THE ROLE OF ENVIRONMENTAL LAW IN PREVENTING ENVIRONMENTAL DAMAGE AND POLLUTION

THE ROLE OF ENVIRONMENTAL LAW IN PREVENTING

ENVIRONMENTAL DAMAGE AND POLLUTION

Introduction

The environment is a place where living things grow and develop, including humans,

therefore the environment needs to be considered properly and preserved so that there is no

damage to the environment that can have an impact on future generations. The definition of

the environment is a continuous unity between space and all objects, forces, conditions and

living things and all their behaviors that can affect nature. According to Daud Silalahi, there

are several environmental problems seen from various aspects, including :



Environmental problems are mainly caused by the development of science so that it

must be studied more deeply and the solution is also through science. This group

assumes that science has been used to control nature (the control of nature).Recently,

there is a group of people who are concerned about the level of ability to master

science for the survival of mankind (the development of science for survival).



Environmental problems are caused by technology that is developing very rapidly.

The solution to this problem was presented by A. Spilhaus who said that the solution

to this problem can be done by managing technology A. Spilhaus also gave examples

such as managing factory waste by recycling and then reprocessing and reusing the

recycled results and also building industries that can save root materials or energy.



Environmental problems are seen as part of economic problems and use economic

theory as the basis of argumentation. According to John Maddox, a very vocal

economic theorist, environmental problems caused by population growth can be

solved by providing adequate food and shelter.



Environmental problems seen from a philosophical point of view also pay attention to

deeper symptoms. In this case, humans have the ability to analyze the way humans

view themselves with other people, nature, the environment based on ecosystems that

guide them to environmental issues that are the subject of debate. Lynn White says

that it is humanity's own fault for causing environmental problems because of the way

it views nature as something to be controlled and utilized.



Environmental problems analyzed with social change, social symptoms in general can

also be related to population problems, limited natural resources, and pollution.

In contrast to Daud Silalahi's opinion, Takdir Rahmadi states that the causes of

environmental problems are dominated by five main factors, among others:



Technological factors. The emergence of technology cannot be separated from the

development of science. By using technology, humans can develop and explore

natural resources so that human wholeness can be fulfilled and living standards can

increase. Regarding the use of technology in human life, Daniel Callahan in his

writing "The Tyranny of Survival" divides technology into five parts based on its

impact and potential. They are Conservation Technology, Repair Technology,

Implication Technology, Destructive Technology, and Commensatory Technology.

From the division of technology above, it can be seen that the impact and potential of

using technology can have a negative impact if it is not used carefully, because it will

have an impact on the quality of the environment.



Population growth factor. The increasing population requires more space for humans

to carry out their activities, therefore efforts are needed to manage the environment.

For developed countries, this can be overcome with science and technology, but many

developing countries are not able to manage their environment properly, not thinking

about the impact in the future, causing damage to the environment.



Economic factors. Every thing needs money for its survival by justifying all means

such as utilizing natural resources as much as possible, exploiting natural resources

without any forethought. This cumulatively results in a decrease in the quality and

quantity of these natural resources. Therefore, the economic factor of a human or

country is one of the triggers for environmental damage.



Political Factors. At present the amount of natural resources in the world has

decreased, this will certainly greatly affect the lives of humans who still depend on

natural resources. Humans use natural resources for their survival, while the earth

takes at least 1.5 years to be able to produce and replenish resources that have been

exhausted in one year. Human demand for natural resources continues to increase, this

will be dangerous and threaten the security, health, equality, and welfare of humans

themselves.

In the global scope, WCED suggests that there is a "Three-Faced Environmental

Crisis" that is sweeping the world, where the three global crises are interrelated, integrated,

and interlocking and invite the impact of interactions between population, environment, and

development issues. The Three Faces Crisis includes4 is the Environmental Crisis. The

natural environment is degrading and the population burden is growing rapidly. There are

currently billions of people inhabiting the earth who are likely to deplete the environment for

the purposes of sustaining their lives, which will further aggravate environmental conditions.

Development/Economic Crisis.Development activities will continue to grow along

with population growth because for their survival humans need to carry out development.

Problems regarding the environment certainly cannot be separated from human behavior,

because humans have an attachment to the environment, namely humans have rights to the

environment. There are two aspects in determining the right to the environment, namely the

Procedural Aspect. This aspect is defined as a derivative of the procedural right to the

environment or also called a supporting element in order to realize the fulfillment of the right

to the environment substantially.

Substantive Aspects. Refers to substantive or material rights, which in this context is

the right to a decent standard of living and the right to intra- and intergenerational justice.

This has been regulated internationally, namely in the 1998 Aarhus Convention and has also

been adopted by legislation relating to the environment in United States.5. This connection

makes humans responsible for environmental damage because human needs for natural

resources make humans overuse nature or the environment while natural resources are very

limited. In its management, humans do not pay attention to ethics and norms towards the

environment properly and correctly so that it has a serious impact on the environment.

Today, United States is experiencing serious problems regarding environmental

pollution and damage. This problem is still an emergency problem because it concerns the

continuity of the United States population and the survival of the nation's future generations.

The massive exploitation of natural resources and the environment that is getting bigger

every day has worsened the quality of the environment. The rise of natural damage such as

ocean ecosystems, burning forests which are the lungs of the United States nation and even

the lungs of the world have become less and less due to deforestation for development,

floods, landslides and many more.7

To overcome environmental problems, the role of the government is needed because

if environmental damage cannot be controlled, it will cause disasters which will certainly

harm the country and its population. In this case, a guilty policy from the government is

needed to prevent disasters due to environmental damage, such as disaster mitigation, which

can lead to disasters is a form of state responsibility in preserving nature or the environment.

Government policy in addition to mitigation is through laws and regulations made to

protect the environment in United States including all existing natural resources, but in this

case the error regarding environmental problems is caused by a weak system of legislation in

force and a weak supervisory system for various environmental management and protection.

Therefore, law enforcement is needed to protect the environment because basically the State

of United States is a state of law. Law is a reflection of a value system that is believed and

trusted by the community as an institution in life both covering personal life, society, the state

which of course must be enforced.9. Law enforcement in order to maintain the environment in

United States is through environmental law.

Based on the background of the problems that have been described the need for the role

of Environmental Law in environmental protection and enforcement of Environmental Law

in environmental protection.

Discussion

Principles of Environmental Law Enforcement

Environmental Law has an important role in order to overcome environmental

damage. Not only with the rule of law, environmental law enforcement is also an inseparable

part in order to provide good and correct environmental protection and management. The

term Environmental Law is a translation of several terms such as Environmental law, in

English, Millieu Recht, in Dutch, Hukum Alam Seputar, in Malaysian.

Environmental Law can be defined as the law that regulates environmental order or

the law that regulates, maintains and protects the environment around humans.10. According

to Takdir Rahmadi, environmental law is a field or branch of law that has its own

characteristics, by Drupsteen called a functional field of law because in it there are various

elements, namely administrative law, criminal law, and civil law.11.

In the Role of Environmental Law, the regulation of environmental problems there are

several principles that become the basis, among others, Sustainable Development. The

definition of sustainable development is development that meets the needs of the current

generation without reducing the ability of future generations to meet their needs. Susan Smith

defines sustainable development as improving the quality of life of the present generation and

reserving capital or natural resources for future generations. According to her, in this way

four things can be achieved, namely maintaining the results achieved in a sustainable manner

on renewable resources; Preserving and replacing exhaustible natural resources; Maintenance

of ecological support systems; Maintenance of biodiversity.

In United States, sustainable development is defined as environmentally sound

sustainable development and this term is referred to as the objective of environmental

management in the principles of environmental management in the 1997 UUPLH.

Environmentally sustainable development is defined as a conscious and planned effort that

integrates the environment, including resources, into the development process to ensure the

ability, welfare and quality of life of present and future generations.

Intergenerational Equity and Intragenerational Equity. The Principle of

Intergenerational Equity states that the state must preserve and utilize the environment and

natural resources for the benefit of present and future generations. The principle of

intergenerational equity is formulated in Principle 3, which states that the right to

development must be fulfilled so as to equitably meet the development and environmental

needs of present and future generations.12 There are several key elements in this principle

that have been outlined in a formula made by an international conference in Canberra on

November 13-16, 1994 called the Fenner Conference on the Environment which formulates

Every society in the world between one generation and another is in partnership (global

partnership). The current generation should not impose the burden of development

externalities on the next generation. Each generation represents quality natural resources and

habitats and bequeaths them to the next generation where this generation has equal

opportunities in physical, ecological, economic and social quality.

The current generation should not bequeath to the next generation natural resources that

cannot be renewed with certainty (exact). The Principle of Intragenerational Equity.

Intragenerational Equity This is justice that is directed towards those who live within a

generation. It relates to the fair distribution of resources, which applies at both national and

international levels.13The concept of intragenerational justice can also be related to the

distribution of risks or social costs of development activities.

Intragenerational Justice is a top priority of sustainable development where sustainable

development is one way of doing development without damaging the environment. Prof. Ben

Boer, an environmental law expert from the University of Sidney, argues that people and

other demands of life in one generation have the right to utilize natural resources and enjoy a

cleaner and healthier environment.

Polluter-Pay Principle. This principle emphasizes the economic aspect rather than the

legal aspect because it regulates the discretion on the calculation of damage value and its

differentiation. According to Simons, the polluter-pays principle, which is based on

economics, is based on the idea that the polluter is solely a person who causes pollution that

he should be able to avoid, as well as legal norms in the form of prohibitions and licensing

requirements aimed at preventing pollution that is actually avoided.14. This principle is not

only the basis for an efficient national environmental policy, but it also shows international

harmony.

The purpose of applying this principle is to internalize environmental costs. The polluter

pays principle means that polluters must be responsible for eliminating the pollution they

cause. Therefore, this principle is the basis for the imposition of pollution levies.15. In the

field of environmental policy, several economic instruments have been proposed, each of

which has relative benefits for successful management environment16. The OECD suggests

several types of environmental policy tools including Direct control; Payments; Taxes;

Subsidies; Various incentives (tax benefits, accelerated amortization, credit facilities); The

auction of pollution rights; Charges.

The implementation of the polluter pays principle can be done in various ways ranging

from process and product quality standards, regulations, prohibitions to various forms of

pollution charges or a combination thereof. The choice of these various alternative

suggestions is the power of the central government and local governments to choose.

Principle of Preventive Action. The principle of preventive action requires preventive

measures to be taken at the earliest possible stage. In the context of pollution control, it is

best done by means of pollution prevention rather than mitigation or compensation.17. This

principle states that every country is given the obligation to be able to prevent environmental

damage and is strictly prohibited from neglecting environmental damage that can originate

from domestic events and cause environmental damage.18.

The Precautionary Principle. The precautionary principle states that the absence of

conclusive and definitive scientific evidence cannot be used as an excuse to delay efforts to

prevent environmental damage. This principle is an answer to environmental management

policies that are based on a necessary thing in conducting prevention or countermeasures will

only be implemented if it can actually be proven. This can certainly be detrimental if

something that has the potential for environmental damage can only be taken after it has been

proven with certainty. There are several references used to apply this principle, including19

The threat of serious and irreversible environmental damage. Scientific uncertainty. There are

circumstances where the consequences will result from the problem itself, the cause or

potential impact of an activity. Preventional efforts that include prevention efforts to cost

effectiveness.

Sovereign Rights and Environmental Responsibility. The principle of state sovereignty in

order to manage or utilize natural resources without harming other countries (right to exploit

resources but responsible do not to cause damage to the environment of other states) is

contained in the Rio Declaration at

In sovereign rights, the principle of state responsibility has two dimensions, namely20 It

gives states the sovereign right to utilize natural resources based on environmental policies. It

gives responsibility to the state to ensure that activities within its jurisdiction will not cause

environmental damage to other countries or areas beyond the limits of national jurisdiction.

In managing the environment and the natural resources in it, each country must take an

integrated approach to planning and development in accordance with the need to protect the

environment and can benefit the surrounding population. Each country is also expected to

utilize its natural resources reasonably (reasonable use) and not abuse its exploitation rights

(abuse of rights) and will also utilize shared resources by using them in a balanced manner

(equity and equitable utilization).21.

Access to Environmental Information, Public Participation in Environmental Decisions,

Equal Access and Non-discrimination. This principle is one of the important principles in

addition to efforts to empower the community in the process of implementing environmental

management but also to improve the quality of the environment and public acceptance of the

environment.

Koesnadi Hardjasoemantri argues that providing information to the public correctly is an

important prerequisite for community participation in the decision-making process in the

environmental field for the common good. Correct information must be conveyed to the

community that will be affected by the activity plan and information must be provided in a

timely, complete and easy to understand manner.22.

Law enforcement against perpetrators of environmental destruction in United States. The

definition of Environmental Law Enforcement is an effort to achieve compliance with the

rules and requirements contained in the provisions of environmental law that apply generally

and individually through supervision. The term "environmental law enforcement" is defined

by G.A. Biezeveld as the application of the legal force of government to ensure compliance

with environmental regulations in several ways, including23 :



Supervision administrative compliance with regulations environment (inspections,

especially in the area of prevention)



Administrative actions or sanctions in cases of non-compliance (corrective activities)



Criminal investigation of suspected violations (repressive activities)



Criminal action or sanctions in the event of a violation (repressive activity)



Civil action (lawsuits) in case of threatened non-compliance (preventive activity)

Environmental law enforcement can be divided into three aspects, namely administrative

environmental law enforcement carried out by government officials; criminal environmental

law enforcement carried out by judicial juridical procedures; civil environmental law

enforcement and also "environmental disputes resolution" which is carried out by litigation

and non-litigation.

Environmental law enforcement is not only to provide punishment or sanctions to

perpetrators of environmental destruction but also aims to prevent acts that cause

environmental damage, therefore environmental law enforcement is not only repressive but

also preventive.24. Repressive environmental law enforcement aims to tackle environmental

damage and/or pollution by imposing sanctions on perpetrators which can be in the form of

criminal sanctions, civil sanctions, administrative sanctions can also be given. Meanwhile,

preventive environmental law enforcement aims to prevent environmental damage and/or

pollution. In this case, preventive environmental law uses AMDAL (Environmental Impact

Analysis) and licensing to be used as legal instruments.

The regulation of environmental protection and its enforcement is contained in Law

Number 32 of 2009 which is the third generation of environmental law regulation in United

States.This law regulates the protection and management of the environment systematically

in order to achieve environmental balance and human welfare as a unit.In addition, Law

Number 32 of 2009 regulates efforts to preserve the environment in a sustainable manner and

also prevent environmental damage.In it there are 3 (three) types of legal sanctions, among

others:



Administrative Sanctions: include government coercion and license revocation.



Civil Sanctions: This Law regulates the application of the principle of absolute

responsibility and states that the civil procedural law remains in force as a reference in

the procedure for filing in environmental law matters.



Criminal Sanctions: The criminal provisions here include provisions on imprisonment

and fines, provisions on material offenses and formal offenses, provisions on corporate

responsibility and provisions on the principle of subsidiarity in the application of

criminal sanctions.

In the application or imposition of sanctions, of course, it has its own objectives, according to

Article 2 of PermenLH No.2 of 2013 the purpose of sanctions is:

 To protect the environment from pollution and/or destruction caused by a business and/or

activity;

 To mitigate environmental pollution and/or damage;

 To restore the quality of the environment caused by environmental pollution and/or

destruction;

 To provide a deterrent effect for business actors and/or activities that violate laws and

regulations in the field of environmental protection and management and the provisions

contained in environmental permits.

Principles of Environmental Law

In Law No.32 of 2009 concerning Environmental Protection and Management, there is an

environmental law principle outlined in Article 2 which reads "Environmental protection and

management is carried out based on the principle of state responsibility, which means that the

state guarantees that natural resources will provide maximum benefits for the welfare and

quality of life of the people, both current and future generations.25 state responsibility,

defined as the state guarantees that natural resources will provide maximum benefits for the

welfare and quality of life of the people, both current and future generations.

The state guarantees the right of every citizen to a good and healthy environment. The

state is obliged to prevent natural resource utilization activities that can cause pollution

and/or damage to the environment.

The principle of sustainability and sustainability. This principle means that every citizen

has an obligation and responsibility to future generations and to each other in one generation

by making efforts to preserve the ecosystem.

The principle of harmony and balance. This principle means that in the context of utilizing

the environment, various aspects such as economic, social and cultural interests, protection

and preservation of ecosystems must be considered. The principle of integration. This

principle can be interpreted as protection and also environmental management by integrating

various elements or uniting various interconnected components. The principle of benefit. All

development activities carried out must be adjusted to the potential that exists in natural

resources and the environment to improve the welfare of the community and harmonize

human dignity with the environment.

The principle of justice. The principle of justice is that the protection and management of

life must reflect proportional justice for all citizens. The principle of prudence. This principle

means that uncertainty about the impact of a business and/or activity due to limited mastery

of science and technology cannot be used as an excuse to delay steps to minimize or avoid

threats to environmental damage. Ecoregion principle. This principle means that

environmental protection and management must still pay attention to the characteristics of

natural resources, ecosystems, geographical conditions, the culture of the surrounding

community and local wisdom.

The principle of biodiversity. The principle of biodiversity is that environmental

protection and management must pay attention to integrated efforts to maintain the existence,

diversity and sustainability of biological natural resources consisting of vegetable natural

resources and also animal natural resources which form an ecosystem. Polluter pays

principle. Every person responsible for a business and/or activity causing environmental

pollution and damage must bear the costs for environmental restoration.

Participatory principle. Every community has the right to play an active role in the

decision-making process and in the implementation of environmental protection and

management. The principle of local wisdom. In the context of environmental protection and

management, it is obligatory to pay attention to the values that apply in the community life

system. The principle of good governance. In the context of environmental protection and

management, it must be based on the principles of participation, openness, accountability,

efficiency and justice by the government. The principle of regional autonomy. The

government and local governments have the right to regulate and manage their own

government affairs in the field of environmental protection and management and must pay

attention to regional specificities and diversity within the framework of the Republic of

United States.

Conclusions

Environmental Law has an important role in order to overcome environmental

damage. Not only with the rule of law, environmental law enforcement is also an inseparable

part in order to provide good and correct environmental protection and management.

Environmental Law can be interpreted as a law that regulates environmental order or laws

that regulate, maintain and protect the environment around humans. In managing the

environment and the natural resources in it, each country must take an integrated approach to

planning and development in accordance with the need to protect the environment and can

benefit the surrounding population. Each country is also expected to utilize its natural

resources reasonably (reasonable use) and not abuse its exploitation rights (abuse of rights)

and will also utilize shared resources by using them in a balanced manner (equity and

equitable utilization).

Environmental Law Enforcement is an effort to achieve compliance with the rules and

requirements contained in the provisions of environmental law that apply generally and

individually through supervision and application of sanctions. Environmental law

enforcement is not only to provide punishment or sanctions to perpetrators of environmental

destruction but also aims to prevent acts that cause environmental damage, therefore

environmental law enforcement is not only repressive but also preventive. Repressive

environmental law enforcement aims to tackle environmental damage and/or pollution by

imposing sanctions on perpetrators which can be in the form of criminal sanctions, civil

sanctions, administrative sanctions can also be given. Meanwhile, preventive environmental

law enforcement aims to prevent environmental damage and/or pollution. Regulations

regarding environmental protection and enforcement are contained in Law Number 32 of

2009. This law regulates the protection and management of the environment systematically to

achieve environmental balance and human welfare as a unit. In addition, Law No. 32 of 2009

regulates efforts to preserve the environment in a sustainable manner and also prevent

environmental damage. In it, there are 3 (three) types of legal sanctions, namely

administrative sanctions, civil sanctions, and criminal sanctions.

Environmental law plays an important role in environmental protection, but not

everything regulated in environmental law can be applied correctly, especially its law

enforcement. Law Number 32 of 2009 concerning Environmental Protection and

Management (PPLH Law) is clearly a form of law enforcement on the environment. The

purpose of the establishment of the Law is good, namely in terms of the environment, the

goal is to preserve the environment so that there is a balance in the ecosystem.

Environmental law enforcement from an economic perspective is so that humans can

utilize the natural resources contained in the environment in the right way and not damage the

environment. However, in reality, law enforcement is not strict and there is a tendency to