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The Improvement of Standing Issue of the Environmental Impact Assessment Act

The Improvement of Standing Issue of the Environmental Impact Assessment Act

 

Attorney Shau-Ying Hung

 

The issue of environmental standing has been a controversial constitutional issue in the US.  The leading case, Lujan v. Defenders of Wildlife, 504 U.S. 555, confirmed the Supreme Court’s standing formulation that the plaintiffs had to satisfy both the injury and redressability prongs.  The Environmental Impact Assessment Act of Taiwan derives from the Environmental Impact Assessment system of the U.S.  In Taiwan, the environmental standing issue has also been raised as the main dispute before the courts.  From the path of environmental lawsuits in Taiwan, we could say that the administrative courts have gradually and broadly confirmed the standing to environmental plaintiffs.  The trend creates more regulatory possibility for the local residents and environmental groups to bring actions against the governments’ illegal actions and inactions.

 

The decision of Kaohsiung High Administrative Court of 2003 [docket No. Su-Gan 35] held that the local residents satisfied the citizen-suit provision in the Environmental Impact Assessment Act based on both the “theory of Protection Norm” (“Schutznormtheorie” in German) and the Interpretation No. 469 of Justices of Constitutional Court.  After that, the decisions of Taipei High Administrative Court of 2007 [docket No. Su-Zi 1117] and Kaohsiung High Administrative Court of 2009 [docket No. Su-Zi 47] have confirmed the same holding.  The above three suits were all brought by the local residents against the government’s illegal approval of the developers’ environmental impact statements.

 

As for the government’s illegal inaction, the Administrative Courts have also accepted the broad scope of standing to plaintiffs.  By a decision of 2007 [docket No. Su-Zi 647], Kaohsiung High Administrative Court has recognized an “environmental group” as a “public interest group” and thus the environmental group satisfied citizen-suit provision of section 8 of article 23[1] in the Environmental Impact Assessment Act.  Couple days ago, the decision of Taipei High Administrative Court of 2009 [docket No. Su-Zi 504] was just made.  The court further recognized the “local residents” as the “victims” and held that the local residents have established the plaintiffs standing in lawsuit against the government’s illegal inaction, approval of a development project without the necessary environmental impact assessment, under section 8 of article 23 in the Environmental Impact Assessment Act.  In this decision, the court reasoned that the term of “victims” could be interpreted as victims who have been physically injured as well as victims whose procedural participation rights, such as notice and comment, have been deprived even though the development activities have not been started yet.

 

So far, the Taiwan administrative courts have confirmed the broad scope of environmental standing under the citizen-suit provision of Environmental Impact Assessment Act.  Compared to Taiwan, the U.S. Supreme Court seems to take a stricter attitude towards the standing issue under the limitation of the Article III of the U.S. Constitutional Law.  In Taiwan, the courts provide local residents and environmental groups with standing to redress the government violations of Environmental Impact Assessment Act.  It is a great improvement of environmental citizen-suits in Taiwan.



[1] The section 8 of article 23 in the Environmental Impact Assessment Act states: “…the victims or public interest groups may name the competent authority at issue as a defendant and directly file a lawsuit with an administrative court based on the negligent behavior of the competent authority in fulfilling its implementation duties in order to seek a ruling ordering the competent authority to carry out implementation.”

 
 
 
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