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[35-52] Irwansyah
Editorial Office: Faculty of Law, Sriwijaya University
Jalan Srijaya Negara, Palembang, South Sumatra 30139, Indonesia.
Phone: +62711-580063Fax: +62711-581179
ISSN Print: 2541-5298 E-mail: sriwijayalawreview@unsri.ac.id| sriwijayalawreview@gmail.com
ISSN Online: 2541-6464 Website: http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview
RESEARCH-BASED ENVIRONMENTAL LAW:
THE DEBATE BETWEEN ECOLOGY VERSUS DEVELOPMENT
Irwansyah
Abstract: Nowadays, economic growth continues to be driven not followed by equity and jus-
tice compliance.Cases of natural resources looting, pollution and environmental destruction,
forest fires and illegal mining, as well as the neglect of the rights of indigenous peoples, bring
into a series of major issues and need study that are not limited to mono-discipline approach, but
also to a more important study thatcan be used as a basic study toward a paradigm shift from all
stakeholders and policy-makers in this country to synergize the importance of ecological with
various dimensions of other interests, such as a fair and equitableeconomic growth, animproving
quality of life and welfare of the people. Realizing the balance of ecological and development
(economic) interests, have been used a wide variety of approach have been used to improve the
environmental management in Indonesia, including command and control, self-regulation, vo-
luntarism, education and information instruments, and economic instruments. These approaches
has its weaknesses. These have to be improved. Moreover, as it turns out in pr actice, these
efforts needed some more consistent policies in applying the principles of sustainable develop-
ment for the control and utilization of environmental resources. In addition, strengthening the
right to the environmental as a part of human rights, need support of policy-makers toward a
paradigm change and a more concrete measures at the level of legislation policy in the field of
environmental protection and management that is pro-people and support a judicial decision that
is more rational and responsive.
Keywords: Development; Ecology; Environmental Law; Natural Resources.
ARTICLE HISTORY: INTRODUCTION
Received: Conventional development has been suc-
Dec 23, 2016; Reviewed: Dec 30, 2016
Accepted: cessful in increasing economic growth, but
Jan 7, 2017; Published: Jan 31, 2017. also experienced a failure in the aspects of
social and environmental. One of the causes
Faculty of Law, Hasanuddin University
E-mail: irwansyahrawydharma@yahoo.com for the conventional development put eco-
nomic on central issues of growth and oth-
erwise put social and environmental factors
1
in a less important position. Economic
Sriwijaya Law Review Vol. 1 Issue 1, January (2017) [ 35 ]
Research-Based Environmental Law: The Debate Between Ecology Versus Development
growth continues to be driven not followed portance of ecological with various dimen-
by equity and justice compliance. Many re- sions of other interests, such as economic
gions have the potential and wealth of abun- growth are fair and equitable, improved
dant natural resources, but ironically the re- quality of life and welfare of the people.
gion was just a lot of people who are poor,
there is damage and massive environmental ANALYSIS AND DISCUSSION
pollution, followed by social conflicts in the Environmental Setting Approach
region. Fundamental mistake against the
state and perspectives can be fatal which had In relation to the environmental manage-
a significant impact on the environment. ment today, there are at least 6 (six) varia-
tions of setting instruments to address envi-
Various environmental issues that arise ronmental problems in Indonesia, namely:
and knock the nation and the people who (1) command and control regulation, (2)
continuously take place without this con- self-regulation, (3) voluntarism, (4) educa-
trol,it cannot be conducted through a partial tion and information instruments, (5) eco-
approach alone, but a necessary an integral, nomic instruments and (6) free market envi-
2
comprehensive, and systematic approaches. ronmentalism. Education and information
Both related to the substance of legislation, instruments consist of education and train-
strengthening the judiciary, instrument, law ing, corporate environmental reports, com-
enforcement, justice compliance, govern- munity rights to know and pollution inven-
ment authorities, and public participation in tories, product certification and award
it. Cases of natural resources looting, pollu- schemes. While, economic instruments in-
tion and environmental destruction, forest cludes property rights, market creation, fis-
fires and illegal mining, as well as the neg- cal instruments and charge systems, finan-
lect of the rights of indigenous peoples, into cial instruments, liability instruments, per-
a series of major issues and need study are formance bonds, deposits refund system,
not limited to mono-discipline approach, but 3
and removing perverse incentives.
a discourse to be a study are more intense
and in-depth. A research in the field of man- a. Command and Control Approach
agement and protection of natural resources The sixth of instrument variation, then the
and environment are not only important to rule with the command and control approach
release a concept and new thinking are in- dominate the environmental management
novative and correlative to addresses the system in Indonesia to date. This is related
diversity of problem, but more important to to more environmental protection through
be used as a basic study was a paradigm the mechanism of legislation that is com-
shift from all stakeholders and policy- mand and control, which is characterized by
makers in this country to synergize the im- (1) the requirements of specific standards,
(2) licensing, and (3) sanctions for offender.
1
Emil Salim,Paradigma Pembangunan Berke-
lanjutan, Jakarta: Kepustakaan Populer Gramedia,
2010, p24.
2 3
Imam Mulyana, 2016, ³The Development of Neil Gunningham, et al.,Smart Regulation:
International Law in the Field of Renewable DesigningEnvironmental Policy, Oxpord:
Energ\´Hasanuddin Law Review, 2(1), pp38-60. Clarendon Press, 1998, p38.
[ 36 ] Sriwijaya Law Review Vol. 1 Issue 1, January (2017)
Irwansyah
7KH JRYHUQPHQWV¶ SROLF\ LQ HQYLURQ- ments. The combination of these is termed
mental management is done by making laws by Neil Gunningham, Peter Grabosky&
4
and other regulations whose contents give a Darren Sinclair as Smart Regulation, which
standardized certain target. UUPPLH as an is seen as a new paradigm of wise environ-
example of laws material indicate the com- mental regulation.
mand and control approach.The experience Since the early 1970s, the governments
in many developed countries that have im- in industrialized countries have responded to
plemented this way, it can be concluded that the emergence of environmental degradation
the command and control approach by im- and industrial pollution with a lot of envi-
plementing waste quality standards result in ronmental policies. The dominant govern-
high costs. This condition encourages scien- PHQW¶VUHVSRQVHVE\ LPSOHPHQWLQJ WKH UXOHV
tists from various fields working to get a that is command and control that are de-
more efficient method to implement pollu- signed to prohibit or restrict the activities
tion environment control. that damage the environment. Generally,
The policymakers with a variety of command and control regulations have cha-
strategies are available, allowing serious en- racteristics of environmental targets, e.g li-
vironmental damage can be slowed, stopped miting emissions that pollute the water or
or ideally environment is restored to its orig- air, and further sanction if those targets are
inal state. One of the most important strate- not achieved.
gies is environmental regulations. In the Based on experience in the application
broadest sense, the term of environmental of this command and control approach in
regulations include not only conventional many countries, including Indonesia, can be
forms of command and control regulations, concluded that at least 9 (nine) causes the
but also includes other forms of public con- ineffectiveness of this approach.
trol is more flexible, imaginative, and inno-
vative. For example, self-regulation and co- First, command and controlinstrument
regulation, by involving parties from the require policy makers have accurate and
business and NGOs and by improving the comprehensive knowledge of the procedures
effectiveness and efficiency of conventional and industrial capacity. For example, in ap-
forms of government regulations. plying the standard of best available tech-
nology (BAT), policy-makers are often re-
Therefore, environmental regulations quired to use the information that is lengthy
need to be redesigned in order to function and convoluted to determine the proper pol-
optimally and meet these criteria above. The lution reduction targets. There is a clear im-
main reason is that in a large part of situa- balance of knowledge between policy-
tion, the use of multiple policy instruments makers and industry. By assuming that poli-
and the role of various actors will contains cy-makers acquire the right knowledge, they
the setting of environmental protection is can only provide a temporary solution for
better than if using a single instrument. A the population, technological, and economic
better strategy is to utilize the strengths of
each instrument and compensate its weak-
nesses with the use of additional instru-
4 Neil,Note 4. p231.
Sriwijaya Law Review Vol. 1 Issue 1, January (2017) [ 37 ]
Research-Based Environmental Law: The Debate Between Ecology Versus Development
activity, and changes in economic activity ing procedures, judgments, and other poli-
and growth, and environmental issues arise. cies that must be enforced. This can result in
Second, command and control instru- excessive regulations and counter-
ments do not provide an incentive for com- productive. Newcomers in the industry be-
panies to go beyond the minimum standards came not-interested due to the regulatory is
that have been set, particularly companies lengthy and law approval process relating to
that have invested in pollution control tech- command and control.
nology to meet the required standard. Inabil- Sixth, command and control instru-
ity to encourage companies to go beyond ments are not efficient due to the cost of
compliance, through process improvement complianceis great. This inefficiency can be
and culture change constantly is one of the viewed both from the government as policy-
most serious failures of command and con- maker and supervisor as well as business-
trol traditionally. So, the command and con- men as parties subject to the policy.
trol instruments do not have the ability to Seventh, command and control instru-
encourage companies achieve more than ments are rigid. Environmental regulations
what is required. specify very specific technology standards
Third, command and control instru- for the industry. These standards often do
ments in its enforcement are costly and dif- not consider the environment and conditions
ficult. This is important because it can im- are different among industries, far fewer
pact on its reliability. Although in temporer than the conditions among certain facilities
the bodies are not release to enforce, mostly within a single industry. Once set, the stan-
setting regime has not appropriate resources dard is difficult to accept changes in tech-
to monitor compliance. nology. Because a technology change is fast,
Fourth, command and control instru- inflexibility of command and control regula-
ment are susceptible to political manipula- tions can be more troublesome.
tion. Many examples, regulatory policy is Eighth, many environmental regula-
hacked for the benefits of individual or tions generated by command and control
groups. Similarly, the regulator has its own approach has led some experts to conclude
interests which may be controlled by a par- that the system will crash due to its own
ticular industry and do rent-seekingwhich weight is heavy. In accordance with this
bureaucracy has its own interests to the thinking, many regulations will ultimately
amount paid at the expense of the public. lead to both society organized and the legal
Fifth, command and control instru- system reached saturation point. This phe-
ments can lead to complexity of administra- nomenon is not run by the inability of the
tive and legal restrictions. The number of people who arranged for the financial budg-
environmental laws and regulations related et necessary to meet the increasing demands
in industrialized countries make it difficult of the laws. One of the success of this sys-
for policy makers and the industry itself to tem is that in twenty-five years ago, mem-
carry out its obligations. Industry became bers of the community are regulated not on-
the object of a number of regulations, licens- ly allocate financial resources for achieving
compliance, but also include the costs of
[ 38 ] Sriwijaya Law Review Vol. 1 Issue 1, January (2017)
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