As an introductory course for undergraduate students, environmental law provides a framework for understanding the environmental issues which humans are faced with today and the implications of these issues for law making and policy. Although environmental law is a relatively new subject, it has grown dramatically in scope and complexity in the last 25 years, playing an increasing important role in diverse aspects. This course sets out to, by exploring relevant aspects, including global governance, policy tool, targeted issues, and legal norm, assess and evaluate the present legal system’s capacity in dealing with climate change, and depict and construct a legal paradigm qualified in the climate change era.


    From this course, students will have insight into the following issues: the context of the rising regulatory regime and methodology; regulatory framework; economic incentive and other regulatory tools; separate regulatory regimes of environmental law; international environmental issues and the challenge of recent environmental law development. The objectives of this course are observing substantial influence of institutional factors and discussing the role of the legal system in addressing environmental problems. This fundamental course provides participants with a comprehensive examination of key environmental law and policy areas, paying particular attention to practical questions emerging from Taiwan’s regulatory policies, administrative institutions and judicial decisions.

With ever growing scientific evidence, and the tremendous impacts upon both the ecological system and the human society it has brought, climate change has been proved as a genuine issue, and come to be a primary concern to the world. As its cause and effect is accumulative and trans-boundary, climate change is characterized by an unprecedented large scale, and high uncertainty in both time and space perspectives. This feature distinguishes climate change from any other environmental issue we had ever dealt with, and challenges the capacity of the legal system. 
   
This course sets out to, by exploring relevant aspects, including global governance, policy tool, targeted issues, and legal norm, assess and evaluate the present legal system’s capacity in dealing with climate change, and depict and construct a legal paradigm qualified in the climate change era.

As an introductory course for undergraduate students, environmental law provides a framework for understanding the environmental issues which humans are faced with today and the implications of these issues for law making and policy. Although environmental law is a relatively new subject, it has grown dramatically in scope and complexity in the last 25 years, playing an increasing important role in diverse aspects. 

    The objectives of this course are observing substantial influence of institutional factors and discussing the role of the legal system in addressing environmental problems. This fundamental course provides participants with a comprehensive examination of key environmental law and policy areas, paying particular attention to practical questions emerging from Taiwan’s regulatory policies, administrative institutions and judicial decisions. From this course, students will have insight into the following issues: development of environmental rights; environmental legislation, regulatory structure and citizen participation; economic incentive and environmental fees; public nuisance disputes and environmental liability; environmental impact assessment, regulatory negotiation and environmental administration, international environmental issues and sustainable development.

Pin-nan Industrial Area Case

In July 1993, the Tuntex group released its plan in building a new oil refinery and aromatic hydrocarbon extraction factory in Cigu, Tainan County. This building project was known as No. 7 Naphtha Cracking Project. In the same month, another business tycoon, the Ye-long group, also filed an application for building a new steel factory to the Industrial Development Bureau, Ministry of Economic Affairs. However, the area where the two building plans were about to take place has long been the habitat of Platalea minor (Black-faced Spoonbill), thus generating a great deal of controversies. To respond to such environmental concerns, both Tuntex and Ye-long groups decided to change their location to Cigu saltern, which was owned by a government corporation, Taiyen. All these plans were undergone the EIA processes and were divided into three cases including the Pin-nan industrial area case, the substitute program for petrochemical integrated factory and industrial reserved port, and the substitute program for consistent operating factory and industrial reserved port. 

    In the three cases, the Pin-nan industrial area case passed the EIA with certain conditions, but both the substitute program for petrochemical integrated factory and industrial reserved port, and the substitute program for consistent operating factory and industrial reserved port failed the initial process and were required to enter into the second stage of assessment. While they were seen as the three cases, they should nevertheless be examined altogether as they have impaced the same area, Cigu. Many enviormental groups and local residents contended these building plans posed great threat to local lagoon, fish farms, salt pans and coastal area. Eventually, the EIA processes turned into a battlefield between businesses, local residents and various government agencies, national or local.

    On October 30, 1996, the Ministry of Economic Affairs convened a meeting about water supply in Pin-nan industrial area, and on May 21, 1997, the investigative meeting of water supply was also held. In the same year, the local government also held the investigation on water supply. In April 1998, the national government, the Executive Yuan, questioned the water and power supplies of the Pin-nan industrial area. Later the Tainan county government rescinded its support for the Pin-nan project and asked for a withdrawal in July 2002. In addition, due to the potential threats to endangered species, marine creatures, as well as nearby lagoons, environmental groups made their petition to the Control Yuan to conduct investigation on any government wrongdoings concerning the development of the area. Till this day, controversies surrounding the developments remain unresolved and the EIA process failed to provide any rational discussions, not to mention reaching any consensus. By thoroughly examining this case, this research project seeks upon its completion to provide an ultimate solution and workable institution-design to these most intricate and politically contested EIA issues and problems.

A. The Gas Leak in Ta-Liao 



    In December 2008, the unknown gas leak caused students and teachers in Chao-Liao elementary school serious illness such as headache and nausea. Without clear evidence, the victims had no way to pinpoint which particular nearby factory was responsible for the gas leak. Nor the government was able to help them to reach to any potential suspects. Angry residents thus initiated several street protests, some of which even turned violent. 

    About a month later, the EPA published the investigation report, confirming that seven factories might lead to the gas leak and be rendered responsible collectively. However this report did not help facilitate the dispute resolution. The county government in Kaohsiung invited representatives of Ta-Liao residents and relevant factories to meetings discussing about relevant liability and compensations. But these meetings failed to reach to any conclusions regarding who was primarily responsible for the incident. The Executive Yuan held subsequent inter and intro government meetings but until now, no consensus is ever reached.

B. Coral Depletion of Greek Cargo Amorgos 



    The Amorgos, a 3,5000-ton Greek Cargo full-loaded with ore, lost its power and stranded in the waters off the coast of Oluanpi, Pingtung county, on January 14, 2001. Due to bad meteorological condition, its oil began leaking on January 18, 2001 and contaminated nearby coastline and coral reefs. The off-shore area of Long Kun was polluted by oil, and serious polluted area stretched over 20 hectares. As a result, fishing and tourist industries as well as nearby ecological system suffered from great loss. Given the terrain restriction, ocean phenomenon and ecological protection area, the clean-up task lasted more than three months; and the subsequent clean-up was not completed until October, 2001. According to the EPA, the total damage and clean-up fee was up to 93 million (Taiwan Dollars). The EPA negotiated with the Amorgos and its insurer (Assuranceforeningen, hereinafter Gard) regarding the compensation. However, the consensus about the compensation for ecological losses and economic losses could not be reached, and thus the EPA brought the suit to Pintung District Court in Taiwan and later to the Arendal District Court in Norway.

    Based on Articles 33 and 34 of the Marine Pollution Control Act and Article 15 of the Civil Procedural Act, the EPA claimed that the Pingtung District Court in Taiwan had the jurisdiction as the pollution occurred in Pingtung. But the Pingtung District Court denied the jurisdiction and claimed that it was the Norwegian Court that enjoyed the jurisdiction. The judgment was made on three reasons. First, the applicable law between EPA and Gard was the Norwegian law. Second, the Norwegian court was much more experienced in dealing with cases regarding the International Convention on Civil Liability for Oil Pollution Damage. And finally, there was no agreement regarding judicial recognition between Taiwan and Norway. 

    EPA then brought the suit to the District Court of Arendal, Norway, and claimed 3.5 billion (Taiwan Dollars) including the damage to coral reef, to fining industry and other costs. In January 2005, the District Court of Arendal ruled in favor of the EPA. However, the Court rejected the claim for the recovery cost of coral reef, fining industry, as well as the loss of tax and tourist income due to the lack of evidence and only awarded a tiny small sum of monetary compensation, insufficient even to cover the attorney fee. The EPA then negotiated with both Gard and the ship owner. In March 2006, the ship owner agreed to pay a total of 34 million (Taiwan Dollars) as the final settlement.

 The Environmental Impact Assessment (EIA) Act was enacted in 1994. For the past fifteen years, the practice of EIA often raises the attentions from relevant industries, academics, and the society at large. Government agencies have gained considerable practical experiences and have also learned acute issues and problems. Sometimes the EIA process became politicized and relevant parties felt frustrated and quite discontent. The building of Suhua highway, the development plan of Pin-nan industrial area and the establishment of the Central Taiwan Science Park in Houli were typical examples. In order for the EIA process to function, these issues and problems must be dealt with great care. 

    The EIA Act was amended three times since it had entered into force. These revisions, however, failed to provide any complete review of the EIA process. Director of the PLES, Professor Jiunn-rong Yeh, and a member, Professor Wen-Chen Chang, thus decided to undertake a thorough review of the existing EIA process and render advice to its comprehensive institutional revision. The research project was entrusted by the Research, Development and Evaluation Commission of the Executive Yuan. This project is aimed to reexamine the EIA mechanism and provide comprehensive resolutions to its most intricate issues and problems. It began in May 2009 and shall last to February 2010. The research goal is to develop the proper institution-design of the EIA by exploring the background of the EIA enactment, analyzing key EIA cases and practices and identifying its current structural problems. We are expected to deliver solutions to the current intricate issues and problems and help improve the EIA process.

    In order to deepen and widen our understandings of the current EIA process, two meetings with learned experts, lawyers and concerned environmental groups were held respectively on June 23 and June 26 in 2009. The invited experts were surveyed with key issues regarding the institution-design and practices of the EIA mechanism and asked to provide their opinions about reforms. Many raised sharp questions and expressed their acute concerns. In particular, a number of issues were discussed, including the insufficiency of citizen participation, inadequate information, malfunction of environmental consultant companies, lack of environmental consciousness and last but not the least, incompetence of administrative agencies. All these problems are now being studied for proper integrated solutions.

  PLES, entrusted by the Environmental Protection Administration (EPA), initiated this research project in September 2008. Conducted by Professor Jiunn-rong Yeh, director of the PLES, with the cooperation of Professor Wen-Chen Chang and Professor Hsin-Chun Wang, members of the PLES, this project is aimed at reexamining current environmental dispute resolutions and sought to establish a comprehensive environmental liability mechanism.

    In Taiwan, disputes on public nuisance have emerged rapidly since 1990s. Due to the lack of effective resolution mechanisms, however, these nuisances ended up with political negotiation and sometimes violent street protests, resulting in significant social costs and establishing no precedent for future disputes. Although the Public Nuisance Disputes Resolution Act was already enacted in 1992, when the complexity, uncertainty, intensity of environmental issues increased, the resolution mechanism it created has not delivered satisfaction and relevant institutional mechanisms must be reexamined thoroughly. Article 33 of the Environmental Basic Act prescribes that the national government shall establish the environmental dispute resolution mechanism to provide proper institutions for dispute resolution, emergency measures, compensation, and indemnification. Faced with Taiwan’s unique social context and rapidly changing global climate, establishing an environmental liability mechanism that suits both local needs and global responsibility is a very serious challenge.

    Against such backgrounds, this project has three primaries. First, it is to delineate the structure of environmental disputes in Taiwan and reexamine the capability of existing legal resolutions. Secondly, it is to study recent developments of environmental insurance and funds both at local and global levels. Finally, it is to reexamine the institutional deficiency, if any, of the existing environmental dispute mechanism and to establish a more comprehensive and effective liability system for future environmental disputes. 

    An emerging scheme is to incorporate the function of existing public nuisance dispute resolution to the environmental liability mechanism. In addition to adjustments of relevant procedural and substantial legal conditions for the unique feature of environmental issues, this project attempts to introduce environmental insurance and environmental funds to properly redistribute environmental liability. It also seeks to address issues on transnational environmental disputes and respond to emerging issues of global climate change.

 Climate change is the defining global challenge of our time. It directly affects the lives and wellbeing of peoples across the globe. If it is unaddressed, climate change will deepen existing inequalities within and between states. Increased severity of natural disasters will challenge the capacity of governments and threaten human security. For some, climate change is an existential threat, leading to the displacement of peoples and even the loss of territory of nation states. At the local, national, regional and international levels, governments are called upon to urgently address the severe and worsening consequences of climate change and to mitigate future harms.

      The Forum is jointly organised by International IDEA’s Regional Programme for Asia and the Pacific, the Constitution Transformation Network at Melbourne Law School, and the Policy and Law Center for Environmental Sustainability (PLES) of the National Taiwan University College of Law. It will take place over two days, 23 and 24 May 2024, followed by the Taiwan Roundtable on 25 May 2024, at the National Taiwan University in Taipei, Taiwan. The event is sponsored by the National Science and Technology Council of Taiwan and International IDEA’s Regional Office for Asia and the Pacific.

      The Eighth Melbourne Forum on Constitution Building in Asia and the Pacific will consider the constitutional challenges presented by climate change and opportunities to address the causes and effects of climate change. The Melbourne Forum will focus on Asia and the Pacific, a region highly affected by climate change, although with important variations between countries and subregions in relation to vulnerability, capacity and response.

    Visit the Melbourne Forum webpage to see the themes, materials and videos from the previous seven Melbourne Forums.

#MF2024Climate

#PLES_Law_NTU

#International_IDEA

#Melbourne_Forum

#Climate_and_Constitution

On May 24, 2024, following the discussion on the first day, Session III and Session IV on Day 2 of the Melbourne Forum shifted focus to constitutional text and climate change litigation.

In Session III, speakers and participants closely looked at different constitutional texts and institutional designs in the Asia-Pacific region. Noting the importance of context, speakers and participants exchanged views on the dynamics of text evolution, the historical, cultural, and customary aspects embedded (with emerging challenges on the traditional notions of statehood and territorial sovereignty), constitutional silence, and the comparison between constitutions on the text and in practice.

Session IV of the Melbourne Forum invited the speakers and participants to share thoughts on climate change litigation. In this session, the speakers began by sharing their experiences advancing climate change cases in domestic and international courts. This sharing stimulated lively discussion in the Forum on different dimensions of climate change cases, including social contexts, grounds found in constitutions and/or international laws, and some technical yet complex issues, such as strategies, evidence, remedies sought, professional court, judge training, etc. The Forum further noted that climate change litigation is transnational in nature, and hence there is much to be expected from the worldwide progress.

#MF2024Climate

#Climate_Change_and_Constitution

#NTU_Law_PLES