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In early October, the House of Representatives in Indonesia, under the Presidency of Joko Widodo, passed the controversial Omnibus Law, amending 79 existing laws in one single bill. The legislation has been widely unpopular and has been heavily criticised by civil organisations, environmental groups and trade unions, causing massive protests in more than three dozen cities. The Omnibus Law is intended to boost Indonesia’s economy and create jobs by simplifying business permits and easing foreign investment restrictions, however, it does so at the expense of worker’s rights and environmental protections and could cause greater deforestation and biodiversity loss.

How Does the Omnibus Law Affect Indonesia’s Environment?

Among the most controversial articles of the Omnibus Law is the repeal of the current regulation requiring at least 30% of forest area to be conserved for each watershed area or island. According to the environmental NGO Madani, this removal opens the door for massive deforestation and can exacerbate the effects of natural disasters in a country already prone to floods, droughts and earthquakes.

The Omnibus Law also eases the requirements for businesses to carry out environmental impact assessments as a precondition to obtaining a business license and limits public consultation to only those who are directly affected by the specific project. Ultimately, this can lead to the issuance of business permits to companies that neglect the environment. It also prevents environmental organisations and members of the community that are more aware of the environmental impact from objecting to the project, since they may not be directly impacted.

Another significant amendment is the removal of the strict liability principle from the Forestry and Environmental Law, making it harder to prove and prosecute companies that set fire to their land in order to clear it for commercial purposes. According to Greenpeace, such practices, especially for palm oil plantations, have already burned 4.4 million hectares between 2015 and 2019 in Indonesia. The removal of the strict liability principle may ultimately lead to an increase in the conversion of rainforest to plantations, greenhouse emissions and endangerment of species, including the Sumatran orangutan. 

The introduction of the Omnibus Law jeopardises the significant environmental improvements Indonesia has achieved in the past several years. Since 2017, deforestation in the country has declined from one million acres a year to fewer than 250 000 acres a year, due in large part to the approval of more sustainable governmental policies, such as the moratorium on forest clearance and the commitment of 83% of palm oil refineries in Indonesia and Malaysia to the No Deforestation, No Peat, No Exploitation (NDPE) practices.

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The Omnibus Law May Deter Investors From the Indonesian Market

While the Omnibus Law aims to spur more domestic and foreign investment in the country, it contravenes the current investment trend towards sustainability and may ultimately deter investors. Within this context, 36 institutional investors managing USD$4.1 trillion signed an open letter highlighting their concerns regarding the environmental impact of the Omnibus Law. Additionally, the EU recently launched a public consultation on its initiative to reduce its contribution to deforestation worldwide, promoting the consumption of products sourced from deforestation-free supply chains. 

Lastly, the Omnibus Law stands in stark contrast to the growing global demand for sustainable commodities and the increased commitment by investors to incorporate environmental, social and corporate governance (ESG) into their investment decisions.

The government of Indonesia has lost an opportunity to strengthen its economy while protecting its natural resources, jeopardising the mid and long-term development of the country in a world where sustainable practices are becoming significantly more important.

Featured image by: Wikimedia Commons 

The Draft Environment Impact Assessment (EIA) Notification 2020 in India, drafted by the Indian Ministry of Environment, Forest and Climate Change (MoEFCC) with the intention to overhaul the process of environmental regulation of infrastructure projects, has been widely criticised for its “pro-industry” and “anti-environment” legislation clauses, which may regularise projects that violate environmental norms.

The Draft EIA Notification 2020 is a formal legal decision-making process enacted to examine, evaluate and predict the environmental impact of any developmental project or programme. According to the MoEFCC, this notification seeks to make the decision-making process more transparent and expedient “through [the] implementation of [an] online system, further delegations, rationalisation, standardisation of the process, etc.”. 

Many believe, however, that the notification was drafted in such a way that allows for industries to continue turning a blind eye to environmental concerns. Echoing the sentiments of many activists, environmental groups, students and biologists, Congress leader Rahul Gandhi described the notification as “a disaster [which] seeks to silence the voice of communities who will be directly impacted by the environmental degradation it unleashes.”

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Critics have particularly taken issue with how 40-plus types of industries – including but not limited to clay and sand extraction and the creation of solar thermal power plants – are exempt from prior environment clearance (EC) with the approval of expert committees or prior environmental permission or provision (EP) without the approval of expert committees. These industries were previously required to secure prior EC or EP. Further, some projects – such as irrigation, production of chemical fertilisers, acid manufacturing, and the development of roads, highways and buildings – are totally exempt from public consultation. 

Solar energy projects are likely included in this notification because they reduce our dependence on fossil fuels, however this overlooks environmental concerns such as the requirement of large land area, diversion of agricultural land and changes to drainage patterns brought on by the construction and operation of solar parks. 

The undertaking of an EIA is a minimum environment and social safeguard and the lack of them may discourage investment. For example, The World Bank, which funds solar projects in India, including the Rewa Solar Park in Madhya Pradesh, insists on an EIA before embarking on projects, something that this “anti-environment” draft legislation violates.

As many critics have argued, the notification’s endorsement of this ex post facto environmental clearance goes against the precedent set by the Supreme Court in the case Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, which had struck down such clearance as unconstitutional. In the words of the Supreme Court, “allowing for an ex post facto clearance essentially condones the operation of industrial activities without the grant of an EC (environmental clearance). In the absence of an EC, there would be no conditions that would safeguard the environment…” 

Further, the period for public consultation on projects has been reduced from 30 to 20 days, endangering the tenets of public participation. It even exempts massive construction projects under category B2 from having to conduct public consultations at all before seeking environmental clearance.

It also creates confusion as to how the country will embark on environmental projects in the face of its membership in the Rio declaration adopted by the UN in 1992, which calls for EIAs. They are also required under the Convention on Biological Diversity (CBD) and United Nations Framework on Climate Change (UNFCCC), both of which India is a party to, which both contain a requirement to have a prior EIA in situations having a significant threat to the environment. 

Accordingly, if the draft notification is passed as law in its current form, it will set a very bad precedent for the future. As environmental lawyer, Parul Gupta, wrote in a document by Vindhyan Ecology and Natural History Foundation, “the proposed safeguards of penalties and compensations are inadequate to counter the inevitable and irreversible ecological destruction. It is submitted that if the Draft Notification is implemented, it will ultimately lead to unscientific and unsustainable development.” 

Hopefully, the Ministry of Environment in India will take this outcry into account and withdraw or modify this “anti-environment” draft legislation. As Shibani Gosh – fellow, Centre for Policy Research and Advocate-on-Record, Supreme Court – reminds us, the Ministry of Environment needs to “be clear about its role – its mandate is to create and sustain a regulatory framework that prevents the plunder of our natural resources, not actively accelerate the pace of environmental devastation.”

Across the globe, the humanitarian impacts of environmental crime have created far-reaching implications among some of the most impoverished people in the world. Human rights are often contested and, arguably, cannot be universally applied, an issue which is further exacerbated within the context of environmental crime due to its very own lack of definition. Therefore, a fairly new concept of eco-human rights could be an acceptable approach to take to consider the issues of environmental crime and human rights collectively rather than separately. 

Environmental Crimes: Definition

Environmental crimes are often committed by large international corporations, such as BP or Shell, who more often than not have leverage within governments and global political organisations through lobbying parliamentary, international and regulatory bodies to ensure that any laws that are passed are, to an extent, in their favour, therefore allowing them to continue harmful environmental practices. 

The main infliction of human rights through environmental crime is the right to a safe living environment, access to clean water and food sources. Often, it is those in developing nations who suffer most and, through their government’s need for money and the persuasive nature of capitalist and money hungry corporations, feel the harsh impacts of pollution through, for example, oil spills and deforestation and the consequential domino effect as pollution engulfs ecosystems. In addition, the economic inequalities already affecting developing nations are further exacerbated as corporate environmental crime is uncovered. 

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Corporate environmental crime often goes under the radar as many of these acts are only morally wrong and may not constitute a crime, making it difficult to police. For example, a corporate body can transport oil from its place of origin to its destination which may result in a significant oil spill during its journey, thus damaging the food chain and wildlife, having far reaching consequences for both non-human and human species. However, it is incredibly rare that such acts result in criminal sanctions being brought and, more often than not, results only in financial sanctions for those involved. According to the United States Environmental Protection Agency (EPA), only civil actions were brought against BP, which ended in a settlement in excess of $14 billion. 

In April 2010 the Deepwater Horizon, an offshore oil rig, exploded, killing 11 people and releasing an estimated 4.9 million barrels of oil into the ocean. This explosion resulted in obvious consequences to the environment and local industries, such as fishing and tourism. Plants and animals were completely covered in oil and marine wildlife was found dead on local beaches and coastal areas. Fish stocks were significantly lowered, affecting the livelihoods of local people. Although the Deepwater Horizon explosion was one of the largest the US had seen, it is thought that the warmer waters aided a natural healing process by breaking down the oil in the water. 

BP reportedly worked with the US Government and other state-corporate actors to conceal the amount of environmental harms consequential to the explosion of Deepwater Horizon. It has been reported that actually, 134 million gallons of oil leaked into the ocean, damaging what was a diverse and rich habitat for many marine animals. In addition, during the clean up operation, a chemical known as Corexit was released in an attempt to disperse the oil spill however, this was not done until some time after the initial explosion, something which BP has been heavily criticised for. For months after the explosion, it is estimated that oil continued to contaminate the ocean floor and it is not clear whether contamination is still continuing a decade after the initial event. The effect on the food chain was devastating, with heavily concentrated populations of plankton affected, thus, also contaminating whales and other marine life which rely on plankton as a source of food. This also affected local communities who used the Gulf of Mexico as not only a tourist hotspot but as an integral part of their source of food. Therefore, it is impossible to estimate the likely deaths and/or illnesses caused as a result of the contamination. 

It has also been estimated that immediately after the spill, an estimated 1 300 miles of coastline recorded higher than usual oil concentrations, an effect which continued to show almost eight years after the event. Research is still ongoing into the effects of the oil spill and how much of the biodiversity found here has been affected, but it is estimated that it could take decades for much of the wildlife to recover.

The argument remains as to whether this could constitute a state-corporate orchestrated crime against the environment being committed. 

Environmental crime is, technically, an illegal act committed by a person or organisation which incurs ‘significant harm or risk to the environment and human health’. However, the problem with policing environmental crimes is that, although they have the potential to cause significant harm and damage to life, it provides high profit margins and low risk for those involved, meaning the acts go relatively undetected and, therefore, tough to police. The European Commission has attempted to tackle environmental crime and have gone as far as to propose a directive to ensure the protection of the environment through criminal law in 2008, but it is up to each individual member state to adopt the directive into their own domestic legislation. 

Unfortunately, until criminal sanctions are imposed upon the perpetrators of environmental crime, it is a problem which is very much alive. Many perpetrators of such acts receive fines which would not cause corporations significant financial harm. Therefore, there is much more progress to be made in the war against environmental crime to ensure a cleaner, greener and safer planet for future generations. 

Featured image by: Office of Response and Restoration

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