The Impact of the Elimination of the Principle of Strict Liability on Environmental Pollution Post the Job Creation Act

Abstract

This normative-juridical study examines the impact of eliminating the strict liability principle in Indonesian environmental law following the enactment of Law No. 6 of 2023 on Job Creation. Prior to the reform, Article 88(1) of Law No. 32 of 2009 concerning Environmental Protection and Management imposed strict liability for harm from hazardous substances or serious environmental threats without the need to prove fault, embodying the polluter-pays and precautionary principles and facilitating swift civil remedies and deterrence against corporate polluters. The Job Creation Law amended this provision by removing the no-fault clause, transforming it into a de facto fault-based or hybrid regime, while shifting to a risk-based licensing system that reduces ex-ante oversight. Through deductive analysis of primary statutes, constitutional provisions, and doctrinal sources, the research demonstrates that these changes lower deterrence, complicate victim redress, externalise pollution costs, and prioritise investment over ecological sustainability. This contravenes Article 28H(1) of the 1945 Constitution and Indonesia’s Sustainable Development Goals commitments (particularly Goals 12, 13, 14, and 15), risking increased unremedied pollution and ecosystem degradation. Recommendations include reinstating the explicit no-fault element to restore preventive environmental governance.