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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 ...

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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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