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Environmental Impact Assessment Experience In Taiwan: Reflections on the Aarhus Convention

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  1. Environmental Impact Assessment Experience In Taiwan:Reflections on the Aarhus Convention Dennis Te-Chung TANG Director & Distinguished Research Professor Institutum Iurisprudentiae Academia Sinica Taipei, Taiwandennis@gate.sinica.edu.tw http://idv.sinica.edu.tw/dennis/

  2. TABLE OF CONTENTS • I. Introduction • I.1 Aarhus Convention • I.2 Taiwan • II. Pre-EIA Procedures • II.1 Threshold • II.2 Screening (EIS) • III. EIA Procedures • III.2 Scoping • III.3 Draft EIA • III.5 Final EIA • IV. Post-EIA Procedures • IV.1 Environmental Difference Analysis and Response Strategy • IV.2 Environmental Impact Survey • V. Access to Environmental Justice • V.1 Suits for Denial of Access to Information • V.2 Suits for Violation of Public Participation Procedures • V.3 Suits for Challenging EIS/ EIA Review Conclusion • V.4 Suits on Enlarged Standing (Public Interest, Citizenship, etc) • VI. Conclusions (Findings & Suggestions)

  3. Public Participation (公眾參與)specific activities (具體活動)(§6 & Annex I) plans, programs, policies (計畫, 方案, 政策)(§7) laws, rules, regulations (法規)(§8) Access to Justice (司法救濟)(§9) violation of passive disclosure (§4) violation of specific activities (§6) violation of other relevant provisions Access to Information (資訊公開) passive disclosure (被動公開)(§4) active disclosure (主動公開)(§5) Three Pillars of the Aarhus Convention

  4. GOALS OF ARRHUS CONVENTION • Improved access to information & Wider participation of the public • Backed by access to justice • Building trust within communities, • Increasing public authority accountability • Making better environmental decisions • Contribute towards sustainability and sound governance

  5. Legislative Yuan立法 Executive Yuan行政 Examination Yuan考試 Control Yuan監察 Judicial Yuan司法 ROC CONSTITUTION(憲法結構)SEPARATION OF POWERS AMONG 5 BRANCHESFragmented Structure & Complicated Checks-and-Balances

  6. USA CONSTITUTION“Ambition Must Be Made to Counter against Ambition”野心需用野心對抗 Executive Power Legislative Power Judicial Power vs Senate House

  7. TW EIA Act of 1994 (環境影響評估法)ENVIRONMENTAL IMPACT ASSESSMENT PROCESS Threshold Environmental Impact Statement (≒US EA) 環境影響說明書(§6) Screening Review by TEPA 環保署審查(§7-I) No Need to Prepare EIA Report (≒US FONSI)無須續行評估(§7-III) Shall Prepare EIA Report(§8-I) 應進行第二階段評估 Scoping(§10) 界定評估範圍 Scoping Draft EIA Report (≒US Draft EIS)(§11) 評估書初稿 Draft EIA Final EIA Report (≒US Final EIS)(§13-II) 評估書定稿 Final EIA Public Explanation公開說明會 Permit Issuance Granting/Denying Construction Permit (§14-I) 目的事業主管機關 核准/否准 開發許可 Post EIA Environmental Impact Survey 環境影響調查報告書(§18) Environmental Difference Analysis 環境現況差異分析(§16A)

  8. TW EIS Review Statistics 環境影響說明書案件審查一覽

  9. TW EPA’s EIS Review Statistics 環保署環境影響說明書案件審查一覽

  10. TW EIA Report Review Statistics環境影響評估報告書案件審查一覽

  11. TW EPA’s EIA Report Review Statistics 環保署環境影響評估報告書案件審查一覽

  12. TW Administrative Procedure Act of 1999行政程序法 (8章145條) = 行政法總則+行政程序基本法 • Chap 1 General Provisions (§§ 1~91) • Sub-chap 4 Recusal (§§ 32~33) • Sub-chap 7 Disclosure of Information (§§ 44~47) • Sub-chap 10 Hearing Procedures (§§ 54~66) • Chap 2 Administrative Acts (§§ 92~134) • Sub-chap 2 Presentation of Opinions and Hearings (§§ 102~109) • Sub-chap 3 Effects of Administrative Acts (§§ 110~134) • Chap 3 Administrative Contracts (§§ 135~149) • Chap 4 Legislative Rules and Administrative Provisions (§§ 150~162) • Chap 5 Administrative Plans (§§ 163~164) • Chap 6 Administrative Instructions (§§ 165~167) • Chap 7 Petitions (§§ 168~173) • Chap 8 Supplementary Provisions (§§ 174~175)

  13. Recusal(迴避) Impartiality(公平) Legality of Organization (組織適法) Ex Parte Contact Prohibition (片面接觸之禁止) Informal Hearing(陳述意見) Right to Hearing(聽證權) Formal Hearing(聽證) • Notice in Advance(預告)Right to be Informed(受告知權)Notice of Decision(決定告知)Advise of Redress(救濟教示) Fairness (公正) Duty to Give Reasons(說明理由) Due Process of Law for Administration (正當行政程序) Transparent in Principle, Limited Exemptions (原則公開,例外限制) Openness (公開) Active & Passive Disclosure (主動公開 & 被動公開) Right of Access to & Correction of Personal Data (個人資訊控制權)

  14. TW Freedom of Information Act政府資訊公開法鳥瞰 Chapter 1 General Provisions (總則) (§§1~5) Chapter 2 Active Disclosure (政府資訊之主動公開) (§§6~8) Chapter 3 Passive Disclosure (申請提供政府資訊) (§§9~17) Chapter 4 Restrictions on Disclosure (Exemptions) (§§18~19) (政府資訊公開之限制) Chapter 5 Relief (救濟) (§§20~21) Chapter 6 Supplementary Provisions (附則) (§§22~24) 14

  15. TW Administrative Litigation Act of 1998行政訴訟法(9篇308條) Administrative litigation(行政訴訟)(§3) Actions for revocation(撤銷訴訟)(§4) Actions for imposing duties to act (課與義務訴訟)(§5) Actions for declaration(確認訴訟)(§6) Actions for effecting payments(給付訴訟)(§8) Public interest litigation(公益訴訟)(§9) 15

  16. ACTIONS FOR REVOCATION撤銷訴訟 (§4) §4-I Where a person’s rights or legal interests(權利或法律 上利益)are infringed upon through an unlawful administrative act by a central or local government agency, and the person disagrees with the decision rendered by the administrative appeal instituted in accordance with the Administrative Appeal Act(訴 願法), or if no decision has been rendered within three months after initiating the appeal nor during the two-month extension thereafter, such a person may initiate an action for revocation in the high administrative court. 16

  17. ACTIONS FOR IMPOSING DUTIES TO ACT課與義務訴訟/ 拒絕申請之訴 §5-II A person suffering damages to his rights or legal interests due to a denial by a central or local government agency of an application duly submitted by the person in accordance with the law, and having exhaustedthe recourse of administrative appeal may initiate an action in the high administrative court to order said agency to take an administrative act or an administrative act of specific content. 17

  18. PUBLIC INTEREST LITIGATION公益訴訟 §9 A person acting may, on behalf of public interests, initiate administrative litigation against an unlawful action by an administrative government agency with respect to matters which do not concern his or her own personal rights or legal interests. However, such litigation may be initiated only when it is expressly provided by law. 18

  19. II. PRE-EIA PROCEDURESII.1 THRESHOLD EIA Act §5-I: EIAs shall be conducted for the following development activities which are likely to have adverse impacts on the environment: 1. the establishment of a factory or industrial park; 2. the construction of a road, railway, mass rapid transit system, harbor or airport; …… EIA Items andCriteria for Identifying Development Activities (Identification Criteria, 開發行為應實施環境影響評估細目及 範圍認定標準) location, measure of area, production capacity expanded,… 19

  20. Kaohsiung Ad Ct (96 Decision) No. 647 (2008/01/23) Measure of areaprescribed in the Criteria shall only be taken as a whole No eschewing of law by dividing the whole construction site into parcels 20

  21. I.2 SCREENING Determine if an activity may have significant impact? Developer shall prepare Environmental Impact Statement(EIS, 環境說明書)for review Art. 10A, Guidelines for Conducting Environmental Impact Assessment of Development Activities (2009/10/23, 開發行為環 境影響評估作業準則) Before preparing EIS, Developer shall invite residents and NGOs for meeting But comment on what? EIS not available yet! Organic Rules for TEPA’s EIA Review Committee May organize an ad hoc panel to conduct preliminary review Ad hoc panel may request NGOs and local governments to recommend experts for consultation 21

  22. I.2 SCREENING Where EIA Review Committee concludes with a finding of no significant impact (FONSI) Developer shall hold a public meeting for explanation(公開說明會) Pub. Participation for what? Bring suits? MOJ (84 Law Resolution) Interpretive Note No. 18033 (1995/07/29): FONSI is administrative act, whose legality is subject to jud. rev. Yet, Kaohsiung Ad Ct (90 Decision) No. 1869 (2002/02/27): FONSI is part of the process of granting a construction permit, Does not have the finality of an administrative act 22

  23. III. EIA ProceduresIII.1 SCOPING • After the public meeting for explanation, Environmental Agency • invites relevant agencies, NGOs, experts, resident representatives • to define the scope of EIA • Kaohsiung Ad Ct (92 Re-Decision) No. 35 (2005/05/31): • §§9, 10 &12 guarantee local residents’ participatory rights to EIA, • Environmental Agency may not eschew the process by written review only

  24. III.2 DRAFT EIA • Within 30 days upon receipt of Draft EIA by Developer, • The Responsible Agency for the Enterprise Associated with the • Project (目的事業主管機關)shall invite relevant agencies, • NGOs, experts, residents representatives to conduct on-site • inspection and hold a public hearing • Operation Highlights for Holding Public Hearing (2009/04/01公聽會作業要點): Advanced notice, without specifying the subject matter to be commented

  25. DRAFT EIA REVIEW • Within 60 days on receipt of Draft EIA forwarded by the • Responsible Agency for the Enterprise Associated with the • Project(目的事業主管機關) • Environmental Agency shall complete the review • TEPA’s EIA Review Sit-In Rules (2009/02/17, 環境影響評估審 • 查旁聽要點) • NGOs and local residents may apply for permission to sit-in any review meeting of TEPA’s EIA Review Committee

  26. III.3 Final EIA • Developer shall revise Draft EIA, in accordance with Review • Conclusion, to prepare Final EIA and send to Environmental Agency for approval • Environmental Agency, after approving Final EIA, shall publish it with the Review Conclusion on government gazette.

  27. EIA REVIEW & CONSTRUCTION PERMIT • §14-I, EIA Act: • The Responsible Agency for the Enterprise Associated with the • Project (目的事業主管機關)shall not grant a permit for • development activities before the completion of the review of the • EIS or Final EIA Report. A permit granted in violation of the • preceding sentence is void .

  28. IV. POST-EIA PROCEDURES • §16, EIA Act: • The contents of the approved EIS or Final EIA Report shall not • be revised without the authorization of the Competent • Environmental Agency for this Act and the Responsible Agency • for the Enterprise Associated with the Project. • Where there is revision, either • No need to go thru EIA de novo (§37, Implementation Rules) • Or • Need to go thru EIA de novo (§38, Implementation Rules)

  29. IV.1 ENVIRONMENTAL DIFFERENCE ANALYSIS AND RESPONSE STRATEGY • §16A, EIA Act: • Where the Developer starts construction within three years after • having passed the review of EIS or Final EIA Report, and having • obtained construction permit from the Responsible Agency for • this Act and the Responsible Agency for the Enterprise • Associated with the Project, shall prepare Environmental • Difference Analysis and Response Strategy(環境現況差異分 • 析及對策檢討報告)for review by the competent environmental • authority.

  30. IV.2 ENVIRONMENTAL IMPACT SURVEY • §18-I, EIA Act: • During performance of development activities and post-project • facility use, the Responsible Agency for Enterprise Associated • with the Project shall monitor, and the Competent Environmental • Authority for this Act shall supervise, the enforcement of the EIS, • Final EIA Report and review conclusion requirements. If • necessary, for a specified period of time, the Developer will be • required to submit an Environmental Impact Survey Report(環 • 境影響調查報告書).

  31. V. ACCESS TO ENVIRONMENTAL JUSTICEV.1 Suits for Denial of Access to Information • §20, TW FOIA • An applicant who has an objection to the decision made by a • government authority denying his/her request for disclosing, • correcting or supplementing the government information may • seek for administrative and judicial relief in accordance with law. • Though there is no “Environmental Information Regulation” which • provides broader access to environmental information than other kinds • of government information, and the emission/effluent information may • arguably be exempted from disclosure as “trade secrets”, the denial of • access to government information itself does constitute a cause of • action in administrative courts.

  32. V.2 SUITS FOR VIOLATION OF PUBLIC PARTICIPATION Compromise betw Common Law and Civil Law • §174, TW APA • A procedural violation (non-observance of procedure required by • law) may not by itself constitute an independent cause of action, • yet it may eventually be challenged as illegality, i,e., a decision or • disposition taken by an administrative agency during an • administrative procedure can only be objected when a party files • petition against the substantive (final) decision made thereof.

  33. V.3 SUITS FOR CHALLENGING EIS/ EIA REVIEW CONCLUSION • To secure • Efficacy of EIA, i.e., no construction permit without approval of • EIA, • Efficiency of public participation, i.e., public participation as • procedural right • To eliminate government corruption • EIS/ EIA Review Conclusion shall be deemed to have direct and • final (though negative) effects of an “administrative act”

  34. V.4 SUITS ON ENLARGED STANDINGPublic Interest Association Suits(公益團體訴訟) • §35-I , TW ALA • A legal entity with the public interest as its object and within the • scope of the objectives as defined in its charter, where the • majority of its members have common interests, concerning • certain specific legal relations, and where the legal entity is • empowered to effect proceeding acts, may initiate litigation for • the public interest.

  35. V.4 SUITS ON ENLARGED STANDINGCitizen Suits(公民訴訟?) • §23-8, EIA Act: • In the event that a competent authority neglects to enforce • Against developer that is in violation of the provisions in this Act • or relevant regulations authorized by this Act, the injured citizen • or public interest group may record specific instances of • [regulatory enforcement] neglect and serve a written notification • to the responsible agency at issue.

  36. V.4 SUITS ON ENLARGED STANDINGCitizen Suits(公民訴訟?) • §23-8, EIA Act: • If within sixty (60) days of being served the written notification, • the competent authority has still not taken enforcement action in • accordance with law, the citizen or public interest group may • directly bring a lawsuit in an administrative court against the • competent authority at issue for neglecting implementing duties, • and request a verdict ordering the competent authority to enforce • relevant laws.

  37. VI. CONCLUSIONS: FINDINGS & SUGGESTIONSOverhaul of EIA Act Required • The EIS, the equivalent of an Environmental Assessment (EA) in the US, should be clarified as a screening tool. • All environment-related requirements of a development project, such as soil-and-water preservation plans, should be integrated as much as possible into the EIA process to improve decision consistency and bureaucratic efficiency.

  38. VI. CONCLUSIONS: FINDINGS & SUGGESTIONS • In order to provide for meaningful public participation, the notice and • comment procedures should be adopted during, rather than before, scoping. • Notice and comment procedures should also be provided for in reviewing thedraft EIA and final EIA Reports. • TEPA should, via circular, voluntarily construe a “determination of no need to prepare an EIA Report” as an “administrative act” subject to judicial review. • In order to safeguard procedural rights of public participation, the Ad. Cts shall develop various standards of review for procedural violations.