By: Sandy Prasetya Makal
Director of Law, Human Rights, and Democracy, Partner Indonesia
Environmental cases often bring two different conceptions of time into confrontation. Governments and businesses operate according to development schedules, energy supply requirements, and calculations of investment returns. Communities living near industrial activities experience time differently. They confront changes in environmental quality in their everyday lives, while promises of improvement are deferred to years still far in the future. Between these competing interests, courts are required to explain how far the law permits present-day risks to be borne in the name of future benefits.
This issue came to the fore in Supreme Court Decision No. 46 P/HUM/2025, decided on 6 May 2026. The case concerned a judicial review of provisions allowing exemptions for the construction of coal-fired power plants. The Supreme Court rejected the petition filed by the Indonesian Forum for the Environment Foundation (Yayasan Wahana Lingkungan Hidup Indonesia, WALHI) together with eight individual petitioners. Yet the significance of the decision extends beyond its final outcome. The Court’s reasoning reveals how industrial energy demand, emission-reduction commitments, and the right to a healthy environment were brought together within a single framework of legal reasoning.
The most fundamental issue requiring critical examination lies in the relationship between the existence of environmental requirements and the conclusion that those requirements provide sufficient protection. A regulation may contain emission-reduction targets and limits on the duration of operations. The court must nevertheless explain why those requirements are sufficient to fulfil the environmental protection obligations established by law. It is precisely the distance between the existence of regulatory conditions and the actual assurance of environmental protection that requires deeper scrutiny.
The object of the petition in this case was Article 3 paragraph (4)(b) of Presidential Regulation No. 112 of 2022 on the Acceleration of Renewable Energy Development for Electricity Supply. The provision permits the construction of new coal-fired power plants that satisfy three groups of requirements. First, the plant must be integrated with industries oriented towards increasing the added value of natural resources, or form part of a national strategic project that makes a substantial contribution to employment creation and/or economic growth. Second, it must commit to reducing greenhouse gas emissions by at least 35 per cent within ten years of commencing operations, compared with the average emissions of Indonesian coal-fired power plants in 2021, through technology, carbon offsets, and/or a renewable energy mix. Third, it may operate only until 2050. These three groups of requirements apply cumulatively, while the relationship between industrial activities and national strategic projects under the first requirement is alternative.
This distinction determines the breadth of the exemption. The challenged provision does not concern only one type of industry or one particular company. In the context of extractive industries and mineral processing, including nickel, the issue concerns the policy basis for supplying energy to activities intended to increase the added value of natural resources. Nevertheless, this case remained a judicial review of a regulation. The Supreme Court was not determining the pollution liability of a particular company or assessing the legality of each environmental approval granted to individual coal-fired power plants.
There is an aspect of the judgment that deserves recognition. The Supreme Court accepted the petitioners’ legal standing. In its reasoning on pages 201–204, the panel described the petitioners’ relationship with their living environment, sources of livelihood, and the actual or potential harm arising from the challenged policy. This recognition opens space for citizens to challenge policies before all of their harmful consequences have fully materialised.
The recognition of legal standing does not, by itself, prove that the challenged regulation conflicts with higher legislation. These are different stages of judicial examination. Yet once potential harm has been considered sufficiently relevant to grant access to the courts, examination of the merits should respond to those concerns with reasoning of comparable depth. Recognition of citizens’ vulnerability loses much of its significance if it is not followed by adequate scrutiny of the protections provided by the contested provision.
It is here that progressive legal thought makes an important contribution. Satjipto Rahardjo placed law within a humanitarian mission. In his writings in Jurnal Hukum Progresif, law is understood as an instrument for expressing concern for human beings and collective life. This orientation requires the success of law to be assessed through its ability to serve human life.
Applied to environmental disputes, this perspective invites readers to examine the relationship between the formal validity of a rule and the lived conditions of those who will bear its consequences. Air, water, land, and the sustainability of livelihoods are conditions necessary for a dignified life. A human-oriented interpretation must therefore take into account the ecological conditions that sustain human existence.
Nevertheless, the term “progressive” must be used with discipline. M. Zulfa Aulia cautions that the label of progressive law can easily be attached indiscriminately to decisions perceived as departing from the text of the law. This warning is relevant if environmental critique is to remain academically testable. A judgment granting a petition is not necessarily progressive, just as a judgment rejecting one does not automatically eliminate all progressive value. The assessment must rest on the soundness of the legal basis, openness to knowledge, and seriousness in accounting for the consequences of the decision.
The basis for such an interpretation is available within positive law. Article 28H paragraph (1) of the 1945 Constitution guarantees the right to a good and healthy environment. Article 33 paragraph (4) places sustainability and environmental considerations among the principles governing the national economy. Energy needs and industrial growth must be understood within this constitutional framework. In judicial review proceedings before the Supreme Court, constitutional provisions provide interpretive direction, while the Court’s review authority remains governed by Article 24A paragraph (1) of the Constitution, namely the authority to review regulations below the level of statutes against statutes.
Law No. 32 of 2009 on Environmental Protection and Management, together with its amendments, provides more operational standards. Article 2 sets out the principles of sustainability, justice, precaution, polluter pays, and participation. Article 65 recognises the right to a healthy environment as well as access to information, participation, and justice. These provisions provide a basis for assessing whether a policy exemption continues to protect the interests safeguarded by law.
Before examining the substance of those protections, however, a fundamental issue arises concerning whether the legal authorities relied upon by the Court were up to date. On pages 206 and 209, the Supreme Court relied on Government Regulation No. 79 of 2014 on National Energy Policy to explain the continued utilisation of coal. On page 209, the panel also referred to Presidential Regulation No. 98 of 2021 when finding that the operational limit of 2050 was consistent with the direction of emissions-control policy.
Yet by the time the decision was issued, this legal framework had changed. Government Regulation No. 40 of 2025 on National Energy Policy entered into force on 15 September 2025 and replaced Government Regulation No. 79 of 2014. Presidential Regulation No. 110 of 2025, effective from 10 October 2025, expressly revoked Presidential Regulation No. 98 of 2021 through Article 101. Both changes therefore occurred before the Court issued its decision on 6 May 2026.
Reliance on the earlier regulations may still be meaningful if their purpose was to explain the background against which Presidential Regulation No. 112 of 2022 was adopted. However, reasoning that upholds the continuing validity of a provision with future consequences should also explain legal changes that occurred while the case was pending. In the sequence of reasoning on pages 206–210, this relationship was not elaborated. Readers are therefore left without an explanation of how the newer legal framework affected the panel’s conclusion.
This finding does not automatically render the judgment invalid or mean that all implementing regulations adopted under the earlier framework ceased to have effect. Article 91 of Government Regulation No. 40 of 2025 preserves earlier implementing regulations insofar as they do not conflict with the new regulation. Article 100 of Presidential Regulation No. 110 of 2025 similarly provides for the continued operation of certain implementing regulations under specified conditions. Precisely because such transitional provisions exist, legal reasoning is required to explain the relationship between the old rules, the new rules, and the provision under review.
These changes also have substantive significance. Article 16 paragraph (1)(k) of Government Regulation No. 40 of 2025 directs that coal should be used on a limited basis, particularly where it cannot yet be replaced by low-carbon energy. The provision therefore continues to allow some use of coal, while at the same time making the assessment of energy alternatives relevant.
From the perspective of legal critique, industrial demand for electricity does not by itself answer the broader question of which energy source should be used. Explanation is required regarding the availability of alternatives, barriers to their deployment, the timeframe for transition, and the manner in which risks will be limited while those alternatives are developed. Without such analysis, the argument of energy necessity risks becoming too broad a justification for various forms of exemption.
A similar problem arises in the relationship between permission to use coal and the statutory obligation to prioritise new and renewable energy. Article 6 of Law No. 30 of 2009 on Electricity contains such an obligation. The continued permissibility of coal must therefore be interpreted together with the priority direction established by statute.
A deeper analysis would examine whether the exemption for new coal-fired power plants genuinely supports a transition towards cleaner sources of energy. An exemption may help overcome limitations in electricity supply during a transitional period. Yet an exemption that is too easy to satisfy may also prolong dependence on the energy source that the transition is intended to reduce. Determining where the policy lies between these two possibilities requires more detailed reasoning than simply stating that coal remains permissible.
On pages 208–209, the panel treated emission-reduction requirements as part of an adequate set of limitations. The existence of an emission-reduction commitment was then linked to the conclusion that the provision complied with higher regulations and principles of environmental protection. This relationship is one of the aspects of the judgment that most requires further explanation.
A commitment represents the starting point of an obligation. Its protective value depends on measurable achievement, verifiable implementation, and the legal consequences of non-compliance. Any assessment of the adequacy of an emissions target should therefore explain how that target operates within the broader system of supervision and enforcement. Whether progress is evaluated in stages, what data are used, and how deviations are corrected are questions directly related to the effectiveness of the provision.
Clarity regarding the measurement of emissions is equally important. A reduction in emissions intensity per unit of production may have different consequences from a reduction in total emissions. Where production capacity expands, improvements in efficiency do not necessarily result in lower aggregate emissions. This observation does not assert that either measurement was necessarily used in this case. The point is precisely that the Court’s reasoning should explain which metric formed the basis for its conclusion that the protection provided was adequate.
Likewise, the ten-year deadline cannot be read as permission to disregard environmental obligations during that period. Compliance with environmental standards remains mandatory. Yet the existence of such general obligations does not answer why the particular deadline was selected, what stages of emission reduction are required before that deadline expires, or whether communities are sufficiently protected throughout the period in which the plants operate.
This criticism is directed at the Court’s reasoning. It does not assume that no monitoring mechanisms exist in other regulations. If those mechanisms form the basis for concluding that the exemption is legally safe, the relationship between the relevant regulatory instruments should be made explicit. Doing so would allow readers to evaluate the Court’s conclusion through reference to actual mechanisms of control.
The option of using carbon offsets must also be examined according to the scope of protection it provides. The reduction or sequestration of carbon in one location does not, by itself, resolve problems of environmental quality in communities surrounding a power plant. In environmental legal reasoning, climate protection and the protection of local communities must be examined together. Success against one indicator should not be treated as evidence that all environmental concerns have been resolved.
The 2050 operating limit raises a separate issue. Normatively, a deadline may prevent an activity from continuing indefinitely. Yet an assessment of its adequacy must take into account the impacts generated throughout the operating period. Climate science identifies the accumulation of carbon dioxide emissions and the scale of emission reductions achieved during the present decade as important factors in limiting warming. The phase-out year must therefore be considered alongside the emissions trajectory leading up to that date.
For law, this knowledge creates a need for more complete reasoning. The establishment of a final year of operation does not explain the volume of emissions that may accumulate, the changing conditions that might require earlier review, or protections against harm that may be difficult to reverse. Courts need not calculate climate models themselves. They can, however, assess whether the scientific basis underlying a policy adequately responds to the legal objections raised before them.
The next issue concerns the place of Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan, AMDAL) within the Court’s reasoning. On page 210, the panel emphasised the importance of environmental instruments at the stages of planning, control, and law enforcement. This line of reasoning is understandable. Every activity should indeed be examined through the appropriate instruments. Project-level assessment, however, does not fully answer objections directed at a policy that permits multiple projects to be developed.
Article 44 of the Environmental Protection and Management Law requires the formulation of regulations to take into account the protection of environmental functions and principles of environmental management. Articles 15 and 16, meanwhile, provide the framework for Strategic Environmental Assessment (Kajian Lingkungan Hidup Strategis, KLHS) for policies, plans, and programmes, including assessments of carrying capacity, risks, and climate vulnerability.
This means that the quality of protection must also be assessed at the policy level. If multiple power plants derive their legal basis for construction from a single exemption, their combined impacts may exceed what is visible when each project is assessed separately. Consideration of AMDAL should therefore be supplemented by discussion of the policy’s ability to control such cumulative impacts.
This observation does not conclude that a particular strategic assessment was never conducted. Such a conclusion would require a separate examination of the documents underlying the formulation of the policy. What can be criticised in the Court’s reasoning is the absence of a clear explanation of the relationship between project-level control and the adequacy of policy-level protection. The two perform complementary functions.
It is within this relationship that the precautionary principle assumes particular importance. The elucidation of Article 2(f) of the Environmental Protection and Management Law makes clear that scientific uncertainty cannot be used to postpone measures aimed at minimising or avoiding environmental threats. The principle provides direction where knowledge of risk remains incomplete.
Its application, however, requires precision. Known risks demand preventive action. Uncertainty regarding the magnitude, distribution, or long-term consequences of harm requires proportionate precautionary measures. In both situations, the quality of knowledge must continue to be improved. Uncertainty should not automatically operate to the advantage of those seeking permission to undertake an activity, particularly when its consequences will be borne by others.
The study by Liza Farihah and Femi Angraini on the precautionary principle and potential harm in administrative court proceedings demonstrates the importance of potential loss in environmental protection. Although its procedural context differs from a judicial review of regulations, the study helps explain why protection should not wait until all potential harm has become reality. Its relevance to the present case lies in its preventive orientation, while still respecting the differences in subject matter and judicial mechanism.
The principle of in dubio pro natura extends this discussion to the direction that interpretation should take when doubt remains. Principle 5 of the 2016 World Declaration on the Environmental Rule of Law directs decision-makers, where doubt exists, towards outcomes more protective of the environment and alternatives likely to cause less environmental harm. The Declaration is a soft law instrument, and its status must therefore be distinguished from legally binding regulations in Indonesia.
In this article, in dubio pro natura is used as an analytical approach to the judgment. The principle should not be treated as a shortcut for invalidating every policy that involves risk. Judicial review still requires identification of the relevant norm, demonstration of conflict with the legislation against which the regulation is reviewed, and reasoning that can be legally justified. The contribution of the principle lies in requiring that relevant uncertainty not be resolved at the expense of environmental protection without adequate explanation.
In this case, the question may be asked whether uncertainties concerning the achievement of targets, the effectiveness of carbon offsets, and cumulative impacts were addressed through protections capable of being independently assessed. If the answer depends on future implementation, the court should explain the basis for its confidence in that implementation. Institutional trust gains legal strength when accompanied by discussion of supervision, transparency of information, and the consequences of non-compliance.
The dimension of justice also requires attention to the distribution of benefits and burdens. Downstream industrialisation can generate added value, state revenue, and employment opportunities. Environmental legal assessment must also examine how those benefits relate to the risks borne by communities living around industrial areas. Figures representing national economic benefits do not necessarily reflect the lived experiences of every group of citizens.
For fishers, farmers, and coastal communities, environmental quality is directly connected to their ability to sustain their livelihoods. Loss of access to water or living space cannot always be remedied by economic benefits received by other groups. Arguments based on economic growth must therefore be accompanied by an explanation of how those who bear the most immediate burdens will be protected.
The polluter-pays principle provides direction in ensuring that the costs of environmental control and restoration are not transferred to communities. Applied to coal-fired power policy, the principle invites examination of who will bear the costs if emission-reduction promises are not fulfilled or if activities cause environmental damage. Recognition of the benefits of investment should be accompanied by an assessment of whether environmental costs can reliably be imposed upon the parties responsible.
Intergenerational justice extends this inquiry further. Article 3(f) of the Environmental Protection and Management Law places the interests of present and future generations among the objectives of environmental protection. The year 2050 must therefore be assessed not only as an administrative deadline for power plant operations but also in relation to the environmental conditions that will be inherited.
Future generations do not participate in today’s investment decisions, yet they may inherit their consequences. Legal reasoning that takes their interests into account must ask whether present benefits are being created by narrowing the range of choices available to those who come later. It is here that progressive law can intersect with ecological justice, through attention to human lives that are not yet present within contemporary decision-making processes.
Taken together, these issues suggest that stronger legal reasoning can be developed without the judiciary taking over the government’s authority to formulate energy policy. The Supreme Court could begin by situating the challenged provision within the legal framework in force at the time the decision was rendered. From there, scrutiny could be directed towards the relationship between the necessity of the exemption, available alternatives, the adequacy of the conditions imposed, and the protection of interests guaranteed by law.
Discussion of alternatives would clarify the basis of necessity. Examination of the stages of emission reduction would assist in evaluating the adequacy of the commitment. Explanation of monitoring and the consequences of violations would reveal whether the protections can actually be implemented. Assessment of cumulative impacts and the distribution of burdens would connect national policy to the lived experiences of affected communities.
Such an approach is proposed as a way of evaluating the quality of judicial reasoning. It does not require courts to determine which power-generation technology must be used or to formulate the entire energy transition policy themselves. Within the limits of their authority, courts can nevertheless require argumentative accountability for choices that affect the rights of communities. The broader the consequences of an exemption, the greater the need for reasoning explaining its consistency with statutory law.
The rejection of the petition in this case preserved the validity of the challenged provision. That outcome, however, cannot be extended into an endorsement of all industrial coal-fired power activities. Environmental obligations applicable to each individual activity must still be fulfilled. Questions concerning pollution, environmental damage, or the legality of administrative decisions remain subject to their own distinct objects and legal grounds of review.
Decision No. 46 P/HUM/2025 leaves both achievements and unresolved issues. Recognition of citizens’ legal standing demonstrates that potential environmental harm can have a place within access to justice. At the same time, reliance on legal instruments that had already been replaced and the limited discussion of the adequacy of the regulatory conditions reveal aspects of the Court’s reasoning that warrant serious criticism.
For progressive law, a commitment to life must be realised through careful interpretive work. The precautionary principle, intergenerational justice, and in dubio pro natura acquire meaning when they are used to scrutinise reasoning, test the adequacy of environmental protection, and explain who bears the risks created by a policy.
The promise of the energy transition will ultimately be judged by its implementation. Law has a responsibility to ensure that this promise is accompanied from the outset by clear obligations and enforceable protections. Communities living around industrial areas need legal safeguards that they can rely upon today, while the power plants continue to operate and while the consequences of policy decisions continue to unfold.
References
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