The Role of Regional Government in Granting Environmental Permits after The

Enactment of Law No. 11 Of 2020 In Central Kalimantan

Background of Study

One of the authorities in the impementation of central and local government is the
creation of permits. According to N.M. Spelt and JBJM ten Berge argue that permission is an
agreement from the authorities based on laws / government regulations to under certain
circumstances deviate from the provisions of statutory prohibitions.1

The government focuses on infrastructure development by seeking to draw investors to

make Indonesia a production region for already-existing large corporations and boost
employment in order to increase the value of the community's economy. The operations of a
corporation are intimately tied to economic factors in national development. The existence of a
company will increase local revenue, but a company that plans to conduct business operations
must consider how those operations will affect the environment directly. In order to prepare for
this, the government created a new legal product called Law Number 11 of 2020 Concerning Job
Creation (Ciptaker Law). The promulgation of Law Number 11 of 2020 concerning Job
Creation, is to increase interest in investment and exports which are the pillars of national
economic growth and create jobs in Indonesia, in addition to simplifying and accelerating the
licensing process in doing business.2 Other than that he development of this legal product intends
to provide employment opportunities for Indonesian citizens in all parts of the country,
strengthen investment ecosystems, make doing business easier, promote worker welfare, and
speed up national strategic initiatives. This law also serves to streamline a number of regulations
that are thought to slow down the economic process.

The ecology, forest conditions, and compatibility with Indonesia's agrarian conditions—
all of which are still in conflict—are not taken into account by this Omnibus Law. This law fails
to advance the interests of numerous groups and only serves one group of investors—
entrepreneurs. In order to make the licensing process for businesses and investments simpler, this
law combined over 79 statutes into a single "Sapu Jagad" Law. In French, a word called
"Omnibus" is used to describe a bus-like vehicle that is used to transport a huge number of
passengers, according to language linguistics. Which of the omnibuses in the law-making
process actually refers to the transportation of several rules so they can be merged into a single
law. This is also the context in which the "Sapu Jagad" Law later came to be known in
Indonesia. Additionally, drafting an omnibus law of this nature typically takes a long time and is
expensive.

The Job Creation Law defines "risk level" as the likelihood of a low, medium, or high
category risk to one's health, safety, the environment, or the use of one's natural resources
(Explanation of Article 7 Paragraph 1). The type of company and/or risk-based activity, as well
as factors to take into account when establishing the amount of risk, are covered in detail in
further provisions (Paragraphs 2 to 7).

Contextually, risk is associated to activities or events that have the potential to occur, or
with varied degrees of probability, as opposed to outcomes that are "certain to occur." Risk
estimation must be dynamic and sustainable based on significant, fundamental, logical, and
efficient considerations because risk is inherent in the nature of uncertainty.

The Job Creation Law's lack of explanations or information about risk-based licensing
undoubtedly presents a number of related issues, such as the problem of identifying the degree of
danger and what variables will be employed as determinants of probabilities in calculating the
degree of risk. The use of a risk-based approach in Indonesia currently confronts a number of
significant challenges, chief among them being the country's underdeveloped database across all
sectors. In the meanwhile, a robust, comprehensive, and integrated database—which,
incidentally, we do not yet have—is required to facilitate risk-based evaluations. Furthermore,
given the complexity of the informal sector in the national economy, mapping the sector and its
potential dangers requires a dynamic approach; the absence of studies on risk mapping as well as
the execution of government or local government policies, plans, and programs based on risk
mapping. It has been demonstrated that the Sustainable Development Goals' projected
achievement under the Medium-Term Regional Development Plan for Strategic Environmental
Studies’ (RPJMD KHLS) implementation, which takes a risk-based approach, still leaves several
challenges in the regions; weak institutional issues and a considerable amount of corruption; to
date, Indonesia has no institution with the authority or track record necessary for risk
management and identification; the country's diverse geographic and environmental
characteristics (ecoregion). An ecoregional approach from each region, along with data on a
national scale, covering both land and water regions, is needed to support a risk-based approach.
But sadly, it is not yet accessible.

The Job Creation Law's main proponents, 55 percent of them, are businesspeople or
entrepreneurs. The environmental sector, especially forestry, has not been spared the impact of
the planned ratification of the Job Creation Law, this is because the regulation on simplification
of business licensing and land acquisition touches on many regulations in the forestry and
environmental sectors. A number of amendments to the regulation were made to the Job Creation
Law, one of which was impacted by Law Number 32 of 2009 concerning Environmental
Protection and Management (PPLH Law), which clarified the need for separate company
licenses and the Environmental Permit, in the Job Creation Law, business permits and
environmental permits are combined to streamline the administrative process, integrate
environmental licensing, and encourage business actors to avoid managing numerous permits
that can be challenging and complex, even for the community that will make an effort. Simple
actions and endeavors do not significantly affect the environment. It is clear that there is a
presumption that the Job Creation law could have a detrimental influence on the environment,
that it does not ensure environmental safety, and that it endangers the long-term viability of the
environment. The bill is thought to be only focused with business and investment, as well as the
possibility of decreasing environmental law enforcement.

The obligation related to the government establishes and maintains the area of the forest
area of at least 30 percent in the provisions of Law Number 41 of 1999 concerning Forestry in
article 18 paragraph (2) is revoked in Law No. 11 of 2020. This means that, for a number of the
reasons listed above, a province or district/city region may have a forest area that is less than
30% of the watershed area. This could be an apology from the government for releasing its forest
land due to, for instance, the socioeconomic situations of the community, which led to a
reduction in the amount of forest land in the region. The 30% figure should be viewed as an
effort to lock in the potential for forest area shrinkage, which has the potential to reduce the
function of the forest as a provider of environmental services, such as maintaining the local
climate, hydrological cycle, biodiversity, and so on, which are really needed for economic,
social, and ecological sustainability in the area. In the Job Creation Law states that the deletion
and change is to provide convenience for businesses in obtaining business licenses and the ease
of investment requirements from the forestry sector. The ease of granting this permit will
obscure actions that violate the issuance of permits in forest areas. Both the company and the
official who issued the permit.

The probable effects of Law No. 11 of 2020, the first simple permit for the use of forest
lands, on the forestry and environmental sectors Regarding the licensing system for the use of
forest areas, which is solely applicable to the use of wood forests and is simply a formality for
non-timber use and environmental services, there has been a significant change in the Job
Creation Law. All sorts of permits for the use of forest areas are fully listed in Law No. 41 of
1999 Concerning Forestry, which is separated into 8 points of categories of permits based on the
purpose and designation of the forest. In contrast, the Job Creation Law simplifies the licensing
system to just one kind, namely company licensing. Articles 27 to 29 of Law No. 41 of 1999 are
repealed by this law, which has the effect of increasing the scope of the intervention in forest
areas through this business licensing scheme and making it simpler for all parties—especially
those with resources and influence—to request business permits in forest areas. The ease with
which licenses are issued without taking into account ecological factors puts future
environmental effects at great risk. Second, less protection is being used when using protected
forest areas. Because of the existence of this Job Creation Law, it is extremely risky to use
protected forest areas for interests that have a tendency to be exploitative, such as changing their
roles to mining or plantations, etc. This can undoubtedly result in the loss and destruction of
protected forest, which is important as a long-term source of nourishment. Additionally, the
central government's function is becoming more and more concentrated, and this might result in
an imbalance in the benefits that the center and the regions enjoy. Third, the elimination of
environmental impact assessments as the final line of defense. Changes to the fundamental
provisions of Law No. 32 of 2009 have an impact on how the environmental impact assessment
is treated during the business licensing process; it is now only a factor to be taken into account
rather than being a requirement when determining whether a business license is feasible. Fourth,
it is simpler to alter how forest areas are used and designated, as well as their purpose. The
proposed Law on Job Creation gives the government discretion when selecting how to
redistribute forest areas. The People's Representative Council need not be consulted on
modifications to the area's allocation or function under this Job Creation Act, with the exception
of those that support National Strategic Projects. This has an effect on the community's loss of
the ability to direct the development of the forest by communicating their desires through the
People's Representative Council, particularly with regard to plans for the allocation of the forest
and the use of forest products. It is possible to worry that those in power will continue to convert
forest areas in ways that are contrary to their intended uses, all without the community's consent
or oversight. The omnibus bill, which normally streamlines roughly 80 laws, will protect those
who neglect the law, particularly those who invest in palm oil in forested regions. Environmental
advocacy groups see this rule as a type of exemption from environmental crimes.

Through amendments to Article 26 of Law 32/2009, the Job Creation Law reduces the
role of public oversight in the process of preparing the environmental impact assessment
documents. People who will be directly impacted by the planned business or activity are the
only members of the community allowed to participate in the Job Creation Law.

This modification in provisions has two significant effects. The loss of two rights: first,
the community's ability to object to the environmental impact assessment document; and, second,
the right of impacted community members and environmental observers to participate in all
decisions made during the environmental impact assessment process. It goes without saying that
this is against the values of accountability and transparency when incorporating the community
in the process of determining environmental viability. Contrary to the constitutional mandate in
Article 28 letter I of the 1945 Constitution, the Indonesian constitution completely protects the
right to a good and healthy environment. Three pillars serve as the foundation for the right to a
safe and healthy environment: access to information, public engagement, and access to justice.
People who will be directly impacted by the planned business or activity are the only members of
the community allowed to participate in the Job Creation Law.

This modification in provisions has two significant effects. The loss of two rights: first,
the community's ability to object to the environmental impact assessment document; and, second,
the right of impacted community members and environmental observers to participate in all
decisions made during the environmental impact assessment process. This is obviously in
violation of the constitutional mandate in Article 28 letter I of the 1945 Constitution, which
states that the right to a good and healthy environment is fully guaranteed by the Indonesian
constitution, in addition to not supporting the principles of transparency and accountability in the
process of involving the community in determining environmental feasibility. Three pillars
serve as the foundation for the right to a safe and healthy environment: access to information,
public engagement, and access to justice.

There are 3 new articles created by the Job Creation Law, and there are 17 articles of Law
No. 41 of 1999 concerning Forestry (Forestry Law) that was modified (changed its substance).
The Job Creation Law's paragraph 4 of Article 35 and Article 36 points 1 to 20—which together
make up 1,187 pages of the "UU" that the DPR submitted to the President—formulate the terms
of these articles. At least from the perspectives of conflict resolution, future
sustainability/protection of forest areas (including the role of checks and balances in decision
making), and community rights related to access the forest areas, it can be seen from the twenty
points of the provisions that this will bring about very crucial changes.

In the late 1980s, along with transmigration, the first oil palm trees were planted in
Central Kalimantan. This industry has expanded quickly as a result of a number of factors,
including high demand and pricing, goals set by the federal, provincial, and local governments,
and the accessibility of affordable land for developers.

As January 2010, the government had authorized 302 oil palm farms across 3,775,000 ha.
35% of them have been planted, according to statistics from 2013. From 1.7 million tonnes in
2009 to about 2.8 million tonnes in 2012, crude palm oil production has grown significantly in
recent years. The agricultural industry is dominated by this output, which accounts for at least
25% of the province's GRDP.

The Forest Area in Central Kalimantan Province contains oil palm plantations and mines
over an area of 967,409.01 hectares. This figure resulted from the identification carried out by
the Ministry of Environment and Forestry (KLHK) in a Working Meeting (Raker) with
Commission IV DPR RI, early June 2022 which was broadcast live through the YouTube
channel Commission IV DPR RI, on business activities without a permit in the field of business.
forestry development in the Forest Area in Central Kalimantan, until May 31, 2022.

Private businesses predominate in the production of palm oil. The corporation oversees at
least 85% of the planted land, with the remaining portion being maintained by farmers, the
majority of whom collaborate with the company. In Central Kalimantan Province, palm oil is the
most significant economic and socio-economic development driver.
 The survival of the forest is gravely threatened by this. Similar to other Indonesian forest
zones, Central Kalimantan experiences deforestation and forest degradation. Kalimantan has
experienced deforestation and forest degradation for many years as a result of settlements, fires,
encroachment, illegal logging, and the exploitation of forests as well as the conversion of forest
functions into oil palm plantations. The chance of deforestation increases when it is known that
there are insufficient resources to maintain the 30% forest. Because the HRS company had
previously been held liable for forest fires or other environmental harm in its concession area, the
work creation requirement was modified.

In fact, the Kompas archives on August 4, 1970 reported that only 5 hectares of Central
Kalimantan's about 13 million hectares of forest remained for plantations, with the majority
having been turned over to wood firms as concessions. In fact, some of the concessions impacted
private property, as was the case in Muara Teweh, North Barito, where the company's heavy
machinery forced seven tombs to be moved.

After Law Number 11 of 2020 concerning Job Creation Law is implemented, the process
of completing business activities that have been built without a business permit in the forestry
sector must be applied carefully, fairly, transparently, auditable, and simultaneously in order to
protect biodiversity as well as ecosystems in Indonesia. closely and assiduously observed The
settlement is essential in preventing violations of the law and anomalies.

There are still a lot of instances of unauthorized property ownership because of particular
factors in relation to forest management related to changes in the law. Therefore, it is crucial that
the government implement changes to address the issue. Linking forest management to the
political-economic system, including corruption, is the way to go.

It was discovered through the socionetwork space's study that the problem was caused by
businesspeople who had strong networks with government officials or officials, which had an
impact on law enforcement. Deforestation rates have increased as a result of these factors'
substantial impact on rural areas. As a result, it is believed that the amendments to the Job
Creation Law's articles are unsuitable because these governance issues must be resolved
independently. In Betahita, the Corruption Eradication Commission's 2014 research of the
National Movement for the Rescue of Natural Resources was compared to the evaluation of the
regulation there. One of the discoveries made at the time was evidence of corruption, especially
state capture corruption that favors particular parties and is allowed by law, in the process of
exploitation of the forest.

To ensure that the elaboration is thorough and not biased, a thorough examination of the
Job Creation Act is required. the requirement for positive measures to balance the allocation of
forest benefits to various actors, not only specific commercial ones. And complete governance
adjustments to achieve the enhancement of field forestry performance.

People will pay a higher price than they would get, especially if those paying are not able
to pay enough. This is true even if the disaster spreads to major population and economic growth
centers. Environmental damage also has an impact on animals. Under the pretense of finding
solutions to all these problems, the government increasingly adopts policies that, as the issue gets
worse, call for the destruction of nature and everything in it. Even if the decision is solely made
for the sake of the community and excludes anyone with even the slightest conflict of interest,
those with the biggest interests in the result are not involved. This research will conduct a study
of the role of regional government in granting environmental permits after the enactment of Law
No. 11 of 2020 in Kalimantan Province.

Research Question

1. What is the role of the Central Kalimantan local government after the enactment of Law
No. 11 of 2020?

Literature Review

N TITLE, AUTHOR, & METHOD &

RESEARCH RESULT
O JOURNAL THEORY

1 Iskatrinah, et al Method: The legal arrangements related to environmental

(2022): Environmental Qualitative permits are contained in Article 1 number 35
Licensing After the Job normative UUPPLH and Article 1 PP. No. 27 of 2012
Creation Act in the juridical method concerning Environmental Permits is a permit that
Perspective of a with a library is given to every person who carries out a business
Decentralized Unitary research and/or mandatory Amdal or UKL-UPL activities in
State. IOP Conference approach. the framework of environmental protection and
 Series: Earth and management as a prerequisite for obtaining a
Environmental Science business and/or activity license.
Theory:
Philipus M.
Hadjon, 1993.

2 Kornelius Benuf, Method: The granting of environmental approval as a

Abram Robert Normative substitute for the permits to continue carry out
Aritonang, & juridical with environmental feasibility test to meet UKL-UPL
Supriardoyo secondary data. standards and PKPLH issuance. In addition, the
Simanjuntak (2020): central government can impose administrative
POLICY ON THE penalty such as fines to entrepreneurs who do not
REMOVAL OF Theory: AL have environmental agreement or who do not carry
Sentot
ENVIRONMENTAL out their obligations.
Sudarwanto dan
PERMITS IN THE
Dona Budi
WORK CREATION
Kharisma, 2020.
BILL AND ITS
IMPACT ON
SUSTAINABLE
DEVELOPMENT IN
INDONESIA. Journal
of Law & Development.

3 Indra Bangsawan, et Method: Indonesia’s environmental policies after the

al (2022): Normative enactment of the Job Creation Law have reduced
Environmental Policy juridical the participation of the community in obtaining a
Based on Community research good and healthy living environment, as evidenced
Support System. KnE by the failure of the community’s right to sue and
Social Sciences. community involvement only for those who have a
Theory: Stone, direct impact.
1972
 4 Naswar, et al (2021): Method: Indonesia's positive law does not yet have an
Protection of Normative legal optimal legal framework to protect this area, so it is
biodiversity in research necessary to strengthen specific norms and policies
concession of to protect biodiversity in sustainable palm oil
sustainable palm oil. plantation concessions.
IOP Conference Series: Theory: United

Earth and Nations, 2019

Environmental Science

5 Watoni Noerdin Method: Article 174 of the job creationlaw adds rules
(2022): Relationship Normative regarding the relationship between the central and
for The Establishment legal research local governments, namely the authority of
of Local Regulations in with a local governments as part of the presidential
the Job Creation Law. qualitative authority. Article 176 a quo also changes a
ADMINISTRATIVE approach number of local government authorities. For
AND method example, the licensing authority in Article 350 of
ENVIRONTMENTAL Law 23/2014. In PP No 6/2021, Article 3
LAW REVIEW. Implementation of Business Licensing in the
Theory: C.W. Regions is carried out by the Central Government,
van der Pot, Provincial Government, and City/Regency
1968 Goverment in accordance with their respective
authorities based on the provisions of laws and
regulations. From the licensing rules, it is not
executive preview as a form of preventive
supervision, but top-down control that dominates.

Method

This research is a normative legal research conducted by examining secondary data, with
the nature of descriptive research. The data used in this study are: First, primary legal materials,
namely Law no. 11 Of 2020 and other related laws and regulations. Second, secondary legal
materials in the form of journal articles, books, research results, and other scientific articles that
are relevant to the study of environmental permits, regional government and the authority to
regulate regional government.

The author uses two approaches in normative legal research, namely the statute approach
accompanied by a conceptual approach. Then the data collection method uses a literature study
aimed at tracing, examining, and reviewing secondary data and legal materials that are
qualitatively analyzed on the subject matter described in this research.

Reference

Berge J.B.J.M ten and, Spelt N.M. 2014 State Administrative Law, edited by Ridwan H.R,
Jakarta, Raja Grafindo Persada.
Iskatrinah et al 2022 IOP Conf. Ser.: Earth Environ. Sci. 1030 012023
Indra Bangsawan, M., Sukoco, B., Kusuma Diarti, D., & Eko Wati, D. (2022). Environmental
Policy Based on Community Support System. KnE Social Sciences, 7(15), 271–279.
https://doi.org/10.18502/kss.v7i15.12096
Naswar et al 2021 IOP Conf. Ser .: Earth Environ. Sci. 886 012073
Benuf, Kornelius & Aritonang, Abram & Simanjuntak, Supriardoyo. (2021). POLICY ON THE
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