Transcript 投影片 1

7th Colloquium AEL, Wuhan, China
Environmental Impact Assessment Experience
In Taiwan:
Reflections on the Aarhus Convention
Dennis Te-Chung TANG
Director & Distinguished Research Professor
Institutum Iurisprudentiae
Academia Sinica
Taipei, Taiwan
[email protected]
http://idv.sinica.edu.tw/dennis/
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)
2
Three Pillars of the Aarhus Convention
Access to Information (資訊公開)
passive disclosure (被動公開)(§4)
active disclosure (主動公開)(§5)
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
3
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
4
ROC CONSTITUTION（憲法結構）
SEPARATION OF POWERS AMONG 5 BRANCHES
Fragmented Structure & Complicated Checks-and-Balances
Legislative
Yuan
立法
Executive Yuan
行政
Examination
Yuan
考試
Control Yuan
監察
Judicial Yuan
司法
5
USA CONSTITUTION
“Ambition Must Be Made to Counter against Ambition”
野心需用野心對抗
Executive
Power
Legislative Power
Senate vs House
Judicial
Power
6
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
Public Explanation
公開說明會
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
Granting/Denying Construction Permit (§14-I)
目的事業主管機關 核准/否准 開發許可
Permit
Issuance
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）
7
TW EIS Review Statistics
環境影響說明書案件審查一覽
Review
conclusion
FONSI
Conditioned
Finding of significant
impact
(shall go further EIAs)
Plain Rejection
(Construction banned)
0
127 (89.44%)
10 (7.04%)
5 (3.52%)
181
5 (2.76%)
150 (82.87%)
13 (7.18%)
13 (7.18%)
2000
140
2 (1.43%)
112 (80.00%)
10 (7.14%)
16 (11.43%)
2001
157
1 (0.64%)
137 (87.26%)
7 (4.46%)
12 (7.64%)
2002
96
4 (4.17%)
82 (85.42%)
2 (2.08%)
8 (8.33%)
2003
87
0
77 (88.51%)
2 (2.30%)
8 (9.20%)
2004
119
0
108 (90.76%)
2 (1.68%)
9 (7.56%)
2005
109
2 (1.83%)
93 (85.32%)
2 (1.83%)
12 (11.01%)
2006
97
1 (1.03%)
84 (86.60%)
1 (1.03%)
11 (11.34%)
2007
120
0
114 (95.00%)
1 (0.83%)
5 (4.17%)
2008
109
0
107 (98.17%)
1 (0.92%)
1 (0.92%)
Total
1357
15 (1.11%)
1191 (87.77%)
51 (3.76%)
100 (7.37%)
Number of
Cases
Unconditioned
1998
142
1999
Year
TW EPA’s EIS Review Statistics
環保署環境影響說明書案件審查一覽
Review
conclusion
Number
of
Cases
Year
FONSI
Unconditioned
Conditioned
Finding of
significant impact
(shall go further
EIA)
Plain Rejection
(Construction
banned)
1998
36
0
30 (83.33%)
4 (11.11%)
2 (5.56%)
1999
80
0
66 (82.50%)
11 (13.75%)
3 (3.75%)
2000
67
0
54 (80.60%)
7 (10.45%)
6 (8.96%)
2001
80
0
74 (92.50%)
3 (3.75%)
3 (3.75%)
2002
40
0
37 (92.50%)
1 (2.50%)
2 (5.00%)
2003
42
0
37 (88.10%)
2 (4.76%)
3 (7.14%)
2004
49
0
42 (85.71%)
2 (4.08%)
5 (10.20%)
2005
30
0
22 (73.33%)
1 (3.33%)
7 (23.33%)
2006
21
0
17 (80.95%)
0
4 (19.05%)
2007
31
0
28 (90.32%)
1 (3.23%)
2 (6.45%)
2008
29
0
28 (96.55%)
1 (3.45%)
0
Total
505
0
435 (86.14%)
33 (6.53%)
37 (7.33%)
TW EIA Report Review Statistics
環境影響評估報告書案件審查一覽
Review conclusion
Number of Cases
Unconditioned
Conditioned
Plain Rejection
(Construction
banned)
1998
30
1 (3.33%)
28 (93.33%)
1 (3.33%)
1999
20
0
20 (100.00%)
0
2000
14
0
12 (85.71%)
2 (14.29%)
2001
11
0
9 (81.82%)
2 (18.18%)
2002
2
0
2 (100.00%)
0
2003
5
0
5 (100.00%)
0
2004
0
0
0
0
2005
0
0
0
0
2006
0
0
0
0
2007
1
0
1 (100.00%)
0
2008
0
0
0
0
Total
83
1 (1.20%)
77 (92.8%)
5 (6.02%)
Approval
Year
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
Review
conclusion
Number of
Cases
Year
Approval
Plain Rejection
(Construction
banned)
Unconditioned
Conditioned
1998
14
0
13 (92.86%)
1 (7.14%)
1999
15
0
15 (100.00%)
0
2000
10
0
8 (80.00%)
2 (20.00%)
2001
9
0
7 (77.78%)
2 (22.22%)
2002
2
0
2 (100.00%)
0
2003
3
0
3 (100.00%)
0
2004
0
0
0
0
2005
0
0
0
0
2006
0
0
0
0
2007
1
0
1 (100.00%)
0
2008
0
0
0
0
Total
54
0
49 (90.74%)
5 (9.26%)
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)
12
Due Process of Law for Administration
(正當行政程序)
Recusal (迴避)
Impartiality Legality of Organization (組織適法)
(公平)
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)
Fairness Right to be Informed (受告知權) Notice of Decision (決定告知)
(公正)
Advise of Redress (救濟教示)
Duty to Give Reasons (說明理由)
Transparent in Principle, Limited Exemptions
(原則公開，例外限制）
Openness Active & Passive Disclosure (主動公開 & 被動公開）
(公開)
Right of Access to & Correction of Personal Data
(個人資訊控制權)
13
TW Freedom of Information Act
政府資訊公開法鳥瞰
Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
General Provisions (總則) (§§1~5)
Active Disclosure (政府資訊之主動公開) (§§6~8)
Passive Disclosure (申請提供政府資訊) (§§9~17)
Restrictions on Disclosure (Exemptions) (§§18~19)
(政府資訊公開之限制)
Relief (救濟) (§§20~21)
Supplementary Provisions (附則) (§§22~24)
14
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
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
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 exhausted the 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
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
II. PRE-EIA PROCEDURES
II.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 and Criteria 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
Kaohsiung Ad Ct (96 Decision) No. 647
(2008/01/23)
Measure of area prescribed in the Criteria shall only be taken as a
whole
No eschewing of law by dividing the whole construction site into
parcels
20
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
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
III. EIA Procedures
III.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
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
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
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.
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 .
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)
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.
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）.
V.
ACCESS TO ENVIRONMENTAL JUSTICE
V.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.
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.
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”
V.4
SUITS ON ENLARGED STANDING
Public 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.
V.4
SUITS ON ENLARGED STANDING
Citizen 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.
V.4
SUITS ON ENLARGED STANDING
Citizen 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.
VI.
CONCLUSIONS: FINDINGS & SUGGESTIONS
Overhaul 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.
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.