Oct. 8 saw a major U-turn in the environmental impact assessment (EIA) of CPC Corp, Taiwan’s plan to build a third liquefied natural gas terminal at Guantang Industrial Park (觀塘工業區) in Taoyuan.
During its initial evaluation, the EIA review committee recommended withholding approval of the project, but now it has approved it. In the meantime, several committee meetings leading up to the approval were aborted because a boycott by expert committee members made them inquorate.
There have been constant arguments between supporters and opponents of the project. On the day the project was approved, then-Environmental Protection Administration (EPA) deputy minister Chan Shun-kuei (詹順貴) resigned in protest against the demands that the Cabinet had been making of him. These events have drawn widespread attention public attention to the case.
Similar circumstances surrounded the EIA for the planned construction of a new coal-fired Shenao Power Plant in New Taipei City’s Rueifang District (瑞芳), which took place a few months ago.
There were also constant arguments while that case was being reviewed, and after the project was eventually approved by a majority of one vote, the EPA came under heavy criticism from various sources.
Why are EIA review committees’ conclusions so important that the contending parties struggle to secure each and every vote?
The key reason is the system that gives EIA review committees the power to veto projects they review.
The Environmental Impact Assessment Act (環境影響評估法), which has been in force since 1995, is modeled on US environmental law.
However, it incorporates a system that does not exist in other advanced countries, namely that the authorities are not allowed to give a project the go-ahead if there is no completed and approved EIA or the EIA review committee decides against it.
If the authorities do approve it, their approval is invalid. This means that EIA committees have the power to veto the government’s and businesses’ plans alike. If an EIA committee decides not to approve a project, the project cannot go ahead.
In the early days, courts took the view that EIA review committees’ conclusions were not independent administrative actions, but merely a reference point for the competent industrial authority — that is, the authority governing the relevant sector— when deciding whether to approve a project.
Consequently, stakeholders could not take legal action to demand the annulment of EIA results.
However, starting with a 2003 garbage incinerator construction project in Yunlin County’s Linnei Township (林內), courts began to recognize EIA review results as administrative actions. This meant that stakeholders could indeed take legal action to demand the quashing of EIA review results.
Opponents of a project could already actively participate in its EIA review, where they can use aggressive language and actions to obstruct meetings. They can also use media, rallies, marches and other means to put pressure on review committee members to vote against the project.
Since the 2003 case, if the project is still approved, its opponents can extend the battlefield into the realm of judicial proceedings by taking legal action to annul the conclusion of the EIA review.
By these methods, they can delay implementation of a project and reduce the efficiency of the review, thus clouding projects in uncertainty.
When the Guantang gas terminal project was undergoing its initial evaluation in March and April, the EPA, in response to public demands, invited expert speakers to meetings. However, members of the public who attended the meetings obstructed them by raising procedural matters, interrupting the speakers, and shouting and swearing at them, thus preventing any rational discussion.
The EPA went so far as to issue a news release calling on people to give experts a chance to voice their opinions and not obstruct the meetings over procedural matters. After the case went to the full review committee stage, there were constant protests outside the venue and on several occasions EIA committee members did not show up, causing the meetings to be aborted.
These cases show how their veto power means that EPA and EIA review committee members shoulder a heavy burden when it comes to major decisions about government and private projects, as well as environmental protection, and face intense pressure from opponents and environmentalist groups.
Furthermore, if an EIA case is concluded and approved, opponents can still take legal action against the EPA, demanding that the conclusions be annulled. However, in the meantime, the competent authorities can still give the project the go-ahead, allowing developers to start work on the project.
If the litigation later results in a decision to annul the EIA review, there will then be a contradictory situation in which the EIA approval is annulled, but the development permit remains valid and the project might even have started.
That has happened in the cases of the Central Taiwan Science Park’s third-phase development project at Cising Farm in Taichung’s Houli Township (后里) — where construction was halted, but completed production facilities went on operating — and of the Meiliwan Resort Hotel development on Shanyuan Bay (杉原灣) in Taitung County.
Such situations cause losses for developers and create uncertainty for investors. However, opponents of the projects complain that even when EIA results are annulled, the court rulings cannot be implemented to stop work on the projects.
As for the EPA, it is not the competent authority for the project, but because it is responsible for the EIA review, it would be the defendant when anyone seeks an administrative remedy. It also has to face any criticism. The outcome of all this is that no one is satisfied.
The Shenao Power Plant EIA further highlights the difficult role assigned to the EPA. In that case, the EPA faced widespread recrimination after granting approval.
The EPA said its review was in accordance with the law, and the Ministry of Economic Affairs and Taiwan Power Co should face the public, and clearly explain their energy transition roadmap, instead of letting the EPA absorb all the criticism.
It is unreasonable to put the EPA in this position.
A key way to solving these problems would be to refer to practices in other countries. We should abolish the system that gives veto power to EIA committees.
We should also internalize environmental concepts by integrating the themes of environmental protection and sustainable development into the projects themselves.
EIA reviews should be defined as advisory in nature, serving as only one factor for consideration. It should then be up to the competent authority to decide whether to approve projects after weighing the economic, social, environmental and other factors, thus matching power and responsibility, with the competent authority being wholly responsible.
Only then can we resolve the problems that exist under the present system, which gives EIA committees power without responsibility, as well as the inefficiency and distortion inherent to EIA procedures and the conflicting roles of the EPA.
Yu Cheng-yuan is a lawyer.
Translated by Julian Clegg
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