Governing Through Courts?

Indonesia is one of the 10 biggest greenhouse gas emitters in the world. This is because of the emissions from two sectors: forestry (47.8%), especially from deforestation for plantation and mining activities; and energy (34.9%). In its Nationally Determined Contribution (NDC), Indonesia pledged to reduce 29% of its emissions unconditionally, and 41% with international support for finance, technology transfer, and development and capacity building. However, The Climate Action Tracker considers the NDC of Indonesia to be “highly insufficient” in which one particular concern is that the use of coal remains as the main source of energy and is even projected to increase, representing 64% of the total energy mixed by 2030.

Following a global trend in addressing the gap between the pledge at the international level and the actual policy and practice at the domestic level through climate change litigation, environmental NGOs and local communities in Indonesia have also attempted to use a similar strategy. They demand that courts play an important role in climate governance, especially when the state appears to be reluctant to take necessary measures required for addressing the climate crisis.

Thus, this article aims to discuss three cases representing climate change litigation in Indonesia: the Samarinda Accuses Case, the Cirebon Coal Power Plant Case, and the Celukan Bawang Coal Power Plant Case. I argue that in a country that is heavily dependent on a carbon-intensive economic growth model, climate change litigation appears to be challenging because it potentially questions the economic model upon which the existing political and economic structure in the country is built.

The Samarinda Accuses Case

The first case I want to refer to is the case Komari and others v. Mayor of Samarinda and others [2015], also known as the Samarinda Accuses Case. Through a Citizen Lawsuit (actio popularis) the plaintiffs sued inter alia the Mayor of Samarinda and the Ministry of Energy and Natural Resources for their failure to control coal mining activities in the region. The Civil Court of Samarinda accepted the plaintiffs’ claims and demanded the defendants to evaluate all coal mining permits in the region, to adopt policies on the protection of children from coal mining operations, and to designate water conservations and agricultural areas to stop the expansion of coal mines. The Court of Appeal then ruled to enforce the decision.

In Cassation, however, the Supreme Court took a different stance. The previous decisions were revoked on purely procedural reasons. The court ruled the citizen lawsuit to be rejected because two of the six defendants, namely the Ministry for the Environment and the Regional House of People’s Representative of Samarinda Municipality, were not notified by the plaintiffs before filing the lawsuit. According to the Supreme Court’s Guidance Procedure for Environmental Cases, a notification to the potential defendants is required before submitting a citizen lawsuit.

The Cirebon Coal Power Plant Case

The Cirebon Coal Power Plant Case concerned the construction of a coal power plant in Cirebon, West Java, and actually consists of two related lawsuits, the case Dusmad and others v. The Board of Investment of West Java [2016] and WALHI and Sarjum v. The Board of Investment of West Java [2017]. In the first action, Dusmand and five other members of a fishing community filed a lawsuit before the Bandung Administrative Court against the Board of Investment of West Java for granting an environmental permit (EP 660/2016) to the Cirebon Energi Prasarana to construct a coal power plant across the two subdistricts of Astanajapura and Mundu. The plaintiffs argued that such construction would negatively affect the livelihood of the fishermen and coastal communities. The court decided in favour of the plaintiffs, stating that the EP 660/2016 violated the spatial planning regulation for the Cirebon District because, in the regulation, the Mundu Subdistrict was not designated as a location for the construction.

Following the court decision, the defendant appealed. During the process, the Cirebon Energi Prasarana submitted a request for an amendment of the EP 660/2016 on the basis that the national government had revised the National Spatial Planning Regulation. A new provision, Article 114a, had been inserted stating that “(1) in the case, if a national strategic project has not yet been designated in the provincial and district spatial planning regulations, the space for the project can still be utilised in accordance to this national regulation; (2) in utilising such space, the permit can be granted by the Minister of Agrarian Affairs and Spatial Planning.” The company claimed that the Cirebon Coal Power Plant must be considered as a national strategic project under Article 114a. At the request, a new permit was granted.

In July 2017, the Board of Invesment of West Java granted a new environmental permit (EP 660/2017) to the company. As a response, the Indonesian Forum for the Environment (WALHI/Friends of the Earth Indonesia) together with a local fisherman, filed a lawsuit against the new permit arguing that it was unlawful because the whole environmental impact assessment (EIA) process had been considered as void by the previous court decision. In the first lawsuit, the issues of climate change was marginal because it primarily focused on the impacts of the construction to human health and the local environment while in the second lawsuit the issues of climate change caused by coal burning were explicitly used as one of the grounds of rejecting the plant. However, the court finally dismissed the second lawsuit arguing with the principle of Ne Bis in Idem (the prohibition against double jeopardy). In fact, the court did not consider the EP 660/2017 as a new permit but as a continuation of the EP 660/2016; hence, both should be considered as a single document.

The Celukan Bawang Coal Power Plant Case

The third case relevant to the given context is the case Wijana, Sufarlan, Astawa, & Greenpeace Indonesia v. Governor of Bali [2018]. A group of locals together with Greenpeace Indonesia brought an action before the Denpasar Administrative Court against an environmental permit granted to the Celukan Bawang Coal Power Plant to construct a plant in Celukan Bawang, a subdistrict in northern Bali. The plaintiffs from the local community were concerned with the potential impacts of the plant on the local livelihood. Greenpeace was concerned with the impacts of the coal-fired plant on the general climate, air pollution and the local ecosystems.

The administrative court dismissed the lawsuit on procedural grounds, namely a lack of legal standing. The court considered that the plaintiffs did not have standing, because the plaintiffs had not suffered any loss. The panel of judges argued that “the impacts or the potential impacts of pollutions to the environment as argued by the plaintiffs are only a prediction or assumption (possibility) without being supported by scientific evidence from experts and, in fact, the impacts are very likely to be prevented” (p. 149). The dismissal was uphold by both, the Court of Appeal and the Supreme Court.

Putting Climate Litigation in a Wider Context

Several observations can be made from these three cases: Unlike in several countries where climate change litigation has managed to put pressure on the state through the courts (Neubauer, et al. v. Germany; Leghari v. Federation of Pakistan; and Urgenda Foundation v. State of the Netherlands), in Indonesia such litigations did not lead to much, if not to say they failed in total. There have been inconsistencies in interpreting the doctrine of legal standing (locus standi). One court accepted the potential impacts suffered by the plaintiffs as a legitimate standing to sue (see the case of Cirebon), but other courts did not consider enough the forebrought potential impacts, devaluing them as mere “prediction or assumption“ (see the case of Celukan Bawang).

When dismissing climate litigations on procedural grounds (the failure to notify, Ne Bis in Idem, or the legal standing), one could argue that Indonesian courts demonstrate a tendency to avoid a meaningful engagement with complex issues relating to the climate crisis. There are two explanations that are frequently attributed by observers to this tendency. The first is an institutional one which refers to the general weakness of the Indonesian courts in handling environmental cases, specifically due to the judges’ lack of expertise in environmental law; this is the case despite being certified as environmental law judges. The second is a cultural explanation referring to the judges’ possible denying attitude toward the climate crisis. In fact, such attitude appears to be a reflection of a survey by YouGov showing that Indonesia is the country with the highest percentage of climate deniers (21%). However, both accounts are based on internal assessment of the judiciary; thus, they underestimate the external contexts that may influence how the court works. Another explanation is required.

This article suggests that climate litigation in Indonesia does not only opens opportunities for environmental movements to demand necessary measures for adaptation and mitigation to climate change, but it also provides a new strategy to question the existing political economic structure contributing to the climate crisis. Indeed, Indonesia is one of the seventh biggest coal producing countries in the world, with China, Japan, India, and South Korea as the export markets. The industry’s biggest players are companies controlled by coal oligarchs and high-profile politicians, several of them being part of President Jokowi’s administration serving as the Coordinating Minister of Economic Affairs, the Coordinating Minister of Maritime Affairs and Investment, the Minister of Tourism and the Minister of Defense.

Through climate change litigation, environmental movements struggle against the powerful coal industry in the country either directly or indirectly. In the Samarinda Accuses Case, the plaintiffs challenged the industry in its production while in the Cirebon Case and the Celukan Bawang Case, the plaintiffs challenged the consumption of coal as part of government’s national energy strategic projects. To date, however, such struggles utilizing climate litigation have been largely unsuccessful due to the paramount national interest toward economic growth in which the coal industry has played an essential role. During the global Covid-19 pandemic the government even took action in favour of the coal industry by revising the Mineral and Coal Mining Law under the banner of ‘boosting economic growth’.

Hence, the failure of climate change litigation in Indonesia cannot be separated from the political economy of development in the country. This structural context has managed to shape the internal discourse within the judiciary body in which the role of courts in facilitating economic growth has become a measure of legitimacy. This can be seen by how the Chief Justice of Indonesia’s Supreme Court, Hatta Ali, frames the Court’s annual report by stating that “law is one of the most important factors in economic growth. To create spaces for economic growth, the Supreme Court has taken a role in resolving many legal barriers for pursuing people’s welfare”, among others, through settling disputes concerning the government’s national strategic projects. As proven by the Celukan Bawang and Cirebon Coal Cases, the court’s decisions are largely in favour of the projects. In the Cirebon Case, the panel of judges even reasoned that “law should not be anti-development and law should not hinder development; on the contrary, law should stand at the front to open the path of development and to provide a direction for development; law escorts and controls development to achieve its goals” (p. 346).

One may argue that the notion of “development” as used above does not per se contradict international climate change treaties. The UNFCCC for instance, stipulates in its Article 2 “Objective” that stabilisation of greenhouse gas concentrations in the atmosphere should be at such a level “to enable economic development to proceed in a sustainable manner”. Similarly, Article 2 of the Paris Agreement states that the global response to the threat of climate change is taken “in the context of sustainable development”.

However, such an argument overlooks what Jorge Viñuales calls “the deliberate vagueness” of sustainable development as a concept “which lends itself to far too many (mis-)interpretations” (p. 285). In Indonesia, such interpretation is undertaken by the government by retaining economic growth as the overriding priority at the expense of social development and environmental protection. This attitude can be seen in the Minister for the Environment and Forestry‘s comment in responding to the COP 26 of UNFCCC that Indonesia’s national agenda to pursue development “should not be stopped for the sake of reducing carbon emissions or deforestation”. Moreover, in a country like Indonesia, where the national economy is dominated by oligarchies, it is precisely these elites who benefit most from the contested understanding of the notion “development” as measured (only) by economic growth; this leads to the perpetuation of socio-economic inequalities. Consequently the impacts of the climate crisis are also distributed unevenly corresponding to those inequalities.

In brief, one can learn from the experience of Indonesia that in a country where the government pursues economic development based on a carbon-intensive economic growth model, climate litigation appears to be more challenging because it potentially shakes the foundations of the existing political and economic model; the model that has caused the climate crisis in the first place.