Analysis of Supreme Court Decision No. 08/Pdt.G/2019/PNSby. About Brantas Watershed Pollution Lawsuit Based on Panel of Judges’ Considerations, Environmental Law and State Administrative Law
The Brantas Watershed (DAS), which is a national strategic river area and is the basis for information on water quality, is currently polluted. The Water Quality Index (IKA) of the Brantas River in 2017 was 47.48 or below the Water Quality Standard (PP No. 82 of 2001). From the monitoring results of the Brantas River in 2020, an IKA value of 48.77 was obtained, which means that both rivers are in a polluted condition or show low water quality. This can be seen from the parameters of Biochemical Oxygen Demand (BOD) 6.75 mg/liter, phosphate 0.302 mg/l, fecal coliform 2,373.88 mg/l, detergent 32.98 mg/l, and total Coliform 25.424.48 mg/l. The massive pollution of the Brantas watershed and the low quality of water are problems that are also experienced by several developing countries. In the context of river recovery, affected communities or environmental organizations take legal action in the form of filing a lawsuit. This lawsuit targets the executive agency to be responsible for taking action according to the mandate it carries in the context of environmental management based on Law Number 32 of 2009 concerning Environmental Protection and Management (UUPPLH) and administrative law enforcement, so that environmental management is guided by the law. administrative regulations that apply according to the laws that have been determined.
Enforcement of administrative environmental law can be done in two ways, namely preventive and repressive. Preventive enforcement of administrative law is carried out through supervision, while repressive law enforcement is carried out through the application of administrative sanctions. The supervision and application of administrative sanctions aims to achieve public compliance with the legal norms of the administrative environment. The concept of environmental management supervision policies in the context of UUPPLH needs to be comprehensively regulated which includes independent monitoring, recording and reporting of results to relevant agencies that are open to the public; primary supervision by inspectors from the licensing agency; second supervision from provincial or central government agencies if the first agency fails to carry out its supervisory function in the form of external supervision or public supervision. Of course, to make supervision effective, appropriate punishment strategies are needed, starting from the imposition of light administrative sanctions to revocation of permits.
Based on the above background, the purpose of writing this article is to analyze the decision of the Supreme Court (MA) No. 08/Pdt.G/2019/PNSby based on the consideration of the Panel of Judges, environmental law, and state administrative law. The decision stems from a lawsuit for pollution of the Brantas watershed that was filed by Ecoton with case number 08/Pdt.G/2019/PN Sby. In this decision, the consideration of the Panel of Judges on the evidence presented by Defendant I was (1) that because the evidence presented by Defendant I was a legal norm based on the theory of legal fiction that everyone should be considered aware of the existence of the provision, the principle applies. novum notoir – something that is known to the public does not need to be proven again; (2) The results of the writing of the Ministry of Environment and Forestry together with the Faculty of Geography UGM on the Capacity and Allocation of Pollution Loads of the Brantas River, Decree of the Minister of Environment and Forestry Number SK.316/Menlhk/Setjen/KUM.1/7/2018 concerning Determination of Water Pollution Load Capacity and the Allocation of Water Pollution Burden of the Brantas River proves that the environmental conditions at the time of writing are not static, but change rapidly. That is, the difficulty of proving environmental pollution does not depend on the analysis of the results of writing that is carried out randomly or sporadically because the evidence of an environmental crime, especially pollution, will experience drastic changes and it can only be proven by the effects on natural ecosystems such as the death of aquatic biota and water pollution. what stands out in the a quo case is the death of the fish. Based on the Regulation of the Minister of Environment and Forestry of the Republic of Indonesia No. P.22/MENLHK/SETJEN//SET.1/3/2017 concerning Procedures for Management of Complaints of Alleged Pollution and/or Environmental Destruction and/or Forest Destruction. The evidence presented by Defendant I was only based on rhetoric by referring to the rules without proving their implementation, either as preventive or repressive measures. As a result, based on these legal considerations, according to the Panel of Judges, Defendant I could not prove otherwise through proof that was tegen bewijs against the arguments and evidence of the Plaintiff.
The evidence by Defendant II that was taken into consideration by the Panel of Judges was (1) Evidence related to legislation and regulations that will be considered as long as they are relevant and have a correlation with the death of fish in the Brantas River for which the Defendants and Defendants are held accountable in case a quo; and (2) Joint Declaration of Brantas River Consortium dated March 1, 2019, as well as other evidence including Publication of Water Quality Monitoring Data in 2018, Publication of Water Quality Monitoring Data in May 2019, Community Empowerment Activities, Bulletin of BBWS Brantas January-April 2017, Activity Report World Water Day 2017 and the Inauguration of the Klibuk Park for the Lower Brantas Riverbank, as well as the Surabaya River Integrated Water Patrol July-December 2018. The evidence relates only to data, while data on the condition of dead fish and their handling are not followed up. The evidence is also only evidence of the formality of activities that are not related to the argument of the Plaintiff’s lawsuit regarding the presence of dead fish in the Brantas River from 2011 to 2019 for which there was no repressive action against the perpetrators of water pollution around the Brantas River watershed. Based on the Strategic Plan of the Ministry of Public Works and Public Housing for 2015-2019 and the Concept of the Strategic Plan of the Ministry of Public Works and Public Housing for the Year 2020-2024, where the evidence is a concept whose implementation must be represented on the ecology/ecosystem of the Kali Brantas watershed area which apparently still exists. fish die at that time. From this evidence, there is no evidence that proves otherwise that the mass death of fish in the Kali Brantas watershed was not caused by water pollution in the Kali Brantas watershed by business actors who are under the supervision of the Defendants. Based on these legal considerations, according to the Panel of Judges, Defendant II could not better prove the arguments of the Plaintiff’s lawsuit.
After observing the considerations of the Panel of Judges against the plaintiff’s claim, the author agrees with all the arguments and evidence that have been considered by the judge. The fact that there has been pollution and degradation of water quality in the Brantas watershed that has occurred for years has not received any significant action from the executive even though the existing regulations and laws have even reached the setting of permissible water quality standards or thresholds. The people who have been harmed have so far suffered from the effects of pollution and may continue to do so for an indefinite period of time. Therefore, it is considered appropriate if the Panel of Judges accepts and partially accepts the plaintiff’s claim, states that the defendants have committed an unlawful act, instructs the defendants to apologize to the public in 15 cities/districts that the Brantas River passes for the negligence of the management and supervision carried out. causing mass death of fish every year, and ordering the defendants to include the Brantas River water quality restoration program in the 2020 State Budget.
The Minister of the Environment can supervise the obedience of the person in charge of the business/activity whose environmental permit is issued by the Regional Government. Supervision is carried out to determine the level of compliance of the person in charge of the business and/or activity with respect to environmental permits and permits for environmental protection and management.
Violation of environmental permit is a violation committed by everyone because they do not have an environmental permit; do not have environmental documents; not complying with the provisions required in the environmental permit, including not applying for a permit for environmental protection and management at the operational stage; not complying with obligations and/or orders as stated in the environmental permit; not make changes to environmental permits when there are changes in accordance with Article 50 of Government Regulation Number 27 of 2012 concerning Environmental Permits; does not make and submit implementation reports on the implementation of environmental requirements and obligations; or not providing a guarantee fund.
The protection and management permit includes (1) a hazardous and toxic waste management permit (which includes (a) a B3 waste storage permit; (b) a B3 waste collection permit; (c) a B3 waste utilization permit; (d) a B3 waste management permit; (e) B3 waste dumping permit; (2) Permit for dumping into the sea; (3) Waste water disposal permit; (4) Permit to discharge waste water into the sea; (5) Permit for disposal of waste water through injection and; (6) Permit to discharge emissions into the air. Violation of the environmental protection and management permit is a violation committed by everyone because they do not have an environmental protection and management permit; does not have an environmental permit; do not have environmental documents; not complying with the requirements for environmental protection and management permits; not comply with obligations and/or orders as stated in the environmental protection and management permit and/or; does not make and submit implementation reports on the implementation of environmental requirements and obligations.
Article 74 of UUPPLH 2009 stipulates that environmental supervisory officials are authorized to (a) conduct monitoring; (b) requesting information; (c) make copies of documents and/or make necessary records; (d) enter a certain place; (e) photographing; (f) making audio-visual recordings; (g) taking samples; (h) inspect equipment; (i) inspect the installation and/or means of transportation and/or; (j) stop certain offences. In carrying out their duties, environmental supervisory officials may coordinate with civil servant investigators and those in charge of businesses and/or activities are prohibited from obstructing the implementation of the duties of environmental supervisory officials.
Based on the results of this article, it can be concluded that:
- Population and industry contribute to the existing damage, especially the use of hazardous and toxic materials and other chemicals.
- The management of the polluted Brantas watershed is very contradictory to the performance of the Indonesian government at the central, provincial and district/city levels. Even though there has been a Supreme Court decision regarding the pollution of the Brantas watershed, the government so far does not have a comprehensive plan and serious political capacity to restore the polluted Brantas watershed.
- A precautionary approach in the use of hazardous chemicals is needed or at least put forward the precautionary principle as an effort that must be considered from the start.
- Amdal is one of the main requirements in obtaining environmental permits and part of preventive efforts in the context of controlling environmental impacts as a reference in conducting supervision.