Sat, Oct 23, 2010 page8

• Revising the law governing EIAs

  • By Chan Shun-kuei 詹順貴
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  I read in the papers the other day that Chinese Nationalist Party (KMT) Legislator Wu Yu-sheng (吳育昇) has proposed a revision to the Environmental Impact Assessment Act (環境影響評估法). This revision proposes that the government allow companies to continue construction work on, or operations of, all development projects that have had their initially successful environmental impact assessments (EIA) subsequently overturned by the courts. This is ostensibly based on the principles of promoting public interests and honoring initial guarantees made to the companies.

  Wu freely admitted that this proposal, which had its first reading in the legislature on Friday last week, was put forward specifically to address the controversy surrounding the third-phase expansion of the Central Taiwan Science Park. It was obviously inspired by President Ma Ying-jeou’s (馬英九) Double Ten National Day address and, earlier, his speech at the National Industrial Development Conference on Aug. 19.

  It was here that Ma first mentioned a Supreme Administrative Court ruling that construction work on the third and fourth phases of the science park should be suspended, in the context of his opinion that the judges should have taken into account Article 117 of the Administrative Procedure Act (行政程序法) and Article 198 of the Administrative Appeals Act (行政訴訟法). If they had, Ma said, they would have taken into consideration the greater public interest and would not have revoked the EIA results. This would have guaranteed the companies’ investments, too — according to his line of reasoning.

  Directly equating a private company’s construction costs and investment with public interests is debatable at best. On Sept. 6, 2007, the Supreme Administrative Court handed down Ruling No. 1601 on an appeal concerning the Linnei Township (林內) incinerator construction project. The reason given then is identical to that given for overturning the EIA for the science park. Nothing has changed since then.

  Basically, the court ruled that the plant’s construction costs could not be directly equated with public interests and other social costs needed to be factored in before any decision could be made. As to whether the company involved was liable to receive any compensation, that was considered to be an entirely different matter. Any other ruling would have instantly legitimized the unconventional way the government had proceeded.

  This time round, the court ordered the suspension of work on the third phase of the Central Taiwan Science Park. In Ruling No. 2032 on Sept. 2, it threw out an appeal by the National Science Council, citing a number of reasons including the judges’ opinion that a company’s plant construction and operations are to be considered its private business and have nothing to do with the public interest. This is from page 17 of the ruling.

  There was nothing ambiguous about it. Ma’s not stupid, he has a doctorate in law from Harvard and he leads the KMT government. So why haven’t there been questions about how an EIA — supposedly made by an authoritative body — was unable to get past the judiciary, and why has it been thrown out of court time and again? Instead, the administration has resorted to revising the law in order to leapfrog the courts. It seems intent on making what Environmental Protection Administration Minister Stephen Shen (沈世宏) said on Oct. 2 come true. Shen had called the judges’ ruling meaningless and irrelevant.

  Moreover, when the Taipei High Court overturned the EIA for the science park on Jan 31, 2008, companies such as Sunner Solar and AUO had not yet started construction work on their plants. They chose to ignore the massive media coverage and continued investing despite the risks.

  This is hardly an act of good faith and makes it difficult to claim that the principle of legitimate expectations should apply. Even if they could, the question of whether or not any state compensation would be forthcoming remains. Even then, as the Supreme Administrative Court pointed out, if they can make a claim for compensation, that doesn’t mean the courts should countenance the violation of administrative orders depending on where it occurred.

  Naturally, if there is to be state compensation, there should be an investigation into where the blame lies and, if necessary, the civil servant or servants responsible should have to pay it all back. Perhaps this is precisely what the government is worried about.

  If the government is indeed concerned about private investment, it should make sure that it has completed all the procedures instead of running around like headless chickens trying to rush things through, only to have the judiciary overturn its decision. That would expose companies to even greater uncertainties.

  Taiwanese democracy is the result of decades of hard work, blood, sweat and tears. The value of democracy lies in the rule of law, with the different branches of government providing mutual checks and balances. Theoretically, this keeps the government in check and prevents it from acting unilaterally and becoming too powerful.

  For some reason, however, the system doesn’t appear to be working: The executive branch is taking unilateral decisions, its power is growing and people are starting to feel uneasy about it. The legislature has the power and the duty to keep the government in check. If it decides it is going to act as the government’s poster boy and be little more than a yes-man, then Taiwan’s democracy is on shaky ground.

  Wu should refrain from dealing the death blow to a constitutional government, the EIA system and the way of life in Taiwan, and should immediately withdraw his proposal.

  Chan Shun-kuei is a lawyer and a former environmental impact assessment committee member.

  TRANSLATED BY PAUL COOPER
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