are harmed must collect data and strong evidence to be used as evidence to receive compensation from parties who destroy the environment.
The principle of strict liability in the Environmental Protection and Management Law is a legal breakthrough with the perspective of protecting the victim so that the rights of the victim injured by the perpetrator can be restored through a compensation scheme.This concept of responsibility is very appropriate to be applied in the current era of disruption and technological progress and development where many people are disadvantaged by modernization which causes environmental damage and pollution (Praja, et al 2016).The abolition of the strict liability principle in the Environmental Protection and Management Law by the Law on job creation has brought logical consequences to the application of a liability based on fault mechanism in the settlement of environmental disputes.
Accountability based on fault or known as schuld aanprakelijkheid in the civil law legal system or what in the common law legal system is more familiarly called liability based on fault and tort liability, is the concept of liability in a lawsuit which, historically, has existed since Roman times.This concept implies that the defendant is responsible for the losses suffered by the plaintiff on the condition that there is evidence that confirms that he is guilty, but if he is able to prove that he is not guilty all charges imposed on him will be void and he will be released from this responsibility.If it is related to a claim for compensation due to pollution or environmental destruction, the defendant is only obliged to compensate if there is strong evidence to declare him guilty of polluting or destroying the environment which causes the plaintiff to suffer losses.
In fact, the principle of liability based on fault has indeed been regulated in the Environmental Protection and Management Law as one of the mechanisms for proving accountability.However, this principle is used in Article 87 paragraph (1) regarding compensation and environmental restoration which reads "every person in charge of a business and/or activity who commits an act that violates the law in the form of pollution and/or destruction of the environment that causes harm to other people or the environment is obliged to pay compensation and/or take certain actions".
Accountability based on errors is formulated in Article 1365 of the Civil Code.Article 1365 of the Civil Code is based on the liability of a lawsuit based on an error that requires the fulfillment of four main conditions, namely there is a loss, the defendant is proven guilty, there is a causal relation between the act and the loss, and finally the act is an act that is against the law.In order to be won in the lawsuit by the judge, the plaintiff must be able to prove the fulfillment of all these elements.The most important element proven by the plaintiff is the fault committed by the defendant.Errors in the legal literature are divided into two, namely those caused by intention (dolus) and those caused by negligence or negligence (culpa) (Apriani 2020).Based on the concept of liability based on fault, the plaintiff is tasked with proving that there is an element of error committed by the defendant in which the action is detrimental to the plaintiff.
The application of the principle of liability based on fault in Article 87 paragraph (1) is legal because after all, the act of pollution and environmental destruction must still be proven by an element of error committed by the defendant.However, this is different from Article 88, where there are other considerations that eliminate the need for an element of proof of guilt.
Article 88 specifically regulates the act of pollution and environmental destruction caused by Hazardous and Toxic Materials and Hazardous and Toxic Materials waste.The formulators of the Environmental Protection and Management Law and environmental law experts have the same conclusion that strict liability liability is only applied to the use of hazardous, toxic materials and to hazardous activities (ultra hazardous activities or substance).
If the actions taken have an impact on the right to environmental protection or injure the public interest, there is no need to prove the element of fault.This is in line with the adage res ipsa loquitor, namely facts that speak for themselves, facts that can be witnessed are detrimental to the community so that the element of error by this act does not require the presence of proof.
The losses suffered by the wider community become an important point why strict liability can then be used (Muamar dan Utari 2020).
Seeing the strict liability provisions in Article 88 of the Environmental Protection and Management Law which has been amended in the Law on Job Creation so that it becomes a liability based on fault, it will certainly have an impact on efforts to take action against environmental pollution and damage caused by Hazardous and Toxic Materials and Hazardous and Toxic Materials waste through litigation in the form of environmental dispute resolution.
Because liability based on fault, the plaintiff will be burdened by the complexity of proving the element of fault.Although there is a relation between losses, it can be realized that it comes from the actions of the defendant or the perpetrator (polluter) is not enough capital to punish the defendant.Proving that there is fault requires evidence of fault that is not easily obtained for unlawful acts related to dangerous acts.Due to the ever-changing circumstances of nature, it is not uncommon for usable evidence to be lost and no longer usable.

Indonesia
In the settlement of environmental disputes, which in fact are civil disputes, there are several elements that must be fulfilled, such as the element of responsibility.Accountability in the legal world can be divided into two, namely ordinary responsibility and special responsibility (Machmud 2012).The legal basis for ordinary accountability can be seen in Article 87 paragraph 1 of the Environmental Protection and Management Law.The article regulates the form of liability in civil lawsuits regarding environmental pollution based on unlawful acts that need to prove ab element of fault as previously explained.Acts against the law expressively regulated in Article 1365 of the Civil Code which reads "every act that violates the law, which causes harm to another person, obliges the person who because of his mistake in publishing the loss, compensates for the loss".Then, the legal basis for accountability is specifically regulated in Article 88 of the Environmental Protection and Management Law which is known as strict liability or liability without fault, namely absolute responsibility without the need to prove the element of fault.
However, because the Law on Job Creation amends Article 88 of the Environmental Protection and Management Law so that the sentence "without the need for proof of the element sustainability and sustainability of various activities with enormous responsibility because it is directly related to Hazardous and Toxic Materials (ultrahazardous activity dan abnormally dangerous) (Praja et al 2016).Kolosa and Mayer also provide the same terms and conditions to apply the principle of strict liability which includes: "Extra-hazardous activities and dangerous animals can be the occasion for determining strict liability.The activities must be such that they are not in common usage in the community and involve a risk of serious harm to persons or property that cannot be eliminated by the use of due care" (Kolosa and Mayer 1978).So that if the activity is carried out without using strict liability, it is considered not strong enough to provide legal protection for victims.
In practice, environmental lawsuits that use strict liability as the basis for liability have been successfully applied in Indonesia several times.For the first time in 2003, the court issued a decision that granted the plaintiff's claim through the application of strict liability in seeking compensation from the defendant or polluter.Bandung District Court Decision No. 49/Pdt.G/2003/PN.Bdg which was strengthened again through a court decision at the appeal level and in the end it was won at the cassation level which later became known as the "Mandalawangi decision".Then in 2016 there was another decision that used strict liability, namely the decision of the South Jakarta District Court No. 456/Pdt.G-LH/2016/PN.Jkt.Sel.In addition, PT.Waringin Agro Jaya was also successfully asked for compensation through strict liability by the Ministry of the Environment with a total compensation of Rp. 466 Billion.
The concept of strict liability responsibility is a concept that prioritizes taking sides with the victim in order to get compensation from the perpetrator (polluter).Strict liability is very appropriate to be applied to activities that use Hazardous and Toxic Materials and Hazardous and Toxic Materials waste because in today's very modern era of disruption, many people are victims of modernization, one of which is affected by environmental pollution.The principle of liability based on fault or the principle of responsibility based on is a principle that is not relevant to the times when it is used in cases related to the environment (Imamulhadi 2013).
Prioritizing the rights of victims in returning to their original state is the goal of implementing the principle of strict liability which sees the severity of the plaintiffs (lay people) proving the mistakes made by the perpetrators caused by modern and high-tech industrial tools.The costs required are also not cheap, so the damage that is clearly visible and experienced may not necessarily be proven by the plaintiff to obtain compensation from the defendant (Prakoso 2016).
The application of strict liability in environmental disputes is able to eliminate the obstacles experienced by victims.Then another thing that benefits the victim is that technically the perpetrator is automatically responsible regardless of whether he is guilty or not because what is enough to see is whether there has been environmental damage due to the perpetrator's actions and there is a real loss suffered by the victim.This concept is a very useful breakthrough in the field of environmental protection.Because the basis of responsibility for getting compensation that is always put forward is the element of fault Then if you refer to the contents of the academic text of the Law on Job Creation, then there is an extraordinarily fatal juridical defect carried out by the government and is a deliberate effort due to the misunderstanding of the compilers in amending Article 88 of the Environmental Protection and Management Law which then eliminates the principle of strict liability.In the academic text, it is stated that the reason for the abolition of the phrase "without the need to prove an element of fault" is that in every criminal act it must be proven that there is an element of fault.The reasons made by the government are not based on good and correct legal logic because strict liability as stated in Article 88 of the Environmental Protection and Management Law is within the scope of unlawful acts which are civil law.

CONCLUSION
The concept of strict liability in Article 88 of the Environmental Protection and Management Law which has been amended in the Law on Job Creation so that it becomes liability based on fault will certainly have an impact on efforts to take action against pollution and environmental damage caused by Hazardous and Toxic Materials and Hazardous and Toxic Materials waste through the settlement of environmental disputes.Because liability is based on fault, the plaintiff will be burdened with the complexity of proving the element of fault.
Although in the amendment to Article 88 there is still the phrase "absolute responsibility" but conceptually and legal reasoning Article 88 can no longer be said to be absolute liability or strict liability because the dignity of this principle lies in accountability without the need to prove an element of fault.Ideally, in Article 88 of the Environmental Protection and Management Law, the concept of strict liability is used as the basis for liability for environmental disputes.
Strict liability is a principle that prioritizes taking sides with victims of environmental pollution in order to obtain compensation from the perpetrators (polluters).Technically, the perpetrator is automatically responsible without seeing whether there is an element of error or not because the reference for accountability is whether there has been environmental damage due to the perpetrator's actions and there is a real loss suffered by the victim.In addition, if referring to the academic text of the Law on Job Creation, the government has made a mistake in omitting the phrase "without the need to prove an element of fault" with the reason of crime requires proof of an element of fault, while Article 88 of the Environmental Protection and Management Law is in the civil subject.
Environmental disputes caused by environmental pollution recognize the concept of absolute liability (strict liability) to parties who pollute the environment without the need to prove the element of fault first.But currently the concept of Strict Liability as regulated in Article 88 of the Environmental Protection and Management Law has been abolished by Law Number 11 of 2020 concerning Job Creation (Law on Job Creation).The presence of the Law on Job Creation which has an impact on at least 79 laws on the pretext of facilitating investment inflows has indirectly eliminated the essence of environmental protection regulated in the Environmental Protection and Management Law.Absolute liability for the perpetrators of environmental destruction is lost due to the abolition of the phrase "without the need to prove of the element of fault" so that the concept of responsibility changes to being based on fault (liability based on fault).