Regulating the trees for the forest: How Indonesia and Brazil attempt to reduce deforestation through forestry policy

Regulating the trees for the forest: How Indonesia and Brazil attempt to reduce deforestation through forestry policy

Paul Rink MEM, JD1


Brazil and Indonesia are respectively the first and third most rainforest-covered countries in the world.2 Perhaps as a result of such status, they have each included substantial forest conservation aspirations in their nationally determined contributions (NDCs) under the Paris Agreement. Brazil has pledged to “achieve, in the Brazilian Amazonia, zero illegal deforestation by 2030 and … restor[e] and reforest 12 million hectares of forests by 2030.”3 Indonesia has pledged to “reduce unconditionally 26% of its greenhouse gases against the baseline scenario by the year 2020” by several means, including “through sustainable forest management” and a “social forestry programme.”4

This paper presents a descriptive analysis of the legal and regulatory frameworks that these two countries have put in place to obtain such targets. The paper further compares the two systems so as to better understand the challenges and opportunities Brazil and Indonesia face in obtaining their lofty deforestation reduction aspirations. Although Brazil’s management system is comparatively more robust, analysis ultimately reveals that both Brazil and Indonesia experience similar challenges in enforcing their forest management laws and regulations.

Section II of this paper provides an overview of the legal and political framework for forestry in Brazil, and section III provides the same for Indonesia. Similarly, section IV expounds on challenges that Brazil faces in relation to its forest governance system, whereas section V does the same for Indonesia’s governance system. Section VI compares the two systems and analyzes the similarities and differences of the challenges that they face. Finally, section VII provides concluding thoughts.

Brazil expresses the value it places on its forest resources and on the greater environment in several different constitutional provisions. For one, the Brazilian Constitution explicitly incorporates protection for the various biomes of the country:

[t]he Brazilian Amazonian Forest, the Atlantic Forest, the Serra do Mar, the Pantanal Mato-Grossense and the coastal zone are part of the national patrimony, and they shall be used, as provided by law, under conditions which ensure the preservation of the environment.”5

For another, the Brazilian Constitution recognizes rights to environmental protection more generally – even to the point of restricting exclusive private property rights. According to the Brazilian Constitution, “property shall observe its social function” in accordance with the individual and collective rights of all Brazilian citizens.6 The Constitution then reads environmental preservation into this social function of property7 and gives the government the power to expropriate certain landed property “which is not performing its social function”.8 Furthermore, the Brazilian Constitution recognizes a right to environment that places an obligation both on the Brazilian government and on the wider Brazilian community “to defend and preserve [the environment] for present and future generations.”9

The strong environmental protection language contained within Brazil’s Constitution carries over to its national forest management laws. In 1934, the Brazilian legislature passed the country’s first Forest Code in response to increases in deforestation for the development of coffee plantations. The Code set forth the principle that forests are essential to “the common interests to all inhabitants of the country.”10 Thirty-one years later, in 1965, the Code was updated by Law 477111 to recognize natural vegetation as a “good[] of common interest” for its own sake and not just for its potential economic utility.12

This “New Brazilian Forest Code” underwent further modifications when Law 12,651/2012 (also known as the “New Forest Code”) entered into force in 2015;13 however, the resulting changes to the Forest Code were largely seen as a step backward for forest protection in Brazil due to the following because the New Forest Code

  1. Gave more freedom to Brazilian states to determine (and potentially reduce) the delineation standards for Permanent Preservation Areas (APPs) “according to their interests and needs;”14
  2. Reduced by 58% the amount of degraded land that certain landowners are obliged to restore, thus providing blanket amnesty for large quantities of unlawful deforestation;15
  3. Allowed state officials to significantly reduce Legal Reserve areas of the Amazon if they meet certain requirements.16

At the same time, the New Forest Code also produced some environmentally progressive initiatives. Most notably, it established a satellite-imagery based Rural Environmental Registry (CAR). This registry program has significant potential to facilitate vastly more effective compliance monitoring within legal forest reserve areas.17

Even before the New Forest Code, many programs to combat deforestation had arisen in Brazil. In 2000, Brazil created the National Forest Commission (CONAFLOR) to implement the National Forestry Program and to more broadly further the forest conservation agenda through the development and improvement of forestry laws.18 Brazil also implemented specific programs to help with deforestation efforts, including the 2001 Preventing and Combating Deforestation, Burning, and Forest Fires program, the 2004 Action Plan for the prevention and control of deforestation in the Amazon program (PPCAD), and the 2008 Sustainable Amazon Plan.19

Under the auspices of CONAFLOR, the focus of the National Forestry Program changed from promoting forest protection to promoting forest development in the mid 2000’s.20 This switch of emphasis represented an effort to facilitate alliances with interest groups intent on developing and utilizing forest resources.21 The premise behind the new policy was to promote opportunities to profit from sustainable forest resource extraction rather than to encumber profit potential through command and control regulation.

Further changes in Brazilian forestry management occurred in 2006 with the passage of Law 11,284 which created the Brazilian Forest Service (SFB).22 The SFB was tasked with creating an information system for national forests and providing technical assistance regarding sustainable land use.23 Law 11,284 also decentralized forest management by transferring significant autonomy to create and enforce laws related to environmental crimes from the federal government to the various state governments. Take, for example, the approval and enforcement of individual forest landowners’ forest management plans being moved to the states.24 This transfer of authority theoretically allowed for more stringent laws better tailored to individual state circumstances than federal laws would otherwise be. At the same time, the national forestry regulator – the Brazilian Institute of Environment and Renewable Natural Resources – continued to assist state governments with enforcement activities.25

In addition to these national programs and initiatives, Brazil has historically taken a leadership role in international efforts to combat climate change through reduced deforestation.26 For instance, within international climate change negotiations, Brazil has adopted an ambitious national target to reduce deforestation-related greenhouse gas emissions by 80% of the baseline scenario by 2020.27 Relatedly, Brazil’s national Reduction of Emissions from Deforestation and Degradation (REDD+) strategy aims to contribute to climate change mitigation by eliminating illegal deforestation and otherwise facilitating rainforest recovery.28 The roots of this national program extend back to 2009 when all of Brazil’s state governors presented their respective REDD+ strategies during COP 15 at Copenhagen in December 2009.29 Brazil also signed a Memorandum of Understanding on deforestation with the United States in March 2010 that was intended to facilitate the exchange of practical methods to reduce emissions including carbon markets, research initiatives, and technology transfer.30

In 2017, Brazil officially implemented the Rural Environmental Registry (CAR), the new national land registry established under the 2012 Forest Code reforms, leading to significant reductions in the cost of forest management monitoring and enforcement.31 To register under CAR, landowners must use high-resolution satellite imagery provided by the Ministry of the Environment to identify and register their land holdings. Once registered, the georeferenced survey maps make it much easier for the federal government to catch perpetrators of illegal deforestation.32

CAR was adopted relatively rapidly, indicating that the program offered net benefits for many forest landowners. Several incentives facilitated rapid initial registration rates:

  1. Relatively strictly enforced fines for non-membership in certain states (notably Mato Grosso and Pará);

  2. Resolution No. 3545 (2008) which required documented certification of environmental law compliance in order to qualify for low interest rate public loans;

  3. Public prosecutor and Greenpeace pressure on state slaughterhouses to stop accepting cattle from producers who could not demonstrate adequate environmental law compliance; and

  4. Subsidies from governmental and nongovernmental organizations for the GIS surveys necessary to participate in CAR.33

Through these incentives, CAR has made it prohibitively costly for landowners to remain outside the registry in many circumstances, At the same time, the incentive structure in place to facilitate full or even substantial compliance within the system is not nearly as robust.34 As a result, although registered land holdings initially demonstrated lower deforestation rates than unregistered ones, this trend diminished over time and varied according to property size.35

Like the Constitution of Brazil, the amended Indonesian Constitution explicitly mentions environmental protection and forest management. First, it states that “[e]very person shall have the right … to enjoy a good and healthy environment”.36 Additionally, the Constitution dictates that public resources such as forests are to be considered state property in many circumstances36 – specifically, that public land and any forest resources within it “shall be under the powers of the State and shall be used to the greatest benefit of the people.”37

Also similar to Brazil, Indonesia has historically established strong environmental policies,38 although the implementation of such policies and the enforcement of corresponding laws has often been weak, particularly in relation to forest management. During Dutch colonization, logging was rampant and locally controlled on all islands except for Java where it was tightly regulated.39 In 1967, President Suharto introduced the Basic Forestry Law which placed control of most forested land throughout the country in the hands of the national government.40 In 1970, Regulation No. 21 further established the power of the national government to assign concession rights for lumber harvesting to private individuals. Under President Suharto’s leadership, these rights became more and more concentrated in the hands of a few until five large timber companies controlled approximately 30% of the country’s timber concessions by the mid 1990s.41

With the end of Suharto’s regime in May 1998, President B. J. Habibie, his successor, was eager to reform the forestry sector through a process of decentralization. He started by allowing increased local participation in lumbering activities and by empowering local government officials to grant their own small forest concessions for logging.42 In his rush to decentralize, however, he neglected to establish strong regulatory oversight of these newly decentralized logging practices. The resulting boom in poorly regulated local timber operations led to severe corruption as moneyed concession owners agreed to support local politicians in exchange for regulatory favors.43 As a result, many local politicians considered harvested timber “legal” as long as district taxes were paid regardless of whether that timber was extracted in compliance with national laws.44

Around this same time, cash crop production of other forestry products (i.e. wood pulp and palm oil) escalated substantially. Despite legal prohibitions on clearing land through burning,45 tropical peat forests were rapidly drained and burned to make way for the creation of palm oil plantations.46 During the 1990s, Indonesia participated in multiple international conferences, strategizing sessions, and action plans related to this issue, but the resulting “system of international cooperation” led to limited on-the-ground policies or laws. 47 To date, the few truly effective forest protection policies in Indonesia have been those establishing strict legal protection for High Conservation Value areas.48 Other, weaker protective designations have mostly failed to offer significant protection from forest degradation.

In keeping with its international cooperation efforts, Indonesia signed a Voluntary Partnership Agreement (VPA) with the EU in 2013, to combat rampant illegal logging by reinforcing Indonesia’s 2009 timber legality assurance system. However, this VPA is only able to reduce the damaging impacts of logging insofar as Indonesia’s logging concessions laws provide sufficient protection for the rainforest and the people dependent on its resources.49 Given Indonesia’s politically influential private industry50 and the fact that much deforestation occurs not as a result of logging but as a result of slash and burn land-clearing activities,51 such legal protections can hardly be considered sufficient.

The President in particular and the executive branch more broadly represent the driving force of forestry, land use, and natural resource policy in Indonesia,52 but legal regime reforms around the turn of the twenty-first century have significantly curtailed the President’s ability to act unilaterally in these areas. In particular, Law No. 22 of 1999 on Regional Governance instituted significant decentralization policies within the Indonesian government, channeling significant autonomy in many sectors – including the natural resource management sector – to local jurisdictions and, to a lesser extent, state governments.53

As a result of this decentralization process, provincial and local government regulations can sometimes take precedence over the President’s decrees and regulations. In fact, provincial and local governments can issue and enforce permits that directly contradict those of the President.54 In such situations, the President is likely to be most effective by expressing broad policy goals through presidential decrees and then coaxing subordinate public-sector entities to set agendas and coordinate actions in pursuance of these objectives.

The balance of power tipped yet again with the passage of both Law No. 32 of 2004 and Law No. 23 of 2014, drawing some of the decentralized authority over natural resource management back up to the provincial and national government levels.55 This shift reinstalled some of the President’s original authority over forest regulation but also muddied the jurisdictional waters. The seesawing effect between national and local authority has led to contested control and resulting enforcement confusion which continues to undermine the effectiveness of applicable forestry laws and regulations.

Further limits on the President’s power to enact resource policy compound the confusion. For example, the President’s management power is also strictly checked by the legislative branch of government – particularly the Peoples’ Representative Council (DPR). Constitutional reforms during the turn of the twenty-first century led to amendments that severely curtailed the President’s historic legislative abilities.56 Following these reforms, the President can propose bills to DPR, but does not have the power to institute laws outright.57 In addition, although the president can still enact unilateral regulations and decrees related to intended policies, they are subject to DPR scrutiny and modification.58

This reliance on legislative approval can prove debilitating for intended presidential reform given the coalition-based nature of Indonesia’s political system. Because Indonesian parliament has never been controlled by one specific party, the president must rely on alliances with multiple parties to obtain approval for policies requiring majority vote.59 Previous presidents have attempted to encourage as much participation as possible in a coalition style of governance, but this can lead to instability due to implicit difficulties in coordinating many parties with differing agendas and interests.60

Perhaps even more destabilizing, presidential regulations and decrees are subject to alteration or elimination by subsequent presidents. In order to avoid significant risk of presidential successors overriding these presidential decrees, a sitting president must convince the DPR to convert presidential decrees and regulations into more permanent governmental regulations.61

At the same time, having the support of a large funding institution can make it politically infeasible for parliament to oppose policies even if it does not support them. For example, President Yudhoyono announced that Indonesia would be implementing carbon emission reduction targets in 2010 and then signed a Letter of Intent for financial support with the Norwegian government.62 This agreement required the President to impose a moratorium on issuing new licenses to companies intent on degrading peatland and other forested lands. He enacted this moratorium without input from the legislature, but it has nevertheless remained in place.63 As such, it seems probable that Parliament either implicitly endorses this moratorium or that the economic incentives involved in Norway’s financial pledge have made legislative alterations to this moratorium difficult to enact politically.

Beyond the presidency, the wider executive branch also experiences significant checks on its forest management policy-making abilities. Although the Ministry on Forestry and the Environment has ultimate authority to administer public lands and forests, conflicts with local jurisdictions following the decentralization of Indonesian governance have hindered its effectiveness.64 Additionally, it has a conflicting dual mandate to both increase Indonesia’s exports and to simultaneously put regulations and policies into place that preserve forest resources.65 Trying to balance both of these interests through an effective regulatory scheme can be difficult. Partly due to the difficulty in creating regulations that appease this dual mandate, Indonesia has created an overly complex regulatory system that its governmental ministries are ill-equipped to enforce.66

Compounding these difficulties, President Joko Widodo, who replaced President Yudhoyono in 2014, combined the original Ministry of Forestry with other ministries in 2015, thereby creating the new Ministry on Forestry and the Environment (MoEF).67 The new expansive mandate for MoEF left the mandate and priorities for forest management somewhat opaque. In 2015, President Joko Widodo gave an indication of the low importance he places on forest management by discontinuing the Reduction of Emissions from Deforestation and Degradation (REDD+) agency.68 He promised to reestablish REDD+ under MoEF, but exactly how it will fit into this new institutional structure remains unclear.69

Challenges for Brazil’s Forestry Policy

The major challenge for the future of Brazil’s forest management regime is in matching up its strong forestry legislation with strong enforcement capacity. For example, low permanent personnel numbers as well as inadequate operating budgets have created a general impression that enforcement agencies lack capacity to punish those who fail to abide by forest management policy provisions.70 Exacerbating the problem further, the Brazilian Forest Service (SFB) does not even have the authority to hire permanent workers, just temporary ones.71 Furthermore, the states with the least enforcement capacity tend to be the vast Amazon states which experience the most logging issues.72 The resulting lack of institutional presence has contributed significantly to continued illegal deforestation.73

In addition, the lack of consistent punishment diminishes the effectiveness of Brazil’s forest management policies. Most illegal deforestation fines go unpaid and illegal logging equipment goes unconfiscated due to overburdened courts, an overly complicated review process, and loopholes in enforcement laws.74 These issues are often compounded by elements of regulatory capture that allow political patronage groups aligned with the timber industry to obtain favorable policies and decisions at the local level.75

Delays in regulatory rollout are also hindering the efficacy of Brazil’s forest management policies. For example, only states with completed forest management plans and rainforest inventories can receive bids for federally approved private concession project sites.76 Although SFB has contracted several inventories and is developing corresponding sustainable forest management plans, the time necessary to conduct these activities is substantial.77 As a result, program implementation has encountered significant delays.78

Rollout of financial support for deforestation policies has also been slower than optimal. The main program for REDD+ finance in Brazil is called the Amazon Fund. The governments of Norway and Germany, as well as the state-owned Brazilian corporation, Petrobras, contribute compensation donations to the Amazon Fund. In theory, the donated money is then disseminated to specific reforestation activities79 including support for small-scale farming, satellite monitoring, research, traditional communities, stakeholder engagement, institutional strengthening, etc.80 However, onerous bureaucracy and processing inefficiencies have been the cause of delays in distributing funds to these projects.81 As of 2016, only a little over 50% of the 1 billion USD disbursed into the Amazon Fund had been distributed to institutions.82

This poor dispersal of funds has led to a wide gap between the amount of payment for emissions reduction and the actual reductions achieved within the country. Payments from the Amazon Fund to Brazil for reductions amount to less than 10% of what Brazil has actually been able to achieve.83 This underpayment is likely a contributing factor to the increase in deforestation that occurred in 2015 and 2016 after years of declining rates.84 To make matters worse, Brazil’s economic recession has cut the internal government budget for reforestation strategies substantially.85 The policies that were so helpful in bringing down Brazil’s deforestation rate by 75% during the early twenty-first century86 are unlikely to continue being so successful in the wake of these financial problems.

Fundamental issues related to enforcement capacity are not the only problems Brazil faces in relation to its forest management practices. Several other factors embedded in Brazil’s policy and regulatory frameworks represent obstacles to successfully implementing its forestry policies.

First, numerous, demanding regulations are impractical or impossible for forest operators to reasonably satisfy.87 This problem is only exacerbated by the confusing jurisdictional changes that Brazil has undergone in the twenty-first century both in relation to decentralization and to legislative reform.88 In addition, Brazil’s Rural Environmental Registry (CAR) program has unrealistic expectations for compliance given the incentive structures it has put in place.89

Second, land tenure may not always be easy to identify or may be disputed particularly in indigenous peoples’ territories.90 REDD+ is difficult to implement when it is not clear to whom accountability should be assigned for a particular piece of land. This challenge exists both in terms of potential punishment for deforestation activity and in terms of potential payments for abiding by forest restoration requirements.91

Third, weak environmental safeguards in other sectors may counteract reforestation efforts.92 For instance, every kilometer of road built through the Brazilian Amazon leads to approximately 400 – 2,000 hectares of destroyed rainforest.93 Additionally, large-scale infrastructure projects, persistent credit programs that promote rural cattle farms, and the globalized trade in Brazilian commodities such as minerals and soybeans all link to Brazil’s rate of deforestation.94 Different ministries within the government often have diverging priorities and objectives, further exacerbating this issue. As an example, the Ministry of Agriculture has forecasted significant increases in livestock production and beef exports of 52% and 93% respectively over the coming decade.95 Meanwhile, the Ministry of Environment has set a goal of obtaining 40% of Brazil’s target carbon emissions baseline reductions from decreased deforestation.96 Reconciling this predicted increase in livestock production with deforestation reduction goals will undoubtedly prove difficult,97 particularly given the National Forestry Program’s recent switch of emphasis from forest protection to forest development.98

Fourth, recent jurisdictional reforms may threaten existing environmental protections.99 For example, Law 11,284’s decentralization of natural resource policies creates particular challenges for REDD+ in Brazil. These challenges vary depending on context but often involve inadequacy of institutional capacities for enforcement, a lack of transparency in implementation, and elite capture of benefits.100 In addition, Brazilian states’ newly established authority to adjust standards for Permanent Preservation Areas under the New Forest Code threatens the protected status of many forested locations.101

Challenges for Indonesia’s Forestry Policy

Unlike Brazil, Indonesia’s major challenge lies not in refining the enforcement of its regulations but in fully establishing a robust regulatory framework for forest governance. In particular, the rapid decentralization of Indonesia’s government since 2001 has led to many challenges for instituting robust forestry policies. For one, governance structures were not clearly laid out during decentralization, leaving division of power largely ambiguous between various levels of government.102 The legislative shift of certain oversight and management authority back to the federal government through Law 32 in 2004 and through Law 23 in 2014 was intended to remedy this issue,103 but it ultimately created further jurisdictional confusion.104 Another challenge is that decentralization (along with thorough legislative oversight) hinders the policy-making ability of the President to fulfill his mandate of creating effective natural resource management policy.

The jumbled nature of Indonesia’s forestry policy significantly undermines market-based efforts to protect its rainforests. Indonesia’s efforts to reduce deforestation (including those under the REDD+ program) are focused primarily on the commodification of forest ecosystems in attempts to conserve the resources that they provide. Such neoliberal policies rely on strong legal structures and governance capabilities as preconditions to achieve reductions in tropical rainforest deforestation.105 Because Indonesia struggles with regulatory coherence and capacity to effectively institute its governance frameworks, however, such economic policies may lead to ecologically destructive effects.106

These destructive effects may come about in many ways. One way is through profit-seeking entities taking advantage of regulatory incoherence and poor enforcement. For example, programs like REDD+ and the Roundtable on Sustainable Palm Oil (RSPO) attempt to financially reward companies that take steps toward forest conservation either directly (typically through payments) or indirectly (typically through certifications).107 However, these programs are plagued with difficulties particularly related to oversight and verification. Industry actors have strong incentives to cover up potential transgressions of program standards, and auditors often face similar pressures to look the other way due to some combination of insufficient capacity, a willingness to assume industry’s good faith behavior by providing benefit of the doubt assessments, or outright collusion.108 These pressures may be coming not only from industry actors but also from local government officials keen to see economic boosts from industry activity.109 In addition, despite structures created within these programs to ensure multi-stakeholder engagement, companies seeking a particular certification or reward tend to dominate the conversation.110

Relatedly, corruption in the natural resources sector threatens to undermine REDD+ and other deforestation reduction efforts. Political appointments for industry executives as well as “complex and informal webs of influence and exchange”111 between government and industry tycoons are emblematic of this corruption.112 Evidence exists that parliamentary decisions are driven largely by industry rather than by voters. Furthermore, of Indonesia’s twenty-one billionaires, sixteen earned their fortunes through oil palm plantation investments,113 and certain companies maintain historic close ties with decision makers in government agencies related to the forestry sector.114 To circumvent powerful and corrupt vested interests in governmental ministries, ad hoc programs such as the REDD+ Task Force often arise to conduct the boots-on-the-ground implementation work with which higher level agencies have been tasked.115 Such programs may work to an extent as a second best solution, but they typically involve a high level of institutional inefficiency.

Comparison of Forestry Policy in Brazil and Indonesia

Brazil and Indonesia are both part of the Global Forest Legislation Initiative, a collaboration intended to facilitate strong forest governance across participating countries.116 Both countries have environmental preservation and, more specifically, forest management provisions in their respective constitutions and legislative frameworks.117 Furthermore, both have also signed agreements with Norway to protect their respective rainforests in exchange for money through the REDD+ program.118 Yet, Brazil and Indonesia continue to encounter difficulties in achieving consistent, effective rainforest protection.

In some ways, their difficulties are very similar:

  1. They both have recently decentralized, leading to weakened or unclear environmental protection regimes.

  2. They both lack clarity on crucial issues such as land tenure rights or overarching governance structures, thus hindering the optimal implementation of their respective forestry policies.

  3. Competing incentives from various government agencies and industry in both countries threaten to reduce forest protections.

  4. They both lack capacity or motivation to adequately enforce the laws and regulations they have put in place.

There are many things that both countries could do to chip away at these shared problems. Regarding the first and the second, one approach that both countries could take would be to enhance their existing national-level policies to better accommodate unique local situations and regulatory regimes. For decentralized forestry policy to work, states need to feel empowered and capable of regulating themselves. The national government should facilitate these sentiments through an appeal to community buy in, supporting capacity building in regions where it is necessary while focusing on more facilitative policies where it is not.119 Not only would such a “bottom-up” approach potentially help reduce regulatory confusion, but a corresponding increase in local ownership and involvement would also potentially increase the likelihood of compliance. Even better, these interventions are not outside the realm of feasibility. The decentralized governance systems in Brazil and Indonesia could actually help facilitate such a strategy.120 At the same time, in order to better harmonize rules across jurisdictions and to avoid a regulatory race to the bottom, the two national governments could install federal regulatory floor requirements for all regional or local forest management policies.121 These minimum requirements would serve as a response to the third difficulty by helping ensure a base level of risk-alleviating, regulatory uniformity (leading to predictability for the benefit of industry players) while also allowing more ambitious regions, states, or municipalities to increase environmental protection standards if desired.

Of course, these proposed solutions would come with many difficulties of their own and would not offer complete solutions. In Indonesia in particular, the many checks on the executive branch’s power to enact forestry policy would make such national-level changes challenging. Both Indonesia and Brazil would face resource limitations, industry pushback, and other obstacles.

In the same way, efforts to address the fourth difficulty by attempting to increase enforcement would be unlikely to provide a complete solution due to the remoteness and inhospitable terrain of the rainforest in both Indonesia and Brazil.122 Diminishing rates of return from continuously increasing monitoring efforts suggest that economic cost-benefit considerations will preclude the complete elimination of possible deforestation detection loopholes and blind spots. In addition, criminal penalties for deforestation tend to more heavily punish the least powerful drivers of the harm (i.e., local timberman or small-scale landowners). As such, penalty shifting toward larger scale drivers of illegal deforestation would be crucial for effective and equitable enforcement of forestry law.123 Alternatively, local empowerment activities that counteract deforestation incentives (e.g., community forestry programs, benefit sharing arrangements, and equitable forest ownership initiatives) would likely prove more effective than strict criminal enforcement paradigms in the long run.124 Such programs, however, require significant capacity, including large financial and human capital investments that Brazil and Indonesia are unlikely to procure easily.

Despite the significant similarities in many of their forest management issues, on a more fundamental level, Brazil and Indonesia differ in their struggles with forest governance. Brazil is currently working through difficulties related to establishing the right incentive structure to ensure widespread compliance with its already developed laws and regulations.125 Indonesia, on the other hand, is still struggling to create a clear and effective legislative and regulatory framework for forest governance despite already having strong environmental legislation on the books.

One of the main reasons the various forest management reforms and initiatives that Brazil has developed over the last few decades have lasted so long is because of widespread citizen approval. For example, the 2004 Action Plan for the Prevention and Control of Deforestation in the Amazon (PPCAD) garnered broad support both from the public and from high-levels of government. Strong collaborative linkages across thirteen governmental ministries – as well as two federal policing agencies and the nation’s armed forces – buoyed forest governance initiatives in the face of grumblings from vested interest groups.126 In line with broad public support for forest protection, over 19 million hectares of Brazilian rainforest were designated as federally protected land between 2003 and 2008.127 Estimates indicate that 36% of the reduction in deforestation rates between 2004 and 2008 can be directly attributed to these designations of protected lands.127

Indonesia, on the other hand, has not been able to similarly develop a citizen-supported, integrated forest management legal framework for many reasons. First, the President, as the main driver of forest management policy, is checked by legislative oversight and decentralization processes.128 The influence that private industry has over the policy-making process129 means that presidential policy development for forest management is only possible if it is both incremental and supported by some level of industry buy in. The resulting watered-down legislation leads to a weak and confusing legal framework quite different from Brazil’s more robust forest management governance structure.130 As a result, there is a lack of regulatory and legislative strength to bridge the gap between aspirational national forest policy and local incentives for citizens to illegally exploit the natural resources available to them.131

In lieu of substantial forestry legislation, Indonesia primarily relies on a makeshift “private regulation” system in which international consumers’ increasing demands for sustainable supply chains and for rainforest preservation have encouraged industry actors to self-regulate through participation in certification schemes.132 Unfortunately, the monitoring and evaluation processes that grow out of such private regulation struggle to accommodate interests at all scales and within various sectors.133 Brazil also uses similar private regulation approaches, most notably in the certification processes embedded in programs like REDD+, but combines such approaches with a robust regulatory framework to effectively scale and distribute incentives and benefits. Without similar fortifying regulations, Indonesia is not able to use its private regulation approaches as successfully.

Another important difference between the forest management struggles of the two countries relates to recent governance shifts that have exacerbated already existing difficulties for each country. In the case of Indonesia, President Joko Widodo’s discontinuation of the REDD+ agency and general restructuring of governmental ministries related to environmental protection a few years ago have made the national government’s regulatory authority unclear in many circumstances. This lack of clarity only compounds the jurisdictional confusion brought about through the decentralization process during the turn of the twenty-first century. Unfortunately, Indonesia is in desperate need of the opposite: more transparent allocations of enforcement authority for environmental regulations. As a result, these contemporary reforms to Indonesia’s environmental regulatory framework represent a step away from effective forestry management.

Recent reforms in Brazil – namely the 2012 Forest Code reforms – similarly highlight and compound the struggles with forestry governance that Brazil is already facing, although these difficulties are distinct from those of Indonesia. At first glance, it may seem that the “New Forest Code” is something of a mixed bag, providing some improvements and some setbacks. After all, the New Forest Code did establish the CAR system for satellite-imagery based monitoring to enforce REDD+ compliance. Yet, the obstacles to effective environmental governance that this legislative reform created undercut any improvements in monitoring.

Forestation policies in Brazil have led to success historically, reducing deforestation rates by as much as 75%.134 This past success implies that the low hanging fruit for deforestation reduction has already been achieved. Thus, in order to obtain further deforestation reductions, programs like REDD+ need to look in harder to reach places. The New Forest Code attempts to do so but ultimately shoots itself in the foot by creating incentives that discourage compliance with its own provisions.

To remain in full compliance with the CAR program, landholders must also remain in full compliance with the 2012 New Forest Code which requires them to maintain a certain percentage of owned land with its natural vegetation.135 Many farmers with smaller land holdings felt heightened government scrutiny when they first registered under CAR but that feeling seems to have dissipated over time, often to the point where the benefits of minimal clearing activities outweigh the risk of disciplinary fines.136 The emerging strategy for illegal lumbering in CAR zones is to cut high-value trees sparsely so that harvest is not easily apparent using remote sensing monitoring techniques.138 Federal and state officials have confirmed that logistical difficulties in inspecting on-site deforestation events forestall close monitoring and punishment of such behavior. The resulting lack of prosecution for illegal timber harvesting quickly leads to diminished compliance. Thus, many landholders – even those within the CAR system – are engaging in small-scale, unlawful deforestation practices with the realistic expectation of impunity.137

Furthermore, full compliance with CAR requires more than just conservation and deforestation prevention. Law 12,651 of 2012 which established the New Forest Code imposes an obligation on land-owners to remediate previously forested land that they own even if they did not actually cause the degradation themselves.138 When deciding whether or not to comply with this aspect of the CAR program, farmers take into account compliance incentives, restoration costs, opportunity costs of foregone agricultural activities on the deforested land, the likelihood of legal regime change, and the likelihood of being caught and fined for noncompliance.139

This cost-benefit analysis typically leans even further toward non-compliance than decisions related to whether to comply with deforestation prohibitions. Economic rewards for compliance are relatively minor (a 15% increase in available subsidized loans), risks of punishment are low, and costs (both in terms of reforestation costs and opportunity costs related to foregone timber and agricultural products) are often prohibitively high.140 Absent a strong incentive like the soy and beef moratoria on non-CAR registered products,141 farmers are unlikely to comply with restoration requirements because of these strong countervailing incentives.142

Motivations to comply with land remediation requirements are weak not only because the corresponding economic benefit is too low but also because it can only be achieved through full rather than incremental compliance. Currently, there is no financial incentive to remediate denigrated land unless the landholder can remediate enough of it to obtain the Legal Reserve percentage threshold. In fact, this policy creates perverse incentives in at least two respects. (1) It encourages land holders to sell denigrated land on the market place rather than attempting to obtain relatively miniscule benefits under the CAR forest restoration program. (2) It encourages good faith land holders to avoid buying new tracts of denigrated land in case those tracts may push them under the Legal Reserve percentage threshold across all of their land holdings.

In addition, the 2012 revisions to the Forest Code have further weakened incentives for full compliance with CAR in the following ways:

  1. They forgave fines for illegal deforestation that occurred prior to 2008, and

  2. They decreased the area required for restoration and preservation by varying amounts dependent on the region.143

This lowering of standards and amnesty for prior illegal behavior discouraged compliance with CAR requirements because it basically forgave noncompliance. In addition to providing an economic payoff to illegal deforesters before 2008 and implicitly punishing those who complied with the deforestation laws, these reforms also decreased incentives to comply with the Forest Code writ large because of the potential expectation that it will continue to weaken over time.144 Stricter monitoring and enforcement through personnel increases and improvement in satellite monitoring technology could potentially counteract this perception in the future, but these developments have not yet occurred.145

Thus, the New Forest Code exacerbates Brazil’s biggest current problem in forest management: the failure to fine-tune regulations to ensure optimal compliance with its robust management framework. It represents a step away from a maximally effective forest management program in Brazil.

At the same time, it is worth considering what such a “maximally” effective forest program would look like. In relation to the rainforest restoration requirement under the CAR program in Brazil, 18% of surveyed landholders “said they would never compensate or restore their forest debts” even if faced with severe restrictions on their forest products imposed by both private and public actors.146 Thus, it seems that even incredibly strong enforcement could never ensure full compliance with the requirements of the CAR program, presumably because those requirements are too lofty given current incentive structures.

In the context of Indonesia, similarly ambitious goals have been co-opted by bad faith actors who feign environmental stewardship. The Indonesia Palm Oil Pledge (IPOP) was established in 2014 as a partnership of major private sector industries in the palm oil sector. The stated goal of the initiative was “to work towards sustainable palm oil that is deforestation free, respects human and community rights and delivers shareholder value through collaborative multi-stakeholder efforts.”147 Yet, due to a misunderstanding of the complexities involved in their own supply chains, many of the participants committed to achieve untenable goals, such as blanket prohibitions on deforestation regardless of forest type.148 Although one might praise these organizations for making such high-minded commitments despite the difficulties in obtaining them, a more cynical observer may accuse them of setting targets they never intended to achieve in order to placate their increasingly sustainability conscious consumer base.

Given these considerations, it seems as though incentive structures based on unrealistic targets may be counterproductive in many circumstances. By assuaging environmentally concerned actors without any significant increase in actual environmental protection, they threaten to act as a placebo when real medication is required. Perhaps providing rewards (or requirements) for incremental improvements in environmental stewardship may be a more effective way to achieve real environmental results despite the resulting loss of aspirational idealism.


Brazil and Indonesia share many similarities both in the structure of their respective forest governance systems and in the corresponding issues these systems face. At a macro scale, the primary difference between the two rests in the fact that Brazil has a more firmly situated system of forestry governance than Indonesia. Yet, both countries struggle with similar lack of enforcement capacity, lack of clarity on crucial aspects of forestry policy, complications resulting from recent jurisdictional reform, and difficulty in creating appropriate incentives for regulatory compliance.

One of the more interesting similarities between the two countries is the ambitious targets found in their respective governance systems.149 Despite this ambition, Indonesia and Brazil create poor incentives for changing behavior – Brazil by setting difficult-to-reach objectives for individual landowners that risk alienating even initial attempts to achieve them150 and Indonesia by neglecting to establish a clear and well-enforced regulatory framework that requires citizens and industry to take its deforestation goals seriously. In order to live up to their impressive forest management aspirations, Brazil and Indonesia will first have to find ways to address these respective issues.



  1. Paul Rink is a current J.D. candidate at Yale Law School and M.E.M. candidate at Yale School of Forestry and Environmental Science. He is a 2017 Salzburg-Cutler Fellow for International Legal Scholarship and is the recipient of a 2018 Tropical Resources Institute research fellowship. This paper is a reprint of: Rink, P. 2018–2019. Journal of Animal and Environmental Law 10.

  2. Joseph Kiprop, 5 Countries with The Largest Rainforest Coverage, WORLD ATLAS (July 14, 2017),….

  3. Federative Republic of Brazil, Intended Nationally Determined Contribution, 3 (Sept. 21, 2016),… english%20FINAL.pdf.

  4. Republic of Indonesia, First Nationally Determined Contribution, 7 (Nov. 6, 2016),… donesia_submitted%20to%20UNFCCC%20Set_November%20%202016.pdf.



  7. Marcia Fajardo Cavalcanti de Albuquerque, Biodiversity and Agriculture – Friends or Foes? The Legal Implementation of Agroforestry Practices in Brazil, in IUCN ACAD. ENVTL. L. SERIES, PROTECTING FOREST & MARINE BIODIVERSITY: THE ROLE OF LAW 141 (Ed Cozens, et al., ed., 2017); CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, THIRD EDITION 2010, art. 186.



  10. Decreto No. 23.793, de 1934 (Braz.).

  11. Simone Bauch et al., Forest Policy Reform in Brazil, SOC. AMER. FORESTERS 132, 134 (Apr./May 2009).

  12. Thiago Bandeira Castelo, Brazilian Forestry Legislation and to Combat Deforestation Government Policies in the Amazon (Brazilian Amazon), XVII(4) AMBIENTE & SOCIEDADE 215, 217 (Oct.-Dec. 2015).

  13. Id. at 229.

  14. Id. at 219-20 (noting “that the new text provides for the reduction of the minimum extent of [APPs] from the current 30 meters to 15 meters of marginal range, [sic] and marks the riparian forests protected from minor riverbed and not the highest level of travel water”).

  15. Britaldo Soares-Filho et al., Cracking Brazil’s Forest Code, 344 SCI. MAG. 363 (Apr. 25, 2014); See also, Federico Machado & Kate Anderson, Brazil’s New Forest Code: A Guide for Decision-Makers in Supply Chains and Governments, WWF-BRAZIL 47 (2016)… _guide.pdf?1455912714 (indicating that this 58% reduction occurred because the New Forest Code eliminated the requirement for owners of rural land holdings of a small enough size to compensate for illegal deforestation that occurred prior to July 22, 2008).

  16. Andrea Azevedo & Tiago Reis, Brazil’s Forest Code - Assessment 2012 – 2016, AMAZON ENVTL RES. INST. 39 (Feb. 2017),’s_Forest_Code_-Assessment_2012-_2016 (noting that Article 12 Paragraph 5 of the New Forest Code allows state authorities to “reduce to 50% (fifty percent) the Legal Reserve areas, if and only [if[ the state has its [Ecological-Economic Zones] approved and more than 65% of its territory occupied by conservation units of public domain and/or indigenous territories”).

  17. Castelo, supra note 12, at 229.

  18. Bauch et al., supra note 11.

  19. Castelo, supra note 12, at 222-26.

  20. Bauch et al., supra note 11.

  21. Id.

  22. Id. at 135.

  23. Id. at 136.

  24. Id. at 135.

  25. Castelo supra, note 12, at 227.

  26. Ana Carolina Bastida, Mariano Colini Cenamo, & Gustavo Silva Chávez, Mapping REDD+ and Land Use Financial Flows in Brazil: National and Subnational Analysis for the Period 2009 through 2016, FOREST TRENDS REDDX 28 (Jul. 2017),

  27. Peter May, Brent Millikan, & Maria Fernanda Gebara, The Context of REDD+ in Brazil: Drivers, Agents, and Institutions, 2 CIFOR 17 (2011)

  28. Carlos A. Klink, The Implementation of the Warsaw Framework for REDD+ by Brazil, FED. REP. BRAZIL 17 (Nov. 2015),

  29. May et al., supra note 28, at 18.

  30. Id. at 19.

  31. Andrea Azevedo, et al., Limits of Brazil’s Forest Code as a Means to End Illegal Deforestation, National Academy of Sciences 7653, 7654 (Jul. 18, 2017).

  32. Id. at 7653.

  33. Id. at 7654-55.

  34. See infra text accompanying notes 133-147.

  35. Azevedo et al., supra note 32, at 7653.



  38. Nicholas A. Robinson, For Pete’s Sake: Environmental Law Amidst the Bogs, in IUCN ACAD. ENVTL. L. SERIES, PROTECTING FOREST & MARINE BIODIVERSITY: THE ROLE OF LAW 53, 78 (Ed Cozens, et al., ed., 2017).

  39. Krystof Obidzinski & Koen Kusters, Formalizing the Logging Sector in Indonesia: Historical Dynamics and Lessons for Current Policy Initiatives, 28(5) SOC. & NAT. RES. 530, 532-33 (2015).

  40. Id. at 533-34.

  41. Id. at 534.

  42. Id. at 535.

  43. Id. at 535-36.

  44. Id. at 536.

  45. Indonesian Law No. 32/2009 on the Protection and Management of Environment; Indonesian Government Regulation No. 4/2001 on Management of Environmental Degradation and/or Pollution linked to Forest or Land Fires.

  46. Robinson, supra note 40, at 78.

  47. Nicholas A. Robinson, Forest Fires as a Common International Concern: Precedents for the Progressive Development of International Environmental Law, 18 PACE ENVTL. L. REV. 459, 478 (2001).

  48. Robinson, supra, note 40, at 79.

  49. Obidzinski & Kusters, supra, note 41, at 531.

  50. See infra text accompanying notes 108-112.

  51. See supra text accompanying notes 47-48.

  52. Ardiansyah et al., supra note 38, at 13; see, e.g., infra text accompanying notes 62-63.

  53. Id. at 6.

  54. Id. at 13. But see, Id. at 42 (noting that the national Ministry of Housing Authority (MoHA) has the power to revoke local regulations and policies that conflict with national priorities. A high proportion of rescinded local policies came from heavily reforested areas thus suggesting the local forest management policy may be especially likely to poorly align with regulations in higher levels of government.).

  55. Id. at 1.

  56. Cecilia Luttrell, The Political Context of REDD+ in Indonesia: Constituencies for Change, 35 ENVTL. SCI. & POL. 67, 69 (2014).

  57. Ardiansyah et al., supra note 38.

  58. Luttrell, supra note 58, quoting Koichi Kawamura, Is the Indonesian President Strong or Weak?, INST. DEV. ECON. 23 (2010) (“[A]ny president wishing to implement his own policies has needed to obtain approval in the form of parliamentary legislation.”).

  59. Luttrell, supra note 58.

  60. Id.

  61. Ardiansyah et al., supra note 38, at 13.

  62. Luttrell, supra note 58.

  63. Id.; see also Robinson, supra note 40, at 59-60, 83 (noting a lack of resources devoted to implementation of this moratorium led to insufficient enforcement. Some new concessions were thus created despite the moratorium although the overall rate of new concessions went down.).

  64. Ardiansyah et al., supra, note 38, at 72.

  65. Id. at 18.

  66. Vice Minister of National Development Planning, Indonesia Revised Draft REDD+ Strategy 8 (Sept. 24, 2010),… (noting that forestry regulations must be clarified and condensed in order to address the “sheer number and complexity of overlapping, inconsistent, and contradictory regulations in the forest sector which provide ample opportunity for administrative corruption”).

  67. Indonesian Presidential Regulation No. 16 of 2015.

  68. Ardiansyah et al., supra note 38, at 23.

  69. Id.

  70. Bauch et al., supra note 11, at 136.

  71. Id.

  72. Id.

  73. May et al., supra note 28, at 20.

  74. Id.

  75. Id.

  76. Bauch et al., supra note 11, at 137.

  77. Id.

  78. Id.

  79. Bastida et al., supra note 27, at 8.

  80. Id. at 11.

  81. Id. at 3.

  82. Id. at 8.

  83. Id. at 28.

  84. Id.

  85. Id. at 13.

  86. Id. at 12.

  87. Arnoldo Contreras-Hermosilla, People, Governance and Forests – The Stumbling Blocks in Forest Governance Reform in Latin America, 2 FORESTS 168, 171 (Nov. 2. 2010).

  88. See supra text accompanying notes 10-17, 23-26.

  89. 89 See infra text accompanying notes 132-146.

  90. Contreras-Hermosilla, supra, note 89, at 173.

  91. May et al., supra, note 28, at 31.

  92. Contreras-Hermosilla, supra, note 89, at 174.

  93. Id.

  94. May et al., supra, note 28, at 33-34.

  95. Id. at 34.

  96. Id.

  97. Id. at 34-35.

  98. See supra text accompanying note 20.

  99. May et al., supra note 28, at 26. See also, Contreras-Hermosilla, supra, note 89, at 187. (noting that overlapping jurisdictions among Brazil’s federal, state, and municipal governance structures can lead to disputes and confusion).

  100. 100 Id. (“The recent rush to decentralize forest policy from the federal to state governments in the Brazilian Amazon, without due attention to problems of weak governance in the region has important implications that may undermining the success of REDD+”).

  101. 101 See supra note 14 and accompanying text.

  102. Luttrell, supra, note 58, at 71.

  103. See supra text accompanying note 57.

  104. Luttrell, supra, note 58; Id.

  105. Bernice Maxton-Lee, Material Realities: Why Indonesian Deforestation Persists and Conservation Fails, 48:3 J. CONTEMP. ASIA, 419, 420 (2017)…(6b5fcaf3-a2b9-4df7-a70d-0e3d69728170).html citing, e.g., Boucher, D., al., Deforestation Success Stories: Tropical Nations Where Forest Protection and Reforestation Policies Have Worked. UNION CONCERNED SCIENTISTS (2014)… deforestation-success-stories-2014.pdf. (noting the success of such policies in the context of Brazil).

  106. But see, Id. at 419-20 (arguing that even with strong legal structures and governance capabilities, neoliberal market mechanisms will fail to avoid “significant destructive ecological outcome[s]”).

  107. Id. at 433.

  108. Id.

  109. Id. at 434, 437 (“Underpinning any discussion about forest use and conservation is a conviction among many ministers and industry actors that restrictions on forest use go against the national interest or damage sovereignty.”).

  110. Id. at 434; John F McCarthy, Certifying in Contested Spaces: Private Regulation in Indonesian Forestry and Palm Oil, 33(10) THIRD WORLD QUARTERLY 1871, 1878-79 (2012).

  111. Luttrell, supra, note 58, at 71 (quoting E. Aspinall & G. van Klinken (Eds.) THE STATE AND ILLEGALITY IN INDONESIA, (2010)).

  112. Id.

  113. Id.

  114. Id.

  115. Id. at 70; see also, Schutte, S.A., Government Policies and Civil Society Initiatives Against Corruption, in Bunte, M., Ufen, A. (Eds.) DEMOCRATIZATION IN POST-SUHARTO INDONESIA, CONTEMP. SE ASIA SERIES, 81, 97 (2009) (“There is a tendency in Indonesia to create new task forces and commissions, instead of holding leading officials accountable for the lack of progress.”).

  116. Ludovino Lopes, A Review of Forest Legislation in Four Countries, GLOVE FOREST LEGISLATION STUDY 1 (2013),….

  117. See supra notes 5-17, 37-43, and accompanying text.

  118. Richard Milne, Norway: Environmental Hero or Hypocrite? FINANCIAL TIMES (May 6, 2016),

  119. Lopes, supra, note 118, at 32.

  120. Id; see also, supra note 26 and accompanying text (noting that Brazil’s decentralization process has established a framework for this strategy).

  121. Id.

  122. Id. at 33.

  123. Id.

  124. Id.

  125. Id. at 30.

  126. Contreras-Hermosilla, supra, note 89, at 192.

  127. Id. at 44.

  128. See supra text accompanying notes 55-62.

  129. See supra text accompanying notes 109-112.

  130. Robinson, supra, note 40, at 80 (stating that “training and equipping environmental law enforcement authorities in a nation as large as Indonesia proceeds too slowly to cope with the pace of illegal peat area conversion”).

  131. McCarthy, supra, note 112, at 1885 (noting that local institutional incentives will “usually be incompatible” with the post-materialist concerns commonly embedded in the president’s forestry mandates which have been primarily reflective of regulatory certification processes developed overseas).

  132. Id. at 1871.

  133. Id. at 1886.

  134. See supra text accompanying note 88.

  135. Azevedo, et al., supra, note 32, at 7653.

  136. Id. at 7655-56.

  137. Azevedo, et al., supra, note 32, at 7656.

  138. Fajardo Cavalcanti de Albuquerque, supra, note 7.

  139. Azevedo, et al., supra, note 32 at 7656.

  140. Id.

  141. May et al., supra, note 28 at 17 (noting that these moratoria were extended in 2010 despite countervailing pressure from rising soy prices and producer interest in planting new soy plantations).

  142. Azevedo, et al., supra, note 32, at 7656 (“Only 6% of landowners with forest debts in Pará and Mato Grosso reported that they were taking the necessary measures to compensate or restore their Legal Reserves, whereas 76% affirmed that they would only compensate or restore if coerced to do so through government fines or market incentives.”).

  143. See supra notes 14-16 and accompanying text.

  144. Azevedo, et al., supra, note 32 at 7656.

  145. Id. at 7657.

  146. Id. at 7656.

  147. Maxton-Lee, supra, note 107.

  148. Id. at 15-16.

  149. See supra text accompanying notes 3, 4, 98, 153.

  150. See supra text accompanying notes 138-151.

TRI Profiles