The New Environmental LawThe New Environmental Law
On 8 September 2009 Parliament passed the Environment Protection and Management Bill (the New Environment Law) which will commence within 60 days thereof, or if the President signs the Bill before the 60 days expires, on the date when he signs. The New Environmental Law will replace Law Number 23/1997 on Environmental Management and includes revised and new offences, new licensing requirements and provisions allowing Non-Government Organisations (NGOs) and individuals to sue companies in respect of environmental damage.
Requirement for “environmental permit” (Izin Lingkungan) The New Environmental Law introduces the new environmental permit (Izin Lingkungan) which must be obtained by companies undertaking business activities which require:
· AMDAL (Analisis Mengenai Dampak Lingkungan) (detailed environmental impact assessment and approval); or
· UKL (Upaya Pengelolaan Lingkungan) "Environmental Management Efforts” and UPL (Upaya Pemantauan Lingkungan) “Environmental Monitoring Efforts”.
Readers would be aware that AMDAL is required where the proposed activities are likely to have a significant impact on the environment as specified in relevant regulations (for example certain mining and plantation projects). UKP and UPL are required for activities where AMDAL is not required, with some exceptions.
On the wording of the New Environmental Law, an environmental permit will be required for existing businesses, as well as new operations. Further details of the new environmental permit regime are to be contained in implementing regulations under the New Environmental Law.
Licensing required for waste disposal
The New Environment Law includes new provisions requiring licencing for waste disposal including in relation to the disposal of waste water. Penalties for failure to hold the required licence are significant with maximum penalties of 3 years in goal and IDR 3 billion fines.
Revised and new criminal offences
The New Environmental Law prescribes a range of criminal offences for actions which result in damage or harm to the environment. Some offences are similar to those under the 1997 Environmental Law with much higher penalties. The offences under the New Environmental Law include:
· failure to hold an environmental permit where required, with a maximum penalty of 3 years in goal and a fine of IDR3billion (there are also criminal penalties for officers who do not properly assess or issue the permits);
· deliberately causing environmental damage with a maximum penalty of 10 years in goal and an IDR10billion. Where the above environmental damage causes death or serious injury the penalties increase to a maximum of 15 years in goal and IDR15 billion in fines; and
· negligently causing environmental damage with minimum penalties of 1 year in goal and an IDR 1 billion fine. Where the above environmental damage causes death or injury the penalties increase to a maximum of 9 years in goal and an IDR 9 billion fines.
NGOs can sue companies for environmental damage Under the New Environmental Law, NGOs and individuals have legal standing to sue companies for environmental damage. The threshold requirements for such Court actions under the New Environmental Law are unclear. This is of some concern given the concept of “the environment” is very broad and a range of common events could arguably be regarded as causing “environmental damage”.
Prohibitions on avoiding liability by restructure
The New Environmental Law includes provisions which appear to be aimed at preventing a restructure or transfer of assets or shares to circumvent liability to pay damages in respect of environmental offences. The wording of the provisions is unclear and open to interpretation. However it could capture the actions of officers including Directors and Commissioners. |
|
Suite 701, 7th Floor Indofood Tower Sudirman Plaza Jl. Jend. Sudirman Kav. 76-78 Jakarta 12910, Indonesia
Telephone : +6221 579 36699
Facsimile : +6221 579 36619
e-Mail : jakarta@brigitta.co.id
 |