CC BY
13
THE CURRENT POSITION OF ENVIRONMENTAL APPROVAL POST-JOB CREATION LAW: ENSURING THE INDONESIAN SDGS ACHIEVEMENT
SRI WINARSI1, WILDA PRIHATININGTYAS2*, INDRIA WAHYUNI3, ZUHDA MILA FITRIANA4, ALI RAHMAN5
Postgraduate School, Universitas Airlangga1
Faculty of Law, Universitas Airlangga2,3 Faculty of Law, UPN Veteran Jawa Timur4 Faculty of Law, Universitas Sawerigading5 *Corresponding Author: [email protected]
Abstract - This paper aims to identify and analyze characteristics of environmental permits and/or environmental approvals as prevention instruments for pollution and ecological damage. This also examines the urgency of simplifying licensing the environment as part of the ease of doing business. This paper applies the participatory empirical juridical research method, involving discussions and interviews with several related parties. This method is supported by the statutory and conceptual approach, using regulation materials and academic writings as primary sources. This paper highlights the figure of environmental approval law in the context of business licensing. However, implementing ecological approval law should be inherent in the principles of sustainable development goals (SDGs). This paper presents new information about a figure of environmental approval law in the context of business licensing after the enactment of the Job Creation Law.
Keywords: Environmental Licensing; Environmental Approval; Job Creation Law; EoDB, SDGs.
Table of Contents
INTRODUCTION
CHARACTERISTICS OF ENVIRONMENTAL PERMITS OR ENVIRONMENTAL APPROVALS AS INSTRUMENTS TO PREVENT POLLUTION AND ECOLOGICAL DAMAGE: PRE AND POST-JOB CREATION LAW
1. Concept of Permit as an Instrument of Community Control and Characteristics of Environmental Permit
2. Conceptual and Implementation Analysis of Environmental Licensing Mechanisms: Pre and Post-Job Creation Law Regime
THE URGE FOR REPOSITIONING OF ENVIRONMENTAL APPROVAL TO ACHIEVE SDGS
1. The Environment in The Logic of SDGs Sustainability
2. Challenges of Implementing Business and Environmental Agreements for the Achievement of National SDGs 2030
CONCLUSION
LIMITATIONS AND FURTHER STUDY
ACKNOWLEDGEMENT
REFERENCES
INTRODUCTION
The Job Creation Law has caused various reactions in society since its enactment. On the one hand, the purpose of the passage of the law is to create a favorable investment climate. On the other side, the government is required to guarantee the substance of the Act's prosperous ease of doing business processes and not violate the principles of sustainable development. One of the crucial changes in the law, namely the abolition of the terminology of environmental permits as regulated in the 2009 Environmental Protection and Management Law, was amended with environmental approval. An environmental permit is an authorization provided during the planning stage that is required before a business license may be issued. The environmental approval in the Job Creation Law is optional for
giving a business license as previously stipulated. Still, environmental approval is part of the business license itself. In other words, environmental approvals are integrated with business licensing.
This study analyzes two main issues. First, the characteristics of environmental permits or environmental approvals as an instrument for preventing pollution and environmental damage. Second, the urgency of simplifying environmental licensing as part of the ease of investment will support the achievement of the National SDGs 2030. Based on this analysis, a conclusion will be reached regarding the legal figure of environmental approval in company licensing following the passage of the Job Creation Law. Moreover, this research is empirical juridical research combined with participatory (participatory study) involving discussions and interviews with several related parties. This is also supported by the statutory and conceptual approach, using regulation materials and academic writings as primary sources.
This research is different from previous research related to environmental permits because the focus of this research is a new legal model/figure in the environmental field; environmental approval. Theoretically, there has been no study on this matter, so the authors aim to provide basic theoretical research to support further critics and discourses of environmental approval. As a result, this study suggests repositioning environmental approvals as a top priority in the risk-based business licensing mechanism that applies in Indonesia.
CHARACTERISTICS OF ENVIRONMENTAL PERMITS OR ENVIRONMENTAL APPROVALS AS INSTRUMENTS TO PREVENT POLLUTION AND ECOLOGICAL DAMAGE: PRE AND POST-JOB CREATION LAW
1. Concept of Permit as an Instrument of Community Control and Characteristics of
Environmental Permit
A permit is an agreement between authorities based on laws or government regulations to diverge from the restriction provisions of rules and regulations in certain instances. Permission can also be interpreted as a dispensation or exemption from a prohibition. Bagir Manan postulated that permission, in a broad sense, is an agreement from the authorities based on laws and regulations that allow specific actions or actions to be generally prohibited. The permit is a legal instrument that controls the behavior of people or institutions that are preventive [1] because the permit instrument cannot be released with orders and obligations that the permit holder must obey. [2] In addition, the function of permits is repressive. Permits can function as an instrument to overcome environmental problems caused by human activities attached to the basis of permits. As the government instrument, permits function as the spearhead of legal instruments as directors, engineers, and designers of a just and prosperous society.
The phrase "environmental permit" is sometimes used in the area of the environment. According to Alan Gilpin, Environmental Permit is a legal document according to the law to give permission either intended for individuals or organizations to dispose of waste (in the context of a waste disposal permit) to the environment with specific limitations. The carrying capacity and the capacity that environmental conditions can carry out are the limits in consideration. All the rules can be used to assess ecological needs. [3] In environmental licensing, these elements shall be considered: [3]
a. Environmental permits were utilized to set limits on the types of activities to protect the environment;
b. The environmental permit may stipulate requirements for monitoring and reporting on compliance with the conditions specified in the license;
c. An environmental permit may stipulate the possibility of monitoring the impact of an activity on the environment; and
d. Environmental permits can set requirements regarding operational management.
The functional meaning of environmental permits in preventing pollution and ecological damage is reflected in the accuracy or certainty in fulfilling the requirements of the environmental permit itself:
"There are many cases where enforcement of general environmental regulations and standards, alone, is insufficient to protect the environment effectively. In these cases, it is useful for additional and site-specific environmental control conditions to be applied throughout continuing operations. This can be accomplished by attaching necessary conditions unique to the individual
activity to the ecological protection and pollution control license for that operation, and enforcing those conditions." [4]
It is through these licensing requirements that the environmental permit instrument has an essential meaning in the context of preventing environmental pollution as well as for assessing the performance of a company's ecological management:
"An environmental protection license is a tool that an environmental agency can use to impose conditions on the operations of a particular premise or site to strengthen its environmental management and performance-It is a license to operate and to control pollution (not a "license to pollute"), subject to several site-specific conditions. The license conditions control the actual or potential environmental impacts from the site" [4]
Environmental permit requirements must be carefully poured. The ecological permit issued only hits the target for the benefit of environmental protection if the licensing conditions are explicitly stated; they must be firmly, precisely, directed, measurably, and applied. The ecological permit requirements accommodate all forms of essential environmental protection components, namely:
a. standard requirements ("standard conditions")
b. limit conditions ("limit conditions")
c. operating conditions ("operating conditions")
d. monitoring conditions("monitoring conditions"),and
e. reporting requirements ("reporting conditions"). [4]
2. Conceptual and Implementation Analysis of Environmental Licensing Mechanisms: Pre and
Post-Job Creation Law Regime
The 2009 Environmental Protection and Management Law controlled the environmental licensing process before implementing the Job Creation Law as a form of the prevention principle taken by a country on ecological circumstances in its sovereign territory. According to the Environmental Protection and Management Law 2009 (Law No.32/2009 concerning Environmental Protection and Management), environmental permits are requirements for obtaining business permits or business activities that affect the environment [5]. At this point, the traditional licensing concept has entered the early phase of integrated permitting, [6] as expressed in the KLHS concept, and incorporated into other business licenses that require environmental permits. In line with the government's expectation to develop the economy through efforts to accelerate investment, this model is further developed by uniting several licensing requirements into an integrated system. This was manifested in the regulation of the Job Creation Law, which also regulates the change in the concept of environmental permits to environmental approvals in Article 13 letter b. Furthermore, the mention of ecological licenses can also be found in Article 21, which emphasizes that environmental approvals are intended to provide convenience for everyone to remove several provisions related to Business Licensing related to the environment (previously regulated in Law No.32/2009) [7].
Environmental approval is a permit instrument that must be owned by business actors (business activities), both with essential and non-essential impacts, as a prerequisite for issuing business permits or government approvals in running a business as regulated in Article 3 GR No.22/2021 concerning Implementation of Protection and Management Environment (GR No.22/2021). Furthermore, the form is ruled in Article 1 point 4 of GR No. 22/2021 as an Environmental Feasibility Decree or a Statement of Environmental Management Ability approved by the authorized official [8]. At this point, the practice of integrated permitting has entered a new phase in licensing in Indonesia.
At the beginning of the terminology change, a perception was born that there was a shift in environmental principles and norms regulating environmental policies in Indonesia to support national economic achievements. One of the community's criticisms is the loss of public participation access, as in the 2009 Environmental Protection and Management Law. Previously, the public, in general, might complain about plans or corporate activity; however, in the current process, only persons are directly affected. Who can provide input and views? [9] The community then considers this to limit the existence of participatory principles as part of sound governance principles in environmental
management activities. Another criticism is the abolition of Environmental Impact Analysis (EIA, from now on) as an ecological protection document.
The view above was refuted by the record of the socialization of the Job Creation Law in the Ministry of Environment and Forestry's National Work Meeting, which declared that the environmental principles and norms had not been affected in the least. Changes made to technical simplification and procedures that can support the ease of doing business in Indonesia. The same thing was conveyed by the Secretary General of the Ministry of Environment and Forestry, Bambang Hendroyono, in the webinar "Rearranging Forest Utilization Permits with Environmental Approval," explaining that this policy change remains relevant to efforts to maintain environmental quality. Ecological principles and documents must precede all sorts of companies in all industries. The Job Creation Law further states that it reforms business licensing, which was previously permit-based to risk-based. Business licensing reform lies in three business time points of view: establishing a business entity, starting a business, and business implementation. This follows the legal politics of the birth of the Job Creation Law, namely to provide convenience to business actors in obtaining environmental approvals while still complying with applicable environmental protection provisions [10]. In general, EIA and Environmental Management Effort/ Environmental Monitoring Efforts are relatively the same as the previous arrangement concept. This can be explained in the following table:
Mandatory requirements for an Environmental Permit as a Pre-Job Creation Law
Impact Classification Statement of Environmental Management and Monitoring Undertaking (SEMMU) Environmental Management/Monitoring Efforts Environmental Impact Assessment
Significant Impact Article 22-33 Environmental Protection And Management Law 2009 No Need No Need Compulsory (Ministry of Environment and Forestry Regulation No.5/2012)
Insignificant Impact Article 34 Environmental Protection And Management Law 2009 No Need Compulsory (Regulated in the Major or Governor Regulation) No Need
Non-Environmental Management Effort/ Environmental Monitoring Effort-based business, and Insignificant-impact classified Article 35 Environmental Protection And Management Law 2009 Compulsory No Need No Need
Mandatory requirements for Environmental Approval and Business Licensing (Post-Job Creation
Law)
Risk Classification Business Identification Number Environmental Management Effort/ Environmental Monitoring Effort EIA Standard Certificate/ Product Certificate
Low Risk Compulsory (applied as SEMMU) No Need No Need No Need
Mid-Low Risk Compulsory (applied as SEMMU) - (Non-Environmental Management Effort/ Environmental Monitoring Effort-based activities) Required (Environmental Management Effort/ Environmental Monitoring Effort-based business activi ties) No Need No Need (Need a statement)
Mid-High Risk Required (Regional or Central Government Verification)
High Risk Compulsory No Need Compulso ry Required, Regional or Central Govt Verification
In addition to the nomenclature changes, significant changes to implementing command and control over this environment occur in the approach used. The method used in the 2009 Environmental Protection and Management Law is the Licensed Approach, or the "Regulatory Approach". Whereas in the Job Creation Law, environmental approval uses a Risk-Based Approach known as the "Risk-Based Approach." In the 2009 era of Environmental Protection and Management Law, essential documents such as EIA and Environmental Management Effort/Environmental Monitoring Efforts are mandatory documents for applying for permits for different types of business activities based on their categories that are adjusted to the local spatial plan. Procedures before the enactment of the Job Creation Law are regulated in GR No .27 of 2012 concerning Environmental Permits (GR No.27/2012). The initiator (business actor) prepares Environmental Management Effort/Environmental Monitoring Effort based on the location of the business plan or mandatory activities in line with the designation of the spatial plan. In terms of format, the initiator must follow the guidelines outlined in GR No. 16 of 2012, Guidelines for the Preparation of Environmental Documents (GR No.16/2012). If the proposal from the initiator is suitable with the spatial plan, then proceed with the inspection process through the following steps: 1. The Environmental Management Effort/Environmental Monitoring Effort form that has been filled in according to the format will be submitted to the Minister, Governor or Regent/Mayor following the authorities and objects in the proposal. 2. The process of issuing recommendations and examinations may be carried out by the competent authority or a party appointed by the Minister, Head of Provincial Environmental Agency, or Head of Regency/City Environmental Agency. 3. The officials who receive the application in point 1 above will check the completeness of the administration of the Environmental Management Effort/ Environmental Monitoring Effort document. 4. If it needs to be completed, the official will submit it to the initiator to complete the submission document. Meanwhile, the examination process would be continued if the administrative documents are certified complete. 5. The inspection process lasts fourteen (14) working days since the Environmental Management Effort/ Environmental Monitoring Effort entry is declared administratively complete. The official is authorized to issue a feasibility decision letter and Environmental Management Effort/Environmental Monitoring Effort recommendation as stipulated in Article 36 of Environmental Protection and Management Law 2009. The systematic mechanism for fulfilling EIA and Environmental Management Effort/Environmental Monitoring Effort documents in the 2009 Environmental Protection and Management Law is as follows:
Figure 1. Environment Permit Procedures according to Environmental Protection and Management
Law 2009. Author's analysis
Meanwhile, in the new concept of environmental approval in the Job Creation Law and its implementing regulations in GR No. 22/2021, the risk-based approach provides a different spectrum. The risk-based approach is an approach to consider the level of risk in every action or effort taken. The higher the potential risk posed by certain business activities, the tighter the control from the Government and the more requirements and inspections carried out [11].
In implementing the Risk-Based Approach, some stages are carried out in fulfilling the requirements. These stages consist of: [5]
1. Identifying Risk Scope and Defining the Risk
The government must identify the risks of business activities either historically or when business activities take place using data and analysis. Identification is visible through:
a. Continuous and coordinated data scanning with other Ministries/Agencies;
b. Qualitative and quantitative considering the limitations of data and experience;
c. Hold discussions with relevant experts; and
d. Create a public discussion forum.
2. Assessing Risk according to the potential and probability of activity damage (Damage)/Risk assessment aims to determine the level of risk with an estimate and pay attention to non-compliance, such as the possibility of occurrence and the consequences determined by the government.
3. Sorting the Rank/Activity Level according to the Risk Level
The risk level consists of impacts and possibilities measured by looking at significant, medium, and minor impacts. At the same time, the probability is considered from the frequency by measuring the frequent, possible, and infrequent occurrence of damage. This level of risk is essential for implementing accountability, consistency in procedures, and increasing public trust in the government.
4. Allocate and Determine Resources for Enforcement and Inspection under the Sequence of Activities Based on Risk Level.
5. The basic principle of a risk-based approach is compliance and law enforcement. The Government must focus on the proportion of existing resources and entities with high risk together with a structured approach. The allocation of natural resources should be adjusted based on priorities.
Normatively, prerequisite documents are categorized based on the level of risk posed by business activities; the division is established on: significant impact and non-significant impact on the environment [12]. This division is similar to the previous environmental permit arrangement. Every business plan or activity that has an impact on the environment is required to have: a) EIA or Environmental Impact Analysis, b) Environmental Management Effort/Environmental Monitoring Effort or Environmental Management Efforts and Environmental Monitoring Efforts, or c) SEMMU or Statement of Environmental Management and Monitoring Undertaking following the provisions in Article 4 GR No. 22/2021 with further explanation. The three documents are control efforts carried out by the government in the planning stage of the environment [13].
As defined in Article 5 para (1) of GR No. 22/2021, every business strategy or commercial activity that significantly impacts the environment shall conduct an EIA. Activities or business plans considered to have an important impact are 1. Type of business plan or activity whose magnitude/scale requires EIA, and 2. Type of business plan or activity located within and directly adjacent to a protected forest per Article 5 paragraph (2) GR No.22/ 2021. Meanwhile, business activities that do not significantly impact the environment must have an Environmental Management Effort/Environmental Monitoring Effort by Article 6 para (1) GR No. 22/2021. In addition to having insignificant impacts, plans or business activities required Environmental Management Effort/ Environmental Monitoring Efforts, which are 1. Types of projects or businesses located outside and not directly adjacent to protected forest areas, and 2. Types of companies or activities that are excluded from mandatory EIA. Meanwhile, SEMMU must be maintained for firms or commercial activities that have no major environmental impact and are not included in the statutory Environmental Management Effort/Environmental Monitoring Effort, according to Article 7 paragraph (1) of GR No.22/2021.
When researching environmental clearances, it is also prudent to reference Government Regulation No. 5 of 2021 concerning implementing Risk-Based Business Licensing (GR No. 5/2021). GR No.5/2021 is
the central umbrella of the concept of environmental licensing or environmental approval and its business relation. The Presidential Regulation on Risk-based Approach Licensing stipulates that the environmental risk assessment uses environmental risk assessment. Environmental risk can cause adverse consequences for humans and the environment. [14] According to the OECD, trouble in the environment and public health is a combination of probability and frequency, determined by the amount of hazard and the repercussions of an incident. [15]
Environmental Risk Assessment is a process to consider/assess the opportunities of business activity due to human activities that affect environmental conditions. Environmental Risk Assessment is a complementary method used in risk reporting and management.[16] The difference between an Environmental Risk Assessment and an Environmental Impact Assessment is that the EIA is an assessment that becomes a frame of reference for conducting investigations and analysis of the overall consequences and impacts of business activities, even though it includes an environmental impact analysis (reliable) in it. Environmental Risk Assessment is more focused and detailed on environmental and health conditions and factors that have occurred and analyzes, more specifically, the surrounding impacts.[16] In this elaboration, EIA and Risk Assessment are complementary documents in issuing business approvals for implementing risk-based business licensing. In Article 4 jo.5 GR No.5/2021, environmental approval is an essential requirement for business licensing that must be fulfilled by business actors to be able to start and carry out their business activities. Even if the terminology and some process adjustments are different, the environmental approval will end with the end of the business license. This is similar to the old premise employed in environmental permits, which states that environmental permits will expire along with the business license of company activities.
THE URGE FOR REPOSITIONING OF ENVIRONMENTAL APPROVAL TO ACHIEVE SDGS 1. The Environment in The Logic of SDGs Sustainability
The concept of sustainable development began t after the Stockholm Declaration in 1972. A world-level environmental commission on Environment and Development (WCED) followed the declaration. [17] According to the United Nations, "Sustainable development is defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs." [11] There are 17 (seventeen) goals of sustainable development according to the Sustainable Development Goals by the United Nations, as listed below:
Figure 2. SDGs 2030 retrieved https://www.edf-feph.org/newsroom-news-what-have-we-done-so-far-
about-sustainable-development-goals/.
The SDGs adhere to the latest sustainability model, no longer the pillars (which look at the economy, society, and environment separately) or the triple bottom line (which sees the intersection between the three), but the nested model (which considers the relationship of the three comprehensively: the economy is part of the social part of the environment). This means that SDGs are integrated into the goals of the three. But, strictly speaking, this also means that only economic forms that are subject to social interests and environmental sustainability are allowed to be built in the 2016-2030 period.
Thus, the need for realizing economic development should prioritize social and ecological interests. The correct eco-correct pattern to be developed is a healthy economy, which repairs a damaged environment. A conservative economy that maintains an excellent environmental condition-which is allowed to exist. This is what is often labeled as a green economy. Beyond that, it must be considered a sunset or transformation economic sector. In its formal conceptual form, the environment is stated as one of the six essential elements of the SDGs; planet, people, dignity, prosperity, justice, and partnership. Moreover, the elements of people and dignity enter what is called social, while prosperity and justice enter the economy.
This confirms that the carrying environment's capacity builds a dignified community condition and economy. This can be read as a form of criticism of the logic of development, which has so far not only damaged the environment but also resulted in social exclusion and economic injustice.
The conceptual form is further elaborated into 17 Goals and 169 Targets. The environment is primarily described in Goal 12 (production and consumption), Goal 13 (climate change), Goal 14 (oceans), and Goal 15 (land). But it is also very clearly linked to Goal 6 (water and sanitation, especially the water resources management section), Goal 7 (energy), Goal 9 (infrastructure, industrialization, and innovation), and Goal 11 (cities and settlements). Furthermore, with nested logic, all of the Goals are related to the (carrying capacity) of the environment. For example, Goal 1 (poverty) and Goal 2 (hunger) are very clearly associated with the environment.
The poor environmental conditions make it difficult for people to escape poverty and hunger, primarily if they depend on the agricultural sector. Healthy environmental conditions are a prerequisite for productive agriculture. When the environment deteriorates, it is incapable of producing profitable crops. It also confirms the logic that the form of the agricultural economy that must be developed is sustainable agriculture, which is environmentally (and socially) friendly.
Stakeholders from all disciplines must conduct detailed research to determine how specific issues related to the success or failure of the SDGs. For example, in the Indonesian context, the ease of doing business policy through simplifying licensing processes should be directly proportional to efforts to achieve the SDGs, especially in the environmental aspect. The focus on achieving ease of doing business through the most recent licensing should be consistent with the concept of sustainable development. It should not be at odds with components of environmental protection. One of the implementations is by forming a paradigm of thinking that the environment is the central aspect in achieving sustainable development so that economic achievement efforts will follow these environmental aspects.
In several countries implementing environmental approval systems, environmental-ish-related documents have become prerequisite documents before the business licensing mechanism. For example, based on the Ministry Of Environment And Forestry RI Documentation, the ecological approval contained in the Business Licensing is the central instrument for reducing the Environmental Pollution Burden and Environmental Damage Rate. On the other hand, business actors can apply for Business Identification Number issuance in foreign direct investment activities after Job Creation Law even though the environmental permit documents still need to be fully fulfilled. Therefore, even though the Business Identification Number was later published and has not been effective, the risk of misuse of the Business Identification Number for environmental protection could occur.
2. Challenges of Implementing Business and Environmental Agreements for the Achievement of National SDGs 2030
After enacting the Job Creation Law, GR No. 5/2021, and GR No. 22/2021, a breakthrough change is made to facilitate investment procedures. This is expected to be able to improve the national economy which then impacts the other SDGs targets. The change has no impact on the government's principles and commitment to the environment. In the implementation, there are several potentials and challenges after the changes in terminology, approaches to licensing schemes, and required documents. Nevertheless, this change brings good prospects, such as a) Giving a new direction to the national economy, b) Providing ease of regulation in the implementation of business activities, c) Risk-based business licensing can analyze risks in business activities, and d) Enforcement of administrative sanctions that have a direct impact on perpetrators' effort [11] . As expected, this new mechanism can
help the government answer the overlapping problems that often occur in the foreign direct investment sector and national economic development.
On the other hand, the potential is quite good and supports the achievement of the national SDGs. But on the other hand, new things introduced, such as the concept of Environmental Approval, pose challenges in its enforcement efforts which can show that this new paradigm can support sustainable economic and environmentally sustainable development. Several forms of potential challenges to arise from this change include a) The form of supervision of the compliance of business actors on the fulfillment of primary licensing documents as stipulated in Article 5 GR No. 5/2021, one of which is environmental approval, b) That the concept of environmental approval is not an object of dispute because further from the concept of "permit" and c) The emergence of institutional separation, which can result in different risk analysis. [11]
In practice, the government has yet to be able to maximize the method of monitoring the new risk-based business licensing procedures and mechanisms. In fact, in the Jambi Province in 2019 alone, several business actors had carried out their business operations but needed to have legality and effective permit management. One of the cases raised was the case of PT BSU, which operates but is in the stage of applying for a Plantation Business Permit [18]. This case occurred before the regulation of the new mechanism, namely in 2019, when the process and bureaucracy were still relatively rigid. After the new arrangement, Business Identification Numbers and business licenses will be administered even if the principle approval has yet to be published. Even though it already exists, the status needs to be improved. Business actors can interpret. In a press release from the Ministry of Environment and Forestry Number: SP/077/HUMAS/PP/HMS.3/3/2021, the Belitung District Court sentenced the reclamation activity which has no environmental permit operated by PT PAN [19].
In addition, in Batang Hari Regency, PT. Adhi Pati Bangun Negara has been operating while the environmental permit has yet to be still in processed of being submitted. This condition was revealed when there was an inspection by the local Environmental Service. The examples above show the high potencies of violation committed by business actors. Therefore, it risks the national environmental protection.
The next challenge is the position of environmental approval as the thing of dispute in imposing administrative sanctions. Normatively, the disputed object of State Administrative Decision is limited to Environmental Permits, but Business Permits are not revoked. If the business license is not withdrawn, business activities can continue, while the environmental permit will continue to be processed until there is a decision from the court. Even when the environmental permit has been canceled, the business permit is often still carried out. This distinguishes it from the current regulation, where environmental approval is not a permit but a decree to fulfill the requirements for a business license. Environmental approval cannot be the object of a state administrative lawsuit because, after environmental approval, it is not a final decision. Environmental approval is a prerequisite for the issuance of a business license. The business license is the object of dispute in the Administrative Court. When the business license is canceled, the environmental approval is automatically considered null and void.
CONCLUSION
The paradigm of business licensing post-Job Creation Law has brought national investment to the next level, easing the procedures by shortening some bureaucratic ways. However, it brings some significant discussion towards the "environmental approval" concept according to GR No. 5/2021 jo. GR No. 22/2021. Despite the change in its terminology, the current approach seems more flexible for the business players to start investing. However, the ease offered brings challenges regarding enforcement, supervision, and dispute settlement.
The position of environmental approval today potentially lessens the enforcement of the sustainability principle. The businesses may obtain their business permit before issuing the environmental approval, although it could be more effective. It could be more effective for those who need to understand the meaning of useless: they may operate a business that resembles weak enforcement in terms of supervision. Also, the word of approval is beyond the jurisdiction of the Indonesia Administrative Court as it is different from the concept of permit normatively. As a result,
any disputes about this term will be rejected by the court. To solve this, the government shall reposition and redefine the environmental approval concept to ensure its applicability. Therefore, it will contribute to attaining the national SDGs by 2030, notably the targets for a sustainable environment and economy.
LIMITATIONS AND FURTHER STUDY
The authors realize that this can be improved and needs further research. The authors hope that other academicians may research the secondary data on business permits efficacy post-Job Creation Law and its derivative regulations.
ACKNOWLEDGEMENT
Thanks to Universitas Airlangga for all the support.
REFERENCES
[ 1] Fathoni dan S. Tisnanta, "Pengendalian Versus Kebijakan Kemudahan Investasi Meaning Construction of License As the Control Instrument Versus the Ease Investment Policy in Lampung Province," J. Huk. Peratun, vol. 1, no. 1, hal. 79-100, 2018.
[2] N. H. T. Siahaan, Hukum Lingkungan. Jakarta: Pancuran Alam, 2006. h. 239.
[3] A. Efendi, Hukum Penyelesaian Sengketa Lingkungan Di Peradilan Tata Usaha. 2016. h. 180.
[4] S. Wijoyo, "Persyaratan Perizinan Lingkungan Dan Arti Pentingnya Bagi Upaya Pengelolaan Lingkungan Di Indonesia," Yuridika, vol. 27, no. 2, 2012, doi: 10.20473/ydk.v27i2.290.
[5] Environmental Protection And Management Law 2009 Article 1 number 35.
[6] Mi. R. Baihaki, "PERSETUJUAN LINGKUNGAN SEBAGAI OBJECTUM LITIS HAK TANGGUNG GUGAT DI PERADILAN TATA USAHA NEGARA (Telaah Kritis Pergeseran Nomenklatur Izin Lingkungan Menjadi Persetujuan Lingkungan Dalam Undang-Undang Nomor 11 Tahun 2020 Tentang Cipta Kerja)," Maj. Huk. Nas., vol. 51, no. 1, hal. 1-20, 2021, doi: 10.33331/mhn.v51i1.137.
[7] Article 21 Job Creation Law.
[8] Article 1 number 4 GR No. 20/2021.
[9] Articles in Job Creation Law.
[10] Ministry Of Environment And Forestry, "Materi Menteri Lingkungan Hidup Dan Kehutanan Pada Press Conference Bersama Menteri-Menteri," 2020, hal. 0-8. [Daring]. Tersedia pada: https://www.sitinurbaya.com/materi-menteri-lingkungan-hidup-dan-kehutanan-pada-press-conference-bersama-menteri-menteri-tentang-uu-cipta-kerja.
[11] E. Devara, M. Priyanta, dan Y. Adharani, "Inovasi Pendekatan Berbasis Risiko Dalam Persetujuan Lingkungan Berdasarkan Job Creation Law," LITRA J. Huk. Lingkungan, Tata Ruang, dan Agrar., vol. 1, no. 1, hal. 103, 2021.
[12] "Naskah Akademik Rancangan Job Creation Law," 2020. hal 88.
[13] Article 5 dan 6 GR No.22/2021.
[14] Elucidation of the GR No. 22 Tahun 2021.
[15] L. M. Syarif dan A. G.Wibisana, Hukum Lingkungan Teori, Legislasi, Dan Studi Kasus. Jakarta: Kemitraan Partnership, 2015. [Daring]. Tersedia pada: https://core.ac.uk/download/pdf/77626492.pdf
[16] G. M. Bounds dan N. Malyshev, OECD Reviews of Regulatory Reform Risk and Regulatory Policy: Improving the Governance of Risk. 2010. [Daring]. Tersedia pada: https://www.oecd.org/publications/risk-and-regulatory-policy-9789264082939-en.htm.
[17] Mukhlish, "The Concept of Environmental Administration Law in Realizing Sustainable Development", Journal of the Constitution, Volume 7, Number 2, 2010, p. 70
[18] A. Faisal, "Perusahaan Sawit Terbesar Tidak Punya Izin Usaha Perkebunan," Gatra.com, 2020. [Daring]. Tersedia pada: https://www.gatra.com/detail/news/487624/ekonomi/perusahaan-sawit-terbesar-tidak-punya-izin-usaha-perkebunan.
[19] Ministry of the Environment, "PN Belitung Vonis PT PAN Bayar Rp 1,15 Miliar untuk Kasus Reklamasi Tanpa Izin," 2021. [Daring]. Tersedia pada: https://www.menlhk.go.id/site/single_post/3695/pn-belitung-vonis-pt-pan-bayar-rp-1-15-miliar-untuk-kasus-reklamasi-tanpa-izin
