本中心配合葉俊榮教授與張文貞教授合開之課程「全球環境政策與法律專題討論」，邀請本校李玲玲教授為同學們演講，講題為「氣候變遷與生物多樣性」，歡迎校內外人士一同熱心參與，和我們一起關心地球。

繼日前成功暫緩建商之斷根工程，由台大學生會、台大社科院學生會、台大男四舍住宿生自治會等位於社區內校園學生團體，社區居民組成的東門護樹志工隊，綠黨、自然步道協會、專業者都市改革組織等十多個公民團體，共同發起「徐州路綠色隧道黃絲帶祈福活動」、訴求「老樹不要走 綠蔭好好留」。現場也有學生音樂表演、為老樹上綁上寫著祈福願望的黃絲帶、為瀕危將被拍賣移走的老樹群綁上紅絲帶等柔性方式，傳達保留徐州路綠色隧道、在地居民歷史記憶的希望。

           此案雖是建商為開大車車道需求、建築師設計能力不足缺乏建築專業與環保人文素養、而導致行道老樹移走計畫，但追根究底，市府未於文化、樹保、建照等法律程序，就公共利益嚴加把關，國產局賤賣國產、連人行道也敢賣，才會縱容珍貴老樹淪為私人財團恣意處份之標的。

          徐州路綠蔭文化護樹行動，不只是搶救一顆老樹，而是搶救台北市水泥叢林裡，珍貴的自然歷史街區的豐富人文內涵。護樹團體呼籲徐州路整個綠色隧道其於自然生態、歷史人文、城市發展等重要性之無可取代，應開始以透過公民參與、以公開審議來討論都市發展歷史與街區文化地景的塊狀保留、以保留城市歷史記憶、文化涵養，在節能減碳風潮流中、老樹綠蔭降低都市熱島效應、提供動物喘息空間。

           而博愛特區週邊到市長官邸、台大社科院、台大公衛學院、整個街區有從清朝留下的米道，日據至國民政府每階段歷史對於城市發展規畫想像的背景軌跡，官舍與街道樹木的樹種選擇與文化符碼、首都市長官邸與學術單位之間綠色廊道的權力象徵與文化意象的營造。 台大社科院學生會會長陳乙棋表示，社科院學生亦是社區居民，樹不能說移就移，而抹煞了過去好幾輩學長姐校友的共同成長記憶。社區居民也認為老樹已是他們人生自兒時成長經驗的一部份。
       
        護樹團體認為：市府不該再僅以工程導向的公園路燈管理處，草率管理如此珍貴的北市文化資產，而應由文化局、都發局、中央的文建會，好好檢討博愛特區週邊京畿重地、徐州路市長官邸、官舍保存跟綠色隧道的整體規畫考量，應維繫一個總統府、首都市長官邸等應有最底限的文化格局高度。不容「窮下只剩下地」的國產局一切向錢看、將蠶食鯨吞地，將老樹官舍賣給私人財團，淪為建商炒作土地攫取私人利益的籌碼。

          當地社區居民東門護樹志工隊、台大社科院、第四男生宿舍生治會學生及連署的環保團體共同要求建商暫緩老樟樹的斷根計畫，同時正式發動連署：

一、針對徐州路上百餘棵老樹，申請具重要歷史人文意義之群聚樹木保留與重要人文地景街區保留的文化資產保留的審查，永久保留這條綠色隧道。

二、富泰營造、富豊建設應考量社區居民與社會觀感，變更設計，原地保留老樟樹並妥善保護

三、要求國有財產局立即停止賤售國有地與老樹，老官舍與老樹應做為公園綠地或社區公共使用、文化資產活用如市長官邸的藝文活動的結合，才能解決根本問題。

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共同行動團體：東門護樹志工隊、台大學生會、台大社科院學生會、台大男生第四宿舍住宿生自治會、綠黨、自然步道協會、專業者都市改革組織、台灣蠻野心足生態協會、綠色陣線協會、全球綠人台灣之友會、GLCA幸福生活站、化作春泥更護花聯盟、財團法人綠色消費者基金會、綠色公民行動聯盟   

新聞連絡：台大學生會 傅偉哲0910-478883  、綠黨 潘翰聲0935-295815

＊轉載自東門護樹志工隊部落格

由富豊建設進行開發的臺北市徐州路10號的建地上，矗立著三棵樹齡五、六十年的老樟樹，如今其中一棵因為防礙施工，而面臨被移植的命運。該移植作業雖經臺北市政府文化局老樹保護委員會同意，附近居民仍不放棄，期待建商能變更設計，饒了老樟樹一條生路。

附近居民與綠黨組成東門護樹志工隊，並聯合臺大學生，成功在2009年9月30日上午阻擋建商在未經公告就將對老樟樹進行斷根的行動，並在10月1日上午召開記者會，要求市政府為保護老樹不力負起全責。

東門護樹志工隊已設有部落格，並發起網路連署，希望能有效搶救老樹並促成社會反思。徐州路的綠樹林蔭是曾經在社科院區就學、工作的臺大師生們重要的共同資產，希望所有臺大師生都可以具體行動關心參與徐州路的老樹搶救活動！

本中心配合葉俊榮教授與張文貞教授合開之課程「全球環境政策與法律專題討論」，邀請中華經濟研究院院長蕭代基先生為同學們演講，講題為「氣候變遷與能源政策」，歡迎校內外人士一同熱心參與，和我們一起關心地球。

本中心於2009年9月8日（星期二）上午10點到12點於台大法律學院霖澤館1703研討室舉辦環境責任法草案座談會，此為台大法律學院於今年6月底遷至校總區後，本中心第一次在新法學院舉辦座談會，由葉俊榮教授、張文貞副教授與汪信君助理教授主持，邀請劉宗德教授、林勳發教授、劉如慧教授、吳行浩教授、王千維教授、張英磊博士等學界人士，以及包括行政院環保署管制考核及糾紛處理處、公害糾紛裁決委員會、土壤及地下水污染整治基金管理委員會、空氣品質保護及噪音管制處與法規委員會在內的政府機關代表，以及保險實務界人士林松基先生與李奇正先生，就環境責任法草案內容進行深入討論，並提供寶貴意見，以作為草案後續修改的參考。    

本中心分別於2009年6月23日（星期二）下午2點到4點半在台大法律學院第一會議室，以及26日（星期五）下午2點到4點半於台大法律學院研五教室，舉辦兩次環境影響評估制度焦點座談會，邀請學者專家與會，檢討台灣環評制度，希望為環評制度把脈，提出制度興革的方案，使我國環境影響評估的制度設計及實際運作更加完備，深入了解我國環境影響評估法制及其運作所面臨的相關問題，並探求解決這些問題的具體方法。

  Recognizing that climate change of the Earth had been adversely affected by the increase of greenhouse gas generated from human activities, the United Nations, for the purpose of reducing and controlling the emission of anthropogenic greenhouse gas, passed the United Nations Framework Convention on Climate Change (UNFCCC) in its New York headquarter in May 1992. The UNFCCC was later submitted to the United Nations Conference on Environment and Development held in Rio, Brazil in June of the same year and opened for signing. One hundred and fifty-five countries participating in the conference signed the UNFCCC.  The convention officially entered into force in 1994 after it had been ratified by fifty signature parties in December 1993. 

    Since 1994, The Conference of Parties (COP) has been convened annually to deliberate the future development of the convention. According to the UNFCCC, signature country parties shall exchange information regarding emission of greenhouse gas, cooperate to develop strategies effectively reducing emission of greenhouse gas and assist developing countries decrease emission of greenhouse gas by funding or techniques. Moreover, each party country shall make preparations for climate changes caused by greenhouse gas. Five principles are explicitly stated in the UNFCCC: (1) common but differentiated responsibilities for country parties; (2) full consideration of the specific needs and special circumstances of developing country parties; (3) precautionary principle; (4) sustainable development: (5) an open international economic system.    

    Although UNFCCC, a framework convention, provides for the principles regulating emission of greenhouse gas, it does not stipulate the strategies specifically. Therefore, the Kyoto Protocol adopted in the COP3 held in 1993 in Kyoto, Japan, was a supplement to the UNFCCC. The Kyoto Protocol sets clearly the agenda for carbon dioxide emission reduction of industrialized party countries by the year 2012. 

    Owing to that the Kyoto Protocol only sets the carbon dioxide emission reduction agenda to 2012, the COP13 in 2007 has achieved the decision that a new stipulation concerning carbon dioxide reduction shall be discussed in COP15 held in 2009. Other main topics will also be discussed in the conference this year, including the source and use of the fund for global climate change, how to balance greenhouse gas emission reduction and economic development of developing countries as well as how developed countries support and assist developing countries.

Citizen Suits for Better Environment: A General Review of Environmental Public Interest Litigations in Taiwan

For

The 9^th Asia-Pacific NGO Environmental Conference (APNEC9),

November 20-21, Kyoto

Jiunn-rong Yeh,

Professor of Law, College of Law, NationalTaiwanUniversity, Email住址會使用灌水程式保護機制。你需要啟動Javascript才能觀看它

 
INTRODUCTION

        The burgeoning democratization in Taiwan over last 2 decades has robust citizen participation in major areas of government regulation. Among which, environmental conservation has been considered as one that attracts most public involvements in divergent forms, including representation in decision-making bodies, participation in public hearings, demonstration, sit-ins, and litigations. In recent years, concerned citizens or environmental groups have, more frequent than ever before, taken the form of litigation to address their environmental concerns. This was made possible, among others, by legislative efforts that make possible for citizen to sue in the courts for the environment.

      This paper seeks to sketch the status of environmental citizen suits (公民訴訟)in Taiwan and analyze its institutional and social backdrops. Though most cases will be reviewed, the Taidong Beautiful Bay (台東美麗灣) litigation, a 2008 landmark case in which the plaintiff environmental group won for the first time, will be the highlight. This analysis is followed by a general review on the legal foundation of current practices.

       The paper concludes that democratization has been the driving forces for current burgeoning environmental citizen suits. Citizen participation via public interest litigations will not only safeguard the environment but also empower civil society in caring “our common environment”

THE BEAUTIFUL BAY AND CITIZENS’ FIRST TRIUMPH IN THE COURT

      In Taiwan, it was not until 1999 that the first citizen suit clause be written into law and not until 2008 that an environmental group plaintiff won in a citizen suit case for the first time. This landmark case is known for Taidong Beautiful Bay litigation.

      In December 1994, the Taidong County Government, in hope for further development of its local tourism, signed with the Beautiful Bay Resort Co. a BOT contract, according to which the Beautiful Bay Resort Co. would build a resort hotel on the Sanyuan beach, situated on the eastern coast of Taidong County, and pay the Taidong County Government 5 million NT dollars plus 2% of annual revenue.

       According to the contract, this project would take up 59,956 square meters, far over 1 hectare, a threshold set by the regulations authorized by the Environmental Impact Assessment Law (EIAL), and therefore must go through the procedure of environmental impact assessment (EIA). The Beautiful Bay Village Co., however, in February 2005, applied for merge-and-re-segmentation of the land, to which Taidong County Government permitted, thus separating from the whole bulk of land a piece of 9,997m² ( 3m² short of the set threshold), which the construction of its hotel building needed , so as to shied itself from the legal requirement of the EIA procedure. The plot was later disclosed by some legislators and environmental groups, and, in May 2007, in accordance with Article 23 of EIAL, the Taiwan Environmental Protection Union (TEPU) filed a citizen suit at Kaosiung High Administrative Court against Taidong County Government, demanding a order from the Court requiring Taidong County Government impose fine on the Beautiful Bay Resort Co. and suspend its construction right away.

       The court first confirmed that the TEPU qualified as a public interest group to file a citizen suit, and then moved on to further reasoning on substantive matters. The very purpose of the EIAL, the court pointed out, is to lessen and prevent possible adverse environmental impacts by major constructions. Given the fact that this BOT project is to take up 59,956 square meters, not just the mere 9,997 square meters for the hotel building construction, to merge-and-re-segment the land in order to avoid the EIA process has violated the legal requirement of EIA. Failing to enforce the nondiscretionary EIA requirements, so ordered the Court, Taidong County Government should suspend the construction of the project. Note, further, the Court also awarded NT$ 60,000 as attorney fees to the plaintiff, the first of this kind in history.

CITIZEN SUITS IN TAIWAN FROM A BROADER PERSPECTIVE

       Most of the earlier citizen suits in Taiwan involved a variety of issues such air pollution, water pollution, dumping, reservoir-building, and so on, while cases in recent years were mostly EIA cases and the number is on the increase. Up to now, the courts have ruled 9 citizen suits brought by concerned citizens or environmental groups against relevant authorities, among which 6 were EIA cases. In these EIA cases, 4 of them are filed by environmental groups and 2 are filed by concerned citizens, signaling that environmental groups have taken the role as pioneers in environmental litigations.

     Notably, what those cases have in common is that there were lawyers arguing in the litigation, the ratio far higher than in normal cases. Besides, taking a look at all the members in these cases, it appears that some cases share the same lawyers. It is noteworthy because there was rare distinct division of labor among lawyers in these matters. Some sort of social nexus thus must have played a role in it. Besides, EIA cases, compared to other cases, are significant in that they are more complex because their main issues on trial usually contain high-tensioned political and economic factors. The trend of environmental citizen suits development in Taiwan, therefore, implies that Taiwan’s social mechanisms concerning environmental issues are working and that they are gaining momentum.

ANALYSIS AND ASSESSMENT

       In light of Taiwan’s experience, we see strong connection among environmental concern, institutions and social backdrops. These experienced could be analyzed in three perspectives.

       First, social capacity-building plays a role. The very idea of a citizen suit, citizens filing a lawsuit for public interest, signifies the breakthrough from the traditional “right-based” thinking. Certain institutional factors such as citizens, information, participation, and courts, are required to back it up. Right in the moment of democratic transition, the case of Taiwan draws a clear distinction. In Taiwan, back in the time before going through the democratic transition, with freedom of association oppressed, information unable to be fully disclosed, participation in public affairs discouraged, and courts suppressed of its function, citizen suits were all but possible. Nowadays a vibrant civil society has become the hardcore capacity-building for public interest litigations for better environment.

       Second, legislative strategy is also important. Due to the complicated legislative structure of environmental statutes, to have a citizen clause written into law is one thing, in what form to have it written is the other. And the latter undoubtedly weighs much in practice. In Taiwan, environmental regulatory laws more often than not include citizen suit clauses, while most of them are one way or the other, confined in the scope of their application. Also, the existing dual judicial system in Taiwan, normal courts and administrative courts, has complicated the creation of the system right from the very beginning.

       Third, the attitude of the courts is by all means a determinant factor. In fact, before the Taidong Beautiful Bay case, quite a few citizen suits had been filed, while those cases were finally either dismissed before reaching a substantial reasoning or ended up without one. Due to the constrained legislative structure, or to its past consistent conservative attitude, the courts stuck to the traditional way of “right-based” thinking, holding that one can resort to the court for remedy only when his/her/its right has been infringed upon(the so-called “subjective litigation”), and thus contradicted with the spirit of citizen suits.
In1998, the Justices of the Constitutional Court of Taiwan affirm in Interpretation No.469 the “right-base” argument, but on its ground loosened the requirement of it. The interpretation ruled that, to determine whether an infringed right exists as the plaintiff states, the court must take into account factors such as the overall structure of the law, the objects to which the law applies, the purpose of the law, and social development factors to fathom whether the law intends to protect the said right. Then in 1999, the first citizen suit clause was written into the revised Clean Air Act, and in 2002 the EIAL included the citizen suit clause, hence both the “subjective litigation” and the “objective litigation” are accommodated in Taiwan’s legal system ever since. Nevertheless, due to the words used in these clauses such as “concerned citizens and public interest groups”, the distinction between subjective litigation and the objective litigation can not be easily drawn and may even be confused. At times it still depends on the courts to decide practically in every case whether it is to take a friendly check upon the issue of standing, or otherwise.

CONCLUSION

       Environmental issues are in essence issues of citizen participation. The burgeoning democratization in Taiwan provides for soil needed for public interest litigations for better environment. The Taidong Beautiful Bay Case is the best narrator of the story. Furthermore, the growing of the citizen suits in EIA area reaffirms the public nature of the citizen suits in its assurance of procedural rationality in decision-making. By filing a suit for public interest, citizens give the court a chance to review the legality and rationality of environmental decision-making. Taiwan’s experiences shows that, in practice, citizen suits, with the momentum of democratization, safeguard the environment and at the same time empower civil society in caring “our common environment.”