Sidoardjo mud keeps flowing

Down to Earth No. 72 March 2007

The arrival of heavy monsoon rains in Java has made life even more miserable for the thousands of people affected by the East Java mudflow disaster (see DTE 71). The Sidoardjo mudflow, referred to in Indonesian as 'Lumpur Sidoardjo', or simply 'Lusi', which first erupted in May 2006, continues unabated. It has displaced thousands of people, yet, despite overwhelming evidence of criminal negligence, the government has not taken legal action over the disaster. This inaction has prompted the Indonesian Forum for Environment (WALHI) and the Indonesian Legal Aid Institute (YLBHI) to lodge public interest lawsuits relating to disaster.

The first lawsuit was lodged in the Jakarta Central Court by YLBHI in mid-December 2006, in the name of several Indonesian NGOs concerned with human rights and public welfare, including Kontras and HuMA. The YLBHI case is primarily based on alleged violations of rights set out in the 1976 International Covenant on Economic, Social and Cultural Rights which Indonesia finally ratified on 23 February 2006.

The second lawsuit was lodged by WALHI in the South Jakarta district court on 12 February, 2007. Twelve defendants are listed in the suit, including Lapindo Brantas, a company controlled by the wealthy Bakrie family, which owns 50% of the Brantas gas block where the drilling accident occurred. The other companies include Energi International which holds 32% and Australia-based Santos which holds the remaining 18% of the Brantas gas block. Besides the six companies linked to the drilling accident, the suit lists six levels of government, from the government departments responsible for supervising the oil and gas extractive industries - the ministers for environment and minerals and energy - right up to President Yudhoyono.

WALHI's legal standing to bring the case, despite not being a party which has suffered a direct loss, is based on clause 38 of Indonesia's 1997 Environment Law. This provides that properly constituted organisations whose primary focus is environmental protection are entitled to bring lawsuits as a means to that end.

WALHI's case is that due to the actions of the plaintiffs, in permitting, overseeing and conducting the drilling at Sidoardjo, local ecosystems have been destroyed, both those smothered under the mudflow and those affected by runoff, such as local watercourses; more than 8,200 people have been evacuated from the area; 25 ha of sugar cane plantations and 172 ha of rice fields have been destroyed; more than 1,500 homes have been destroyed; various key infrastructure have been disrupted or destroyed; thousands of farm animals have been killed; and local economic activities have been paralyzed in the area. The suit alleges that this damage is likely to continue and expand in future.

The case calls for the companies involved to allocate sufficient funds, equipment and technology to stop the mudflow. It also demands the setting up of a 'national team to repair the damage caused by the Lapindo Brantas hot mud flow', which would have an impact assessment and public reporting role, and would have the capacity to require testimony and documentation in its investigations.

In the case, WALHI requests that the court make an official judgment that the defendants were in breach of the law, and requiring them to conduct environmental rehabilitation to return the affected lands to their original uses, at the cost of the companies involved.

WALHI also calls for the court to require the government to review the companies' Brantas block licenses, and to review the Oil and Gas law (2001) to better ensure environmental protection in the operation of the industry.

The WALHI lawsuit is partly based on the principle of strict liability, which has its roots in English common law of torts. The principle has a legal precedent in Indonesian law as it was cited by an Indonesian judge in a case regarding responsibility for forest fires in Kalimantan. In the WALHI case, it is argued that the parties involved in drilling for gas at Sidoardjo were engaged in an inherently dangerous activity and that the principle of strict liability should be applied, meaning that they are responsible for any resulting damage regardless of their intentions or negligence within the framework of Indonesia's environment law.

WALHI is still awaiting its first day in court, but expects the court to schedule a date in early March.

Indonesia's Coordinating Minister for People's Welfare Aburizal Bakrie has tried to deflect criticism away from himself and his family regarding the disaster. Firstly, his ministerial portfolio means he should have overseen effective government efforts to assist the affected communities and prevent further losses - but government efforts so far have been entirely ineffective and widely criticised. Secondly, as the largest shareholders in the drilling enterprise, Bakrie's family is responsible for negligence which led to the accident and the management of the problem after it began.

Instead of accepting his dual responsibilities, however, during a luncheon briefing of the Jakarta Foreign Correspondents Club on Jan 17th, Bakrie claimed that the mudflow was due to an earthquake which occurred in Yogyakarta several days before the accident, not to his family company's drilling. It was left to President Yudhoyono to make assurances that the government would require the company to pay compensation.

Bakrie's desperate diversion of blame has been rejected by a team of researchers led by Richard Davies of the University of Durham in the UK. This team published a study in the February issue of the peer-reviewed scientific journal Geological Society of America (GSA) Today, which lays the blame for the mudflow at the feet of the gas drilling companies. The report says it appears that the failure of the drilling team to comply with industry standard safety procedures by using a steel casing to protect the well at the high pressures and depths they were working at - 2,830 meters - caused the accident. This finding confirms comments by industry experts advising WALHI in the first days after the accident in 2006, that cost-cutting measures and bribery are commonly undertaken by drilling contractors in Indonesia to allow drilling to proceed faster and more cheaply, to the financial benefit of regulators and gas companies alike.

The University of Durham research team says that mudflow may come to cover an area of 10 square kilometers and continue for years. There is likely to be widespread subsidence over the area, including the development of a crater at the drilling site.

(Source: Gugatan Walhi terhadap PT. Lapindo Brantas Incorporet, dkk Di Pengadilan Negeri Jakarta Selatan [12/Feb/07]; Richard J. Davies, Richard E. Swarbrick, Robert J. Evans, Mads Huuse, 'Birth of a mud volcano: East Java, 29 May 2006', GSA Today, Volume 17, Issue 2 [Feb 2007])