LEGAL SHIFTS AND JUDICIAL INCONSISTENCIES IN STRICT LIABILITY AFTER THE OMNIBUS LAW: A CRITICAL ANALYSIS OF INDONESIAN ENVIRONMENTAL LAW FOR RESPONSIBLE MINING AND ESG COMPLIANCE

Abstract

The legal significance of strict liability in mining arises from the sector’s capacity to generate technically complex, diffuse, and long-latency environmental harm that is difficult to address through fault-based litigation alone. This study aims to evaluate how the post-Omnibus Law reformulation of Article 88 of Law No. 32 of 2009 has affected the doctrinal autonomy, judicial consistency, and practical enforcement of strict liability in Indonesian environmental law. The research used normative doctrinal legal research including statutory, case-law, conceptual, comparative, and evaluative analyses. The data cover the 2009–2025 period and consist of two core statutory formulations of Article 88, the Job Creation Law framework, Government Regulation No. 22 of 2021, Supreme Court guidance, six landmark environmental cases, and peer-reviewed literature on strict liability, responsible mining, and ESG. The analysis identifies three judicial models: (1) Model 1, strict liability requiring proof of tortious conduct, (2) Model 2, strict liability treated as a reverse burden of proof, and (3) Model 3, defined in this study as fault and unlawfulness-independent strict liability based on hazardous activity, environmental damage, and causation. Model 3 is an analytical category developed for this study rather than a formal category expressly codified in Indonesian positive law. This model performs most strongly across five evaluative indicators: doctrinal coherence, burden-of-proof fairness, deterrence, access to justice, and ESG alignment. The analysis suggests that the Omnibus Law's textual ambiguity does not abolish strict liability but increases the risk of inconsistent adjudication, weaker environmental deterrence, and reduced ESG credibility in mining governance. It further indicates that strict liability should remain distinguishable from both Article 1365 Civil Code tort liability and a mere reverse-burden rule. The study recommends statutory clarification of Article 88, Supreme Court-level harmonization, ESG-linked environmental assurance, transparent judicial databases, and localized community access to environmental evidence.