Biofuel at a Crossroads: Sustainability Challenges in Indonesia’s Palm Oil Dominated Sector Issues
Author: Mokhammad Ardafillah, Legal and Policy Specialist with Interest in Sustainability, Development Studies, and Global Affairs
Biofuel has long become one of the energy alternatives that are clean and environment-friendly. This form of energy has been highly developed and encouraged in many countries as an attempt to reduce the high dependence of fossil-based fuel and promote energy diversification (Kismuntoro and Naiola, 2010). Besides, biofuel is said to have some advantages that are appropriate to tackle energy problems. As an energy which is derived from organic material either directly or indirectly, biofuel is renewable, easily degradable, and less harmful to environment (Atadashi et al., 2010). Additionally, its raw material stock is copious and can be easily obtained by cultivating some specific plants and raising animal stock (Putrasari et al., 2016). Because of such qualities, biofuel is projected by a number of experts as the type of renewable energy that can replace fossil fuels in the future (Davor, 2015).
As one of the countries that has abundance of biofuel raw materials, Indonesia has been continuously developing its biofuel industry. A number of pro-biofuels policies have been issued by Indonesian government to boost the utilization and production of biofuels. Among the examples of these are the acceleration of the procurement and usage of biofuels as well as the mandatory biodiesel program. Such measures are taken by Indonesian government as a part of energy diversification program and the commitment to reduce the greenhouse gas under the scheme of the National Energy Plan of Indonesia. As mandated by its National Energy Policy, Indonesia has determined to reduce its use of fossil-based energy, promote the usage of new and renewable energy, and set the target to increase its energy mix to 23% by 2025 (Vide the Government Regulation of the Republic of Indonesia Number 79 of 2016 on National Energy Policy). In this case, biofuel becomes one of the prioritized energy alternatives to achieve such 23% target. In fact, Indonesia is the home for palm oil, one of the raw materials of biofuel, and Indonesian biofuel product is derived from palm oil for the most part.
However, palm oil is associated with environment-related matters. Among of these is land clearing, which is frequently attributed to the clearing of forests, greenhouse gas emissions, and loss of biodiversity (Purnomo, 2020). Besides, palm oil plantation often brings negative social impacts like land tenure disputes (Dhiaulhaq et al., 2015). In fact, it is recorded that the expansion of palm oil plantation within the past years has led to non-sustainable land use practices (Harahap, 2017). Furthermore, the land expansion is also linked to peat exposure, peat land clearance (Austin et al., 2017), and mainly forest fire used to open land. Those, consequently, cause the release of a significant amount of carbon dioxide (Kharina et.al, 2016), which contribute to the risen temperature and air pollution.
In terms of legal framework, it should be noted that the laws pertaining to biofuel in Indonesia are scattered across various regulations. These include, among other, energy law, environment law, plantation law, etc. In fact, biofuel is included in various sectors such as energy, environment, economics, and science that makes its regulation to be governed by many state institutions, ranging from the Ministry of Energy and Mineral Resources, Ministry of Finance, Ministry of Environment and Forestry, and others.
At the same time, there are issues that arise from the provisions of Indonesian biofuel-related regulations. First, there is an incongruence of regulations pertaining to the clearing land for palm oil cultivation. In general, clearing land with the usage of fire is prohibited under the Law of Environmental Protection and Management as well as Law of Plantation. At the same time, such practice in clearing land can be permitted under certain circumstances. Hence, it can be said that there is a regulatory contrary in the use of fire to clear land in Indonesia.
Secondly, in terms of the specific regulation concerning biofuel, there is no provisions that require the variation of materials to produce biofuel. In fact, the basic material of biofuel in Indonesia is still dominated by palm oil. This should be taken into account as palm oil has been typically associated with environmental damage, mainly the clearance of a large tract of forest, and the violation of human rights of indigenous people. Moreover, developed countries have used these arguments to apply restriction toward biofuel imports from developing countries. The Europe Union through its Renewable Energy Directives II (RED II) that has categorized palm oil as unsustainable and high-risk vegetable oil ingredient restricted that leads to the prohibition of all biofuels derived from palm oil is the concrete example of this. Thus, the absence of regulation that encourages the use of materials other than palm oil will affect to the competitiveness of Indonesian biofuel globally.
Analysis
In principle, clearing land by burning is prohibited in Indonesia. Article 69(1)(h) Law of the Republic of Indonesia Number 32 of 2009 on the Protection and Management of Environment has explicitly states that “Everyone is prohibited from committing acts of clearing land by burning”. Similarly, Article 56 of Law of the Republic of Indonesia Number 39 of 2014 on Plantation stipulates that “Every plantation business actor is prohibited from opening and /or managing land by burning”.
However, this provision can be allowed under certain conditions as set out in the Law of Protection and Management of Environment. Under Article 69(2), the use of fire in land clearing can be permitted as long as it takes into account the local wisdom in each area. Further, it is explained that the local wisdom referred to in this provision is burning a land with a maximum area of 2 hectares per head of family for the cultivation of local varieties and the land shall be surrounded by fire partitions to prevent the spread of fire.
If scrutinized, the use of slash-and-burn technique to clear land for plant cultivation like palm oil, in principle, is harmful toward environment. Moreover, that is not in line with the principle of principle of prudent, rational, and sustainable use of natural resources under the concept of energy law that promotes the environment conservation (Heffron et al., 2018). In a more general perspective, such practice contradicts the principle of preventive action, one of the general principles in international environmental law, that requires the prevention of damage to environment and appreciable environmental harm to other states (Sands and Peel, 2018). Thus, at international level, the use of fire for clearing land is basically raised into question.
Furthermore, clearing land by using fire is inconsistent with the 1945 Constitution of the Republic of Indonesia. Article 28H (1) of the constitution states that every person has a right to enjoy a good and healthy environment. The use of fire to clear land will clearly lead to the damage of environment and when it results to the forest fire and fire haze, it will put the health of community in jeopardy.
With regard to indigenous people recognition, the stipulation that may permit Masyarakat Hukum Adat (Indigenous People) to clear land by burning should also be put under scrutiny. It is clear that the 1945 Constitution of the Republic of Indonesia recognizes and respects societies with customary law or indigenous people. However, based on Article 18B of the 1945 Constitution of the Republic of Indonesia, they are recognized as long as they remain in existence and in accordance with the societal development and the principles of the Unitary State of Indonesia, which is regulated by law. Thus, although an entity of customary law community has met the constitutional requirements, they must also ascertain that their actions or customs are in conformity with such requirements.
To sum up, clearing land by using fire can be categorized as an action that is not in line with the societal development as it is not sustainable and environment-oriented given its adverse environmental effects it may result. Even if a customary community or indigenous people have a custom to burn land either for agriculture or non-agriculture, such practice should not be justiciable. Thus, granting rights for customary community to use fire for clear land, albeit with limitations, is contrary to the societal development.
In terms of variations of variation of biofuel raw materials in Indonesia, there are currently no regulations that encourage to do so. Even the specific regulation concerning biofuel in Indonesia, the Regulation of the Minister of Energy and Mineral Resources Number 32 of 2008 on Procurement, Utilization, and Trading of Biofuel as Alternative Fuel does not make reference to the raw materials of biofuel. As the use of palm oil, which dominates biofuel production in Indonesia, is oftentimes criticized due to its association with environmental problems, the use of other raw materials other than palm oil should be taken into consideration in addition to the practice of sustainable land clearing.
Recommendation
In terms of the use of fire to clear land is, the best option to address such an issue is to totally prohibit such practice. This will ensure the absence of loophole for burning land for plantation purposes. While in terms of the high reliance on palm oil for producing biofuel, a policy that promotes the variation of biofuel raw materials is a fit action to encourage the use of alternatives ingredients other than palm oil to produce biofuel.
