Environmental Emergency and Legal Accountability: Strengthening State and Corporate Duties

Introduction 

On January 31, 2026, a toxic cloud of brownish-orange nitric acid gas billowed into the skies above Cilegon, Banten, originating from a storage facility operated by PT Vopak Terminal Merak a subsidiary of Royal Vopak N.V. The release occurred during a line-purging operation using nitrogen, which triggered an unexpected reaction venting pressurized chemical fumes directly into nearby residential neighborhoods. Over 56 residents required emergency medical care for acute respiratory distress, chemical eye burns, and dizziness. Although the Ministry of Environment and local authorities initiated inspections, the incident highlights a broader issue: the acceleration of downstream manufacturing across Indonesia’s industrial corridors has concentrated hazardous and toxic material facilities adjacent to urban communities, multiplying exposure risks. 

These recurring industrial failures directly challenge Article 28H(1) of the 1945 Constitution of the Republic of Indonesia (UUD 1945), which guarantees every citizen the right to a clean and healthy environment, alongside Article 33(4), which mandates sustainable economic development (Asshiddiqie, 2010). Despite this constitutional bedrock, a persistent enforcement gap exists within the Indonesian legal system. Law No. 32 of 2009 on Environmental Protection and Management (UUPPLH), as amended by Law No. 6 of 2023 on Job Creation, establishes corporate criminal liability and strict civil liability. However, state enforcement remains largely reactive, fragmented, and dependent on basic administrative warnings. Indonesia’s statutory framework and judicial application remain fundamentally flawed due to the lack of a legal definition for an “environmental emergency,” an over-reliance on post-hoc sanctions, and the systematic underutilization of corporate criminal prosecution.

The Existing Legal Framework 

The legal authority for environmental protection stems from the amended 1945 Constitution. Article 28H(1) treats environmental quality as a fundamental human right, while Article 33(4) integrates environmental sustainability directly into the national economic architecture, binding commercial enterprises operating within Indonesian jurisdiction (Asshiddiqie, 2010). The primary statutory mechanism governing these principles is Law No. 32 of 2009 (UUPPLH), as amended by Law No. 6 of 2023 (Job Creation Law). The Job Creation framework shifted environmental oversight toward risk-based business licensing, integrating Environmental Impact Assessments (AMDAL) and Environmental Management/Monitoring Plans (UKL-UPL) directly into general business permits (Wibisana, 2021). Operationally, Government Regulation No. 22 of 2021 (PP No. 22/2021) establishes protocols for environmental approvals, toxic substances waste management, emergency response planning, and immediate spill notifications (Articles 217–230). 

Under this statutory framework, Indonesian law provides three avenues for imposing liability on commercial entities:

When an environmental crime is committed by or on behalf of a business entity, Article 116(1) of the UUPPLH allows charges to be brought against the entity itself, the individuals ordering the offense, or those acting as operational leaders. Article 117 permits courts to increase corporate criminal fines by one-third, while Article 119 provides supplementary penalties, including profit forfeiture, site closure, mandatory land remediation, and corporate receivership. Furthermore, Law No. 1 of 2023 (the New Criminal Code / KUHP) reinforces corporate criminal culpability by recognizing corporations as legal subjects capable of committing crimes whenever an offense falls within their functional scope or organizational interest. 

III. The Challenges Posed by Environmental Emergency 

Despite this multi-tiered framework, major industrial chemical incidents reveal significant structural and judicial limitations in responding to environmental emergencies. 

The PT Vopak Terminal Merak Incident (2026) 

Following the January 2026 chemical release in Merak, state regulators faced evidentiary hurdles when conducting post-incident inspections. Ambient air quality testing conducted hours after the plume dissipated showed normal background levels, which complicated the task of establishing direct causal links to long-term environmental degradation. Furthermore, the facility’s close proximity to residential areas without adequate buffer zones demonstrates structural failures in zoning enforcement and supervisory oversight.

Judicial Precedents & Enforcement Bottlenecks 

Indonesian jurisprudence reflects inconsistent application when holding corporate entities accountable: 

• The Lapindo Mudflow Crisis (2006): In WALHI v. PT Lapindo Brantas et al. (Supreme Court Decision No. 1481 K/Pdt/2008), courts accepted the defense the blowout resulted from an unprovable natural earthquake rather than drilling negligence, illustrating the difficulty of proving causation without clear emergency standards. 
• PT Kallista Alam (2015): In Supreme Court Decision No. 12/PK/Pdt/2015, the court applied Article 88 UUPPLH strict liability for illegal forest fires, awarding over IDR 366 billion in damages. However, multi-year delays in judgment execution highlighted severe enforcement bottlenecks (Indonesian Center for Environmental Law [ICEL], 2020). 
• PT Bumi Mekar Hijau (2016): In Supreme Court Decision No. 3080 K/Pdt/2016, the Supreme Court overturned a lower court dismissed environmental claims, reaffirming concession holders are strictly liable for failing to prevent fires on their land. 

While civil strict liability under Article 88 has gained traction in deforestation and land-fire litigation, corporate criminal prosecution under Articles 116–120 remains rarely utilized for chemical and industrial disasters, as state prosecutors tend to focus on individual managers rather than the corporate entities themselves. 

Core Structural Vulnerabilities 

These cases reveal five core defects within Indonesian environmental law: 

1. Post-Pollution Bias: Regulatory enforcement relies heavily on penalizing operators after releases occur, rather than enforcing active, day-to-day operational design and safety standards. 
2. Statutory Ambiguity: Neither the UUPPLH nor PP No. 22/2021 clearly defines an “environmental emergency”. Lacking explicit chemical concentration thresholds or geographic parameters, emergency declarations and public warning protocols remain largely discretionary.
3. Underutilization of Corporate Criminal Penalties: Prosecutors routinely target lower-level site supervisors, allowing corporate entities to treat administrative fines as routine operational costs rather than facing true corporate culpability. 
4. Lack of Regulatory Accountability: Current laws do not provide effective legal mechanisms to hold state supervisory agencies accountable when they approve high-risk facilities near residential zones without enforcing buffer zones. 
5. Misapplication of Strict Liability: Lower courts frequently confuse Article 88 strict liability with traditional tort law under Article 1365 of the Indonesian Civil Code, incorrectly requiring victims to prove complex scientific fault and causation (Wibisana, 2019, 2021). 

Comparative Perspectives 

European Union

The Environmental Liability Directive (Directive 2004/35/EC) codifies the “polluter pays” principle, enforcing strict liability for dangerous activities. The Seveso III Directive (Directive 2012/18/EU) regulates heavy chemical sites by mandating safety reports, emergency plan disclosures, and minimum buffer zones between industrial sites and homes. Additionally, Directive (EU) 2024/1760 on Corporate Sustainability Due Diligence (CSDDD) obligates large enterprises to monitor human rights and environmental risks across global operations. 

United Kingdom

The Environmental Damage (Prevention and Remediation) Regulations 2015 force commercial operators to notify regulators immediately upon an imminent threat of damage and take immediate mitigation measures under threat of criminal penalties. 

Australia

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) combines strict liability for environmental damage with provisions holding corporate directors personally liable if they fail to demonstrate active due diligence.

France

Emerged as one of the leading jurisdictions in strengthening environmental accountability by integrating constitutional environmental rights, corporate due diligence, and judicial oversight. Unlike many legal systems that primarily emphasize post-disaster sanctions, French environmental law increasingly adopts a preventive approach, requiring both the State and private corporations to anticipate, prevent, and remedy environmental harm before irreversible damage occurs. This development provides a valuable comparative framework for Indonesia, where environmental governance remains largely reactive despite comprehensive environmental legislation under Law No. 32 of 2009 on Environmental Protection and Management (Undang-Undang Perlindungan dan Pengelolaan Lingkungan Hidup/UUPPLH). 

A landmark development in France is the French Charter for the Environment of 2004 (Charte de l’Environnement), which was incorporated into the French Constitution in 2005. The Charter recognizes environmental protection as a constitutional value and establishes the right of every individual to live in a balanced and healthy environment. More importantly, it imposes duties upon both public authorities and citizens to preserve environmental quality. Among its most influential provisions is the incorporation of the precautionary principle, which obliges public authorities to adopt preventive measures whenever scientific uncertainty exists regarding the possibility of serious or irreversible environmental damage. This constitutional recognition transforms environmental protection from a policy objective into a legally enforceable constitutional obligation. 

The constitutional status of environmental protection has significantly influenced French administrative and judicial decision-making. Government authorities are expected not only to respond to environmental disasters but also to actively prevent foreseeable environmental risks through effective regulation, licensing, monitoring, and enforcement. Consequently, environmental emergencies are increasingly understood as governance failures rather than isolated industrial accidents. This preventive orientation differs from Indonesia’s legal practice, where government intervention often intensifies only after environmental harm has already occurred. 

The legislation requires large corporations to establish, implement, and publish a comprehensive vigilance plan identifying environmental, human rights, and occupational

safety risks throughout their global operations and supply chains. Unlike traditional environmental liability, which generally arises after damage has occurred, the Duty of Vigilance Law emphasizes preventive corporate responsibility. Companies are expected to identify foreseeable risks, monitor suppliers, adopt mitigation measures, and establish effective reporting mechanisms before environmental harm materializes. 

The French Duty of Vigilance Law represents a significant shift from traditional environmental regulation. Rather than viewing corporations merely as potential polluters subject to sanctions after violations occur, the law conceptualizes corporations as proactive risk managers responsible for preventing environmental degradation. Failure to establish or effectively implement a vigilance plan may expose corporations to civil liability if environmental damage could have been prevented through adequate due diligence. This preventive regulatory model aligns closely with contemporary international standards, including the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. 

The significance of the French model became particularly evident through climate litigation. One of the most influential cases is Commune de Grande-Synthe v. French State. In this case, the municipality of Grande-Synthe argued that inadequate governmental action to reduce greenhouse gas emissions threatened the municipality through rising sea levels and increased climate risks. In 2021, the French Conseil d’État held that the government must demonstrate concrete measures capable of achieving France’s legally binding climate commitments. The decision established that environmental obligations are not merely political aspirations but legally enforceable duties subject to judicial review. Courts may therefore require the executive branch to strengthen environmental policies where governmental inaction jeopardizes constitutional or statutory environmental obligations. 

Another landmark decision is L’Affaire du Siècle (The Case of the Century), decided by the Administrative Court of Paris in 2021. Several environmental organizations successfully argued that the French government had failed to fulfill its climate obligations by insufficiently reducing greenhouse gas emissions. The court recognized the existence of ecological damage and concluded that governmental inaction constituted a legal fault. Importantly, the court ordered the French government to adopt additional measures capable of remedying environmental harm. This judgment illustrates the growing willingness of

courts to impose positive obligations upon governments rather than merely reviewing administrative legality. 

These cases collectively demonstrate the evolution of environmental accountability in France from a reactive liability model toward a governance-oriented model emphasizing prevention, transparency, and judicial oversight. Environmental emergencies are increasingly viewed as the cumulative consequence of inadequate regulatory planning, insufficient corporate risk management, and governmental failure to fulfill constitutional obligations. Consequently, both public authorities and private actors may bear legal responsibility for failing to prevent foreseeable environmental harm. 

The French experience also illustrates the importance of integrating environmental principles into corporate governance. Environmental compliance is no longer limited to obtaining operational permits or satisfying administrative requirements. Instead, environmental risk assessment has become an integral component of corporate management, requiring continuous monitoring, stakeholder engagement, supply-chain supervision, and internal compliance mechanisms. This broader conception of corporate accountability significantly expands the scope of legal responsibility beyond traditional pollution control. 

When compared with Indonesia, several important differences become apparent. Indonesia possesses a relatively comprehensive environmental statute through UUPPLH, which incorporates principles such as sustainable development, the polluter pays principle, and strict liability under Article 88. Nevertheless, implementation remains largely centered on post-incident law enforcement. Administrative sanctions, criminal investigations, and civil compensation generally commence only after environmental damage has occurred. Preventive corporate obligations comparable to the French Duty of Vigilance Law remain limited, and no comprehensive legislation currently requires companies to undertake mandatory environmental due diligence across their supply chains. 

Similarly, although Indonesia recognizes the constitutional right to a healthy environment under Article 28H paragraph (1) of the 1945 Constitution, judicial enforcement of governmental environmental obligations remains relatively underdeveloped. Courts rarely impose affirmative duties upon government institutions to strengthen environmental governance or climate policy in the manner demonstrated by the French Conseil d’État.

Consequently, governmental accountability frequently remains political or administrative rather than judicially enforceable. 

The comparison lead to the assumption that France offers a perfect model suitable for direct transplantation into Indonesia. Important institutional, political, and socioeconomic differences must be acknowledged. France benefits from stronger regulatory institutions, more developed administrative courts, greater environmental monitoring capacity, and higher levels of corporate compliance. Indonesia faces different challenges, including overlapping institutional authority, limited enforcement resources, illegal resource extraction, decentralized environmental governance, and varying local government capacities. Therefore, wholesale adoption of French legal mechanisms may not be feasible without institutional adaptation. 

Nevertheless, several normative lessons remain highly relevant for Indonesian environmental reform. First, environmental accountability should increasingly emphasize prevention rather than post-disaster sanctions. Second, corporations should bear broader due diligence obligations extending beyond compliance with licensing requirements toward systematic identification and mitigation of environmental risks. Third, governmental environmental obligations should become more judicially reviewable where regulatory inaction contributes to environmental emergencies. Finally, constitutional environmental rights should be interpreted not merely as declaratory guarantees but as enforceable legal standards capable of guiding administrative decision-making and judicial review. 

The French experience ultimately demonstrates that effective environmental governance requires the integration of constitutional rights, preventive corporate responsibility, and active judicial supervision. Environmental emergencies should no longer be perceived solely as isolated industrial accidents but as indicators of systemic governance failures involving both public authorities and private corporations. For Indonesia, adopting selected elements of the French approach particularly preventive environmental due diligence, stronger judicial oversight, and clearer state obligations could substantially strengthen environmental protection while preserving the core principles already embodied within the UUPPLH. Such reforms would contribute to a more proactive environmental legal framework capable of preventing environmental emergencies before irreversible ecological damage occurs, rather than relying predominantly on sanctions imposed after harm has already been suffered.

International Soft Law

Pillar II of the UN Guiding Principles on Business and Human Rights (UNGPs) and Chapter VI of the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises emphasize corporations must establish proactive risk assessments and public emergency communication systems. 

Proposals for Reform in the Indonesian Context 

To bridge the gap between constitutional guarantees and industrial reality, Indonesia should consider targeted legislative and structural reforms: 

1. Codify a Statutory Definition of “Environmental Emergency”: Amend the UUPPLH to establish explicit legal definitions, chemical concentration triggers, mandatory public warning protocols, and immediate multi-agency response mechanisms. 
2. Mandate Emergency Preparedness Audits: Require high-risk hazardous waste processing and storage sites to submit third-party audited Environmental Emergency Preparedness Plans every two years, with automatic permit suspension for non-compliance. 
3. Enforce Director Liability for Lack of Due Diligence: Adopt statutory presumptions similar to Australia’s EPBC Act, holding corporate directors and safety officers personally liable if they fail to demonstrate due diligence in preventing industrial chemical releases. 
4. Strengthen Environmental Judiciary Chambers: Train and deploy specialized environmental judges skilled in scientific causation to ensure consistent application of Article 88 strict liability without imposing traditional fault requirements on victims. 
5. Require Mandatory Environmental Risk Insurance: Require all facilities handling hazardous waste materials to carry comprehensive environmental risk insurance to secure immediate funding for community medical costs, evacuations, and site remediation without prolonged litigation.

Conclusion 

January 31, 2026, chemical release at PT Vopak Terminal Merak vividly underscores the ongoing tension between rapid industrial expansion and public health safeguards across Indonesia. While Articles 28H(1) and 33(4) of the 1945 Constitution guarantee every citizen the non-derogable right to a healthy living environment, state regulatory mechanisms remain fundamentally reactive. The current legal system relies heavily on administrative warnings and post-disaster remediation, allowing corporations to absorb minor regulatory fines as routine business expenses. To bridge this gap, Indonesia must establish a statutory definition for an environmental emergency which is a formal legal trigger based on specific chemical toxicity thresholds that requires immediate public notification and automated state intervention. Furthermore, judicial authorities must actively enforce corporate criminal liability, targeting the corporate entity itself rather than limiting prosecution to individual site managers. 

Achieving meaningful environmental justice also requires trial courts to apply strict civil liability under Article 88 of Law No. 32 of 2009 as intended by the legislature. Judges must stop forcing injured victims to satisfy traditional tort standards by proving complex scientific faults during high-risk chemical disasters. Complementing this judicial shift, state supervisory bodies must face greater accountability when approving hazardous facilities without enforcing mandatory safety buffer zones. Requiring high-risk industrial operators to maintain comprehensive environmental risk insurance will guarantee immediate funds for community relocation, acute medical treatment, and ecological recovery without protracted litigation. By shifting from reactive enforcement to systemic corporate accountability, Indonesia can successfully align its economic growth strategies with its constitutional promise of environmental integrity and public safety.

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Legislation 

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Australia. (1999). Environment Protection and Biodiversity Conservation Act 1999 (Cth). Commonwealth Government Securities. 

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Council Directive 2012/18/EU of 4 July 2012 on the control of major-accident hazards involving dangerous substances. (2012). Official Journal of the European Union, L 197, 1–37. 

Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence. (2024). Official Journal of the European Union, L 1760, 1–72. 

Indonesian Center for Environmental Law. (2020). Executability of environmental court decisions in Indonesia(ICEL Briefing Paper). ICEL. 

OECD. (2023). OECD guidelines for multinational enterprises on responsible business conduct. OECD Publishing. https://doi.org/10.1787/81f78235-en 

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