Transcript Environmental Compliance and Enforcement in Indonesia

Environmental Compliance and Enforcement
in Indonesia
Rapid Assessment
AECEN Annual Forum, Beijing, December 14, 2007
Rosa Vivien Ratnawati
MINISTRY OF ENVIRONMENT
REPUBLIC OF INDONESIA
Prepared with the Assistance of Indonesian Center for Environmental Law (ICEL)
Objectives of the Rapid Assessment
• To describe the
current status of
environmental
compliance and
enforcement programs
in Indonesia
• To identify the
challenges, gaps, and
areas for improvement
• To formulate shortterm and medium-term
recommendations
Outline of Presentation
• Background
– Environmental
Challenges
– Legal
Framework
– Key Institutions
• Rapid Assessment
Results &
Recommendations
Indonesia at a Glance
• Indonesia is an archipelagic country with more than 18,000
islands
• 35 provinces, 448 regencies/cities
• 2005: total population 219M, only 47M living in urban areas
• By 2025: total population 274M, with187M projected to live in
the cities
Environmental Challenges
•
Environmental quality decreased due to
significant increase of pollutants in
water and air (State of Environment Report
2006)
•
•
•
•
Out of 35 rivers monitored by Provincial
Environmental Impact Control
Agencies, 35 are polluted
Waste and garbage production from
2005 to 2006 increased by 20.9%,
usually disposed to open dumps
(although designed as sanitary landfills)
Decreasing air quality from pollution
from transportation and industries in big
cities (Jakarta, Surabaya, Semarang, Bandung
and Medan)
2006: 26.5M ton of toxic and hazardous
waste; most establishment do not have
proper disposal facilities
Legal Framework
• Environmental
Management Act (EMA)
1997
• Environmental
regulations: general,
sectoral, provincial, local,
and ratified environmental
convention
• EMA implemented
through various
environmental regulations
at different levels
Pikiran-rakyat
Key Institutions
• State Ministry of Environment
• Sectoral Ministries/Departments
• Environmental institutions within
provincial/regency/city governments
• National Police Force
• National Attorney
• Judiciary: General Court and State
Administrative Court
Focus Areas of Assessment
1.
2.
3.
4.
5.
Legal Enforcement Authority
Institutional Framework and Capacity Building
Compliance Monitoring
Enforcement Response
Compliance Assistance and Data
Management
6. Economics and other Incentive-Based
Instruments
7. Indicators to Evaluate Program Success
8. Public participation
1. Legal Enforcement Authority
• MoE
- State Ministry, not full Departmental Ministry
- Limited to coordination of policy formulation &
implementation, technical assistance
• Most regulatory powers of MoE were devolved to
environmental institutions within local administrations
(provincial/ regency/ city)
• MoE coordinates with sector ministries on issues
dealing with their specific sector (Industry, Forestry,
Mining, etc.)
1. Legal Authority
No The Authority/Legal Mandate of MoE
Yes
1
Formulating policy, guidance, and strategy
√
2
Formulating quality standards/guidances
√
3
Coordinating the implementation of
environmental management
√
4
Issuing waste disposal license
√
5
Inspection
compliance
actors
√
6
Acquiring sampel for analysis and access to
business/activity record and business/activity
location
√
7
Imposing the self-monitoring, self-reporting
and record keeping to business/activity actors
√
8
Modifying, refusing or terminating license or
application
√
the
business/activity
No
Notes
Only for toxic and hazardous
waste and dump to sea.
Air and waste water license are
Delegated to Regency/City
Administration
Only for toxic and hazardous
waste disposal and dump to sea
license
1. Legal Authority
No The Authority/Legal Mandate of MoE
Yes
No Notes
9
File a civil lawsuit
√
However, the
mechanism is unclear
10
Investigating criminal cases
√
file a case through police
and prosecutor
11
Imposing administrative sanction
√
only for issuing warning
letter and mandatory
environmental audit
12
Imposing criminal sanction
√
via court
13
Imposing civil law sanction
√
via court
14
Conducting remedial action
√
via court
Key Challenges:
• Limitations of MoE regulatory powers
mainly only on toxic and hazardous
waste
• No authority to impose sever sanctions
for violations
• Unclear mandate relative to other
environmental institutions in
implementing EMA on the ground
Recommendations
• Accelerate the revision of the EMA
to include– strengthening MoE enforcement powers
– define concrete coordination
mechanisms
• Issuance of Integrated National
Policy on Environmental
Compliance and Enforcement to
guide all concerned environmental
institutions (integrating and
simplifying laws to avoid gap
&conflicting authority)
2. Institutional Framework and
Capacity Building
• MoE
– Total staff: 894; 6% directly engaged in enforcement;
– Budget: Increased form 0.4% (2005) to 1% for 2008 but still small
(Only ± US $36.000.000 a year); other sources of funds available
– Monitoring compliance and enforcement is shared among different
deputyships
– Coordinates implementation of EMA with local environmental
institutions
• 476 total environmental inspection officers and 397 total
environmental civil investigators at all levels
• Inter- agency coordination: Gov’t. Regulation 38/ 2007
details authorities in all level
• Coordination: experimented with ORES
Institution
Scope
Ministry of
Environment
National
Power






Ministry
Sector
(Department
of Industries,
Department
of Forestry,
Department
of Maritime,
etc)
National





Coordinating with all activities related to the
environmental management
Formulation of policy in the environmental
management area
Issuing license for hazardous waste disposal
Monitoring compliance and supervision
Inquiry and investigation on the environmental
criminal cases
Imposing ‘soft’ administrative sanction (warning
and mandatory environmental audit)
Responsible in implementing the environmental
management policy in each sector/Department
Issuing License to conduct Business
Monitoring on compliance on license to conduct
business requirements issued
Managing
compliance
supervision
on
requirements of license to conduct business issued
Imposing
administrative
sanctions
(suspension/revocation) for the violation of
business license requirements issued
Institution
Scope
Provincial
Government
Province
Power



Regency/
City
Government
Regency/
City




Responsible in implementing the environmental
management policy in its territory of Regency/City
cross-border
Managing
Compliance
Monitoring
(including
inspection)
Imposing several administrative sanction
Responsible in implementing the environmental
management policy in its territory
Issuing site license, building license, nuisance license
(HO)
Managing
compliance
monitoring
(including
supervision)
Imposing several administrative sanction
Institution
Scope
Power
National
Police Force
National

Investigation and Inquiry on environmental criminal
cases
National
Attorney
National

Prosecution on environmental criminal cases in the
courts
Judiciary
National

Hearing on criminal cases (Court of General
Jurisdiction)
Hearing on civil cases (Court of General Jurisdiction)
Hearing on administrative cases (Administrative
Court).


Key Challenges:
• The pattern of central and local coordination in the
context of regional autonomy is still weak
• Inter-agency cooperation: Regulation 38/2007 divides
authorities but does not lay down mechanisms for
coordination
• Internal coordination in MoE is not optimal
– Minimal flow of information from one division with another
– Duplication of work amongst deputyships (e.g. Deputy of
Environmental Compliance & Deputy of Pollution Control)
• State and local budgets are limited and other financial
resources are not well managed
• Limited number of inspectors and investigators at all
levels
Recommendations
• Increase the number of env. inspector
and civil env. investigator and updating
its recruitment, career development,
and placement system
• Improving local env. institution form into
board (Badan) or service unit (Dinas).
• Facilitating communication and
information network and develop ECE
best practices at the local level
3.
Compliance Monitoring and
Inspection
• 2 types of licenses: environmental license (waste disposal
license) and business license (license to conduct business)
• Monitoring and inspection done by all environmental
institutions (MoE, sectoral ministries, local)
• MoE Decree No. 56/2002: General Guidance for
Inspection of Environmental Compliance
• Different units in MoE have their own methods in
gathering the compliance information from regulated
communities
• Multiple self-monitoring and self-reporting requirements
depending on specific license requirements issued by
different environmental institutions
Type of existing licenses, their functions and
authorities responsible for issuing the licenses
No
Type of license
Main Function
Authorities
1
License to engage in
business/to operate an activity,
e.g. industrial licenses, mining
concessions, logging
concessions, license to
transport hazardous waste
Legality for operating an
activity and also used for
environmental protection
Sectoral ministries,
e.g. Ministry of
Industry, Mining,
Forestry, and
Transportation
2
Nuisance license
Protecting people from
smell and noise
Head of
Regency/Mayor
3
Site license
Insuring consistency with
spatial planning
Head of
Regency/Mayor
4
Building licenses
Insuring consistency with
spatial planning
Head of
Regency/Mayor
5
License to discharge waste
water
Water and soil pollution
control
Head of
Regency/Mayor
6
License to dump
Environmental protection
and pollution control
The Minister of
Environment
7
License to operate hazardous
waste facilities
Pollution control
The Minister of
Environment
Source: Rachmadi, 2006
Note: Number 1 usually referred as “environmental protection related” licenses and
number 2-7 usually referred as “environmental protection” licenses.
Key Challenges:
• The current license/ permitting
system related with
environmental management is
too fragmented (too many permit
requirements from different
institutions)
• Multiple monitoring and
inspection conducted by different
agencies, looking at different
things
• Multiple self-monitoring
requirements
• Lack of clear regulation and
guidance including sanctions
does not encourage industries to
submit self-monitoring reports
Recommendations
• Developing one integrated
licensing system
• “Green Business
License”: Environmental
requirements passed/
secured as a pre-requisite
to a business license
• layered supervision
system (first and second
line inspection)
• Reinforcement of selfmonitoring and selfreporting system with
appropriate guidelines
and sanctions
4. Law Enforcement Response
• Sources of Information on violations
–
–
–
public complaints
inspections
media,
–
self-monitoring reports
• Verifications and classification of violations
done at several levels
• Depending on type of violation, different
procedures are undertaken
• Legal ground for environmental institutions to
file lawsuits for public interest
The Flow of Law Enforcement Response (in MoE)
Detecting Violation:
Public Complaint, Direct finding in monitoring &
inspection, Mass media coverage
Verification
Environmental
Pollution/Damage Cases
Recommendation
for settlement by
concerned
authority
Not Environmental
Pollution/Damage Cases
“Subsidiary principle”
Criminal Cases
Recommendation for
business license revocation
by issuing authority
Recommendation for
government order by
Governor
Temporary suspension of
hazardous waste license
Mandatory Env. Audit
Warning Letter
Administrative Cases
Civil Cases
Negotiation
Civil Investigator
fail
Civil Proceeding
Police
Prosecutor
Court of General Jurisdiction
The Pyramid of Administrative Sanction
License Revocation
imposed by the authority who issuing the license
Substantial
Violation
License Suspension
imposed by the authority who issuing the license
Government Order or Payment of a certain sum of money
Imposed by the Governor/Head of Province
Mandatory Environmental Audit
imposed by Minister of Environment
Minor
Violation
Written Warning
imposed by the authority who issuing the license
Note: Government order mean ordering the responsible party to prevent, end occurrence
and deal with the consequences given rise to by an infringement, carry out safeguarding,
mitigating, or remedial measures at the expense of the responsible party.
Key Challenges:
• Limited scope of MoE in imposing
sanctions (only for haz waste/ dump to sea)
• Lack of consistency in imposing
administrative sanctions by the different
environmental institutions
• The investigation and prosecution of
criminal cases takes a long time
• Lack of consistency in adjudicating
environmental criminal and civil cases
Recommendations
• Develop clear guidelines
on the use of the different
administrative sanctions
at all levels
• Reinvention and
revitalization of ORES for
effective and efficient
investigation and
prosecution
• Certification program for
judges to handle
environmental cases and
research for the
establishment of Special
Environmental Courts
One Roof
• INSPECTOR
• INVESTIGATOR
• PROSECUTOR
Green Bench
5. Compliance Assistance and Data
Management
• Compliance Assistance:
–
–
–
–
National Cleaner Production Center
Website (www.menlh.go.id)
Guidance on environmental management for some industries
Technical assistance for waste management for small industries
(assisted in building &managing wastewater treatment facilities for small scale
industrial centers – tofu/tempeh and tapioca industries-- in 2006)
• Data Management:
– Still paper based and spread in various units in MoE
– Unclear SOP in handling information/ documentation
Recommendations
• Launch information and dissemination
campaigns to introduce compliance
assistance programs of MoE
• Develop a digitized, central depository of
compliance and enforcement data
6. Economic and Other IncentivesBased Instruments
• Existing programs and approaches
– Public Disclosure Environmental Performance Program (PROPER)
– Dispensation Of Imports Duties On Equipments And Materials Used To
Control Pollution
– Environmental Soft Loan for small industries
– Voluntary Environmental Audit
– ISO 14001 Environmental Management Voluntary Instrument
• No environmental tax/ pollution charge
system
Key Challenges
• Focus of programs heavily on reputation
incentives and technical assistance and
lacks approaches for performance-based
financial incentives/disincentives
• Lack of comprehensive, detailed and
operational legal mandate to develop
economic- based instrument
Recommendation
• Consolidate fund sources and establish an
Environmental Fund (including
environmental tax/ pollution charges)
3.7
Indicator to Evaluate Program Success
• MoE Guidance: Work Plan and Budget Formulation in the MoE
office (2006), uses (6) performance indicators (Input, Process,
Output, Outcome, Benefit and Impact)
• MoE 2005-2009 strategic plan document has used the outcome
indicator and output indicator.
Key Challenges
•
Most of MoE’s performance indicators are not clear, hard to
measure and not integrated
•
Baseline data is incomplete and capacity to gather information to
measure progress vis-à-vis indicators is still limited
Recommendations
• Issuing MoE guidance to develop
measurable and integrated C&E
Program success indicators
• Integrating and Improving Annual MoE
C&E Monitoring and Evaluation System
8. Public Participation
• Public rights on access of environmental information have been
guaranteed in the constitution and EMA
• Public participation incorporated in EIA process
• Public Complaint Mechanism: Guidance of the Management of
Complaint on the Pollution and/or Damage of Environment issued
by MoE
• Regional Management of Complaints: 12 Provinces out of 35 and 6
regency/city out of 448 has complaint posts
• In enforcement of administrative law, public has right to make
submissions to concerned environmental institutions to perform
government order
• MoE Public Perception Survey (2006): the public is not familiar with
MoE, its programs, authorities and role in environmental compliance
and enforcement
• In the enforcement of the civil law, the people may file for a claim by
either individual claim procedure or class action & NGO has legal
standing
• There is no citizen lawsuit (access of individual citizen for and on
behalf of public interests)
Key Challenges:
• Public complaint posts too few and not easily
accessible to public.
• Management of public complaints is still
centralized and slow.
• Lack of standard regulation concerning fixed
parameters for public involvement and
sufficient time period for the public to give
their input.
• Public access to justice remain limited:
limited legal aid and capacity of local NGO
(most of well-resources NGO are Jakartabased), SLAPP suits.
Recommendations
• Improve public complaint system by making
posts more accessible to public by using IT
possibilities (web interface, Hotline)
• Develop guidelines on feedback mechanisms
to the public on how complaints are handled,
including individual status
• Involve local legal aid institutions in capacitybuilding programs
• Maintains a referral network of pro bono and
low cost lawyers to assist rural
community/organizations in filing
environmental cases to the courts
Terima Kasih
(Thankyou)