Strict Liability within Indonesia’s Environmental Legal System: Examining the Necessity of Its Reintroduction

The removal of the phrase “without the need to prove fault” from Article 88 of Law No. 32 of 2009 through Law No. 11 of 2020 has generated considerable debate, as it potentially shifts strict liability from a risk-based liability regime toward a fault-based liability regime, thereby weakening environmental protection and restoration. This study aims to analyze the implications of this amendment for environmental law enforcement and to formulate a reorientation of strict liability through the adoption of the environmental
liability concepts applied in Austria and Portugal. This research employs a normative legal method using philosophical, theoretical, historical, statutory, and comparative approaches. The analysis draws upon Lawrence M. Friedman’s The Legal System Theory, Daniel S. Lev’s Theory of Legal Product Quality, and the Theory of Legal Synchronization, combined with the principles of strict liability, polluter pays, and prevention. The findings indicate that: (1) the evolution of strict liability regulation from Law No. 4 of 1982 to Law No. 11 of 2020 demonstrates a shift from risk-based liability toward fault-based liability; (2) the environmental liability regimes of Austria and Portugal position strict liability as an instrument of prevention and remediation without requiring proof of fault; and (3) the complexity of environmental harm necessitates a reorientation of strict liability toward an environmental liability regime based on prevention, remediation, and ecological justice. Accordingly, this study recommends strengthening strict liability through the construction of an environmental liability regime that integrates the polluter pays principle, preventive obligations, and environmental remediation in order to achieve effective environmental protection and ecological justice.