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

For

The 9th 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.”