• Whether a Developer may Request Conditional Approval of Environmental Impact Assessment Based on the Environmental Protection Strategies Whose Efficacy Only can be Proved After Operation Commences
  • September 11, 2015
  • Law Firm: Lee Tsai Partners Attorneys-at-Law - Taipei Office
  • Article 10 of the Amendments to the Constitution of the ROC specifically provides that the development of economics, science and technologies shall be balanced with the protection of environment and ecology. Accordingly, environmental impact assessment (the "EIS") is always a difficult issue faced by enterprises conducting development planning and the competent authorities. The latter are often charged with the responsibilities of both economic development and environmental protection. A while ago, some EIS authority ruled that the environmental impact statement prepared by a developer was "conditionally approved" without any need to conduct the second stage of EIS in accordance with Article 43 of the Enforcement Rules of Environmental Impact Assessment Act. However, a series of decisions have been rendered by the Taipei High Administrative Court recently to impose restrictions on the "conditional approval" of EIS under Article 43 of the Enforcement Rules. Although the EIS authority involved in these specific cases may appeal to the Supreme Administrative Court. This essay summarizes the gist of the 100-Su-1162 Decision, rendered by the Taipei High Administrative Court, as follows.
     
    First, the legal background is that the development by an enterprise is required to go through a review procedure involving two stages of EIS. In the first stage, the impact analysis proposed by the developer is reviewed in writing to assess if the development will potentially have major impact on the environment. The public participation does not commence until the second stage review. Regardless of which stage of the development is approved, the proceeding of the developments and the subsequent use after their completion should be tracked and supervised by the competent authorities of the implementation status of the EIS approval. However, even if the competent authorities may conduct follow-ups afterwards, the court ruled as follows. If whether the strategies or executive conditions pertained by a developer can eliminate the "the likelihood of material environmental impact" from the development, only can be examine and verified afterwards. Such unpredictable executive conditions for exempting the second stage EIS are illegal.
     
    The court in this case held that in case of the "conditional approval" of EIS under Article 43 of the Enforcement Rules of the Environmental Impact Assessment Act, does not includes the "conditions" enumerated as "all kinds of relevant plans and current environmental circumstances within the scope of potential impact of development acts," "potential environmental impact that is expected from development acts" or "environmental protection strategies and alternative proposals," provided by Article 6 of the Environmental Impact Assessment Act, which shall be specified in the environmental impact statement, deliberated and reviewed in the first stage by the EIS committee. In short, the court held that statutory preconditions for approval shall not be replaced by executive conditions, because the administrative agency involved should conduct official investigation of the statutory preconditions before granting the approval. Such obligation may not be replaced or exempt by attaching executive conditions.
     
    The court in this case further held that the "executive conditions" attached by the EIS authority in this case only can be actually tested and supervised after the development completes and the operation commences. The court also mentioned that when the development has been completed and operated, even if the testing and inspection indicate that the executive conditions attached to the EIS approval are not met, nothing more than a fine can be imposed on the developer, and there is no way to order the developer to revoke its development. Accordingly, the court held that the approval made by the EIS authority in this case to conditionally approve the EIS of this development without entering into the second stage EIS would unduly deprive local residents of their participation in expressing their opinions and of their due process benefit. Therefore, the court ruled that approval of the EIS authority is revoked.
     
    In the event that such decision is upheld by the Supreme Administrative Court, the impact on developers will lie in the requirement that a developer should explain in great detail to EIS authority about the environmental protection strategies and their efficacy in prevent and mitigating environmental impact in items such as "all kinds of relevant plans and current environmental circumstances within the scope of potential impact of development acts," "potential environmental impact that is expected from development acts" or "environmental protection strategies and alternative proposals" in the first stage of EIS. In addition, the efficacy of such strategies should be proved before the approval. It may become difficult to request the EIS authority to approve the development by "executive conditions" based on environmental strategy whose efficacy cannot be proved until operation commences.