SUING ENVIRONMENTALPERMIT; CHALLENGES IN
INDONESIA ADMINISTRATIVE
COURT LITIGATION
Osaka, 22 September 2018
Rika Fajrini

Indonesia EIA ProcedureIndonesia Environmental Case
Adjudication
Supreme
Court

AdministrativeCourt• Trial by certified
environmental judges• EIA related : Administrative
case related to permit

General Court• Trial by certified environmental judges• EIA related : Criminal case (e.gfalsified of information) and civil case(demand for compensation andrestoration)

Challenges in Environmental Permit
Litigation
Legal standing

Assessingadequateparticipation

Injunction

Adjudicatingof EIA scientificsubstance

Meaningfulcourt decision
execution

(1) Legal standing
Statue of limitation

Statue of limitation for filing administrative lawsuit:• 90 days since the administrative decision isannounce or received• For third party, 90 days is calculated since theyknow about the administrative decision which
violate their interest

Problem : How to determine that “people know?”

(1) Legal standing
Kendeng- Rembang Case(1) Legal standing

7th June2012:
Environment
al permit isissued

22nd June2013 :
Socialization
by local
govt

11th June
2012: Permit
is publishedin website
and local
environmen
tal agency
office18th June2014 :
Access to
Information
requestLate 2013 :Villagers
protest

1stSeptember
2014 : The
lawsuit isfiled

(1) Legal standing Rejected by First
Instance andappeal court Granted bySupreme court

No legal standing because thestatue of limitation is exceeded• People considered “know”,
when their access to
information is substiantially
fulfilled• The publication did not
fulfilled this access since it
did not considered thesocial and cultural condition

(1) Legal standing
Potential damage :Proofing interest• Point d’interest point d’action• Interest in the form of concrete damage vs potential
damageProblem : Level of certainty/probability judges
want when assessing potential damage

(1) Legal standing
Celukan Bawang Coal Power Plant
Phase II

(1) Legal standing Rejected by First
Instance appealcourt• No legal standing• Potential damage isconsidered as asumption
without strong scientificevidence• Technology can manage
the risk

Should have applied
precautionary principle!

(2) Assessing adequate publicparticipation• The absence of public participation makes EIA
procedurally defect• This is the legal base to revoke environmental permit

Problem : In practice, it is not that there is no public
participation, but the public participation is notadequate and meaningful.

(2) Assessing adequate public
participation
Kendeng case Granted bySupreme court• Link between access to
information and publicparticipation• Adequate representativenesof different group of interest
as one tool to assesst public
participation

(3) Adjudicating of EIA scientificsubstance• Aspect to be considered in administrative caseadjudication :a) procedural aspect, (e.g lack of public
participation : Kendeng case)b) Authority, (e.g issued not by correct authority :Indramayu power plant case)c) substance of administrative decision

Problem : Administrative judges are still precautious in
adjudication EIA scientific substance, as judges are notscientists.

(3) Adjudicating of EIA scientificsubstance
In some cases, Administrative judges actually assesst
the scientific substance, but does not highlighted it aslack in scientific substance
Kendeng case

Nowadays, there are morecases required administrativejudges to assesst the scientificsubstance (e.g Celukan
Bawang case)• EIA failed to recognize the vulnerabilityof mining in ground water water basinarea, so it did not prepared propermitigation• EIA failed to provide concrete mitigation
to several community concerned (e.gclean water and agriculture )(4) Injunction• Request to suspend the implementation ofadministrative decision can be granted, with thecondition :a) There is urgency which will cause tremendous
damage to the plantiffb) No public interest in development involved

Problem : How to define “public interest” and weight
between public interest and plantiff’s damage

(4) Injunction
Jakarta reclamation island case
One of the very-veryvery few case in which
injunction is granted.

Judges decided that nopublic interest involve inthe reclamation project(5) Meaningful execution of court
decision• The circle of hell in suing environmental permit

Environmentalpermit
revoked by
the court

Government
issue newpermit

In the end, it will be a battle of
who has more money andenergy to stay in the litigation

People filinglawsuit

Problem : Administrative court can only orderrevocation of permit, without ordering how to “rewrite”
the permit

(5) Meaningful execution of court
decision

13 September 2016
Revision of environmental permit application issubmitted

Kendeng Case
28 September 2016
Meeting on the EIA addendum document by
EAC technical team
5 October 2016
Supreme Court revoked the environmental permit

31 October 2016
Governor is suspected already aware ofSupreme Court decision

9 November 2016

Central government
order to conduct
Strategic
Environmental
Assessment (SEA)
study for Kendeng
mountains area

15 November 2016
Plantiff receved the copy of Supreme Court decision

Governor issue a new environmental permit

7 Desember 2016
Plantiff send execution request of court decision
9 Desember 2016
Plantiff know about the new environmental permit

(5) Meaningful execution of court
decision• Cirebon power plant phase II caseFirst instancerevoke thepermit in thebase of thatthe plant
against spatialplanningNew
government
regulation inspatialplanning

AppealprocessNew
environmental
permit is issued

Appeal wasrevoked

Conclusion Not all loophole can be solved with law. In fact, we can not formalizedeverything Exercise of cases, jurisprudence showing several scenario and lesson learnt
are important to shape better understanding and intrepretation of the law

Thank you
Osaka, 22 September 2018
Rika Fajrini