Development and Trend of
EIA Litigation in Taiwan
Thomas S.K. Chan
Deputy Minister
Taiwan Environmental Protection Administration (EPA)
September 23, 20181

1. A more diverse environmental movement
1.1 Despite prosperous economy and increased national
income in Taiwan, environmental pollution has become
increasingly serious.
1.2 As people's lives improved and their knowledge increased,
they also gained greater civic awareness.
1.3 Taiwan's political transition from authoritarian rule todemocratization was accompanied by anti-pollution
protests.

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1.4 When the environmental impact assessment (EIA) system
was introduced to Taiwan, the environmental movement
went from the streets to governmental administrative
procedures before turning to judicial relief, following theparticipants’ acquisition of greater professional
knowledge.
1.5 Although citizens' participation in administrative
procedures has been limited, the action of seeking judicial
relief has been fruitful, which not only promptedadministrative procedures to be adjusted, but even led thegovernment to decide to comprehensively review andrevise the EIA system.
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2. Qualitative changes of the EIA introduced to Taiwan
2.1 Prototype from the U.S.: Federal agencies assess how
and to what extent their decisions affect theenvironment.
2.2 Qualitative changes in Taiwan
2.2.1 Review how and to what extent the development
activities of the development organization affect theenvironment.
2.2.2 Submit all to the EPA (committee) for review.

43. Development of EIA litigation
3.1 Traditional revocation litigation: revocation of EIA
conclusions (subjective litigation) = limited to persons orinterested parties subject to administrative action(administrative disposition)
3.2 Emerging citizen suits: The people or public interest groups
through litigation (judicial decisions) prompt a negligent
government agency to perform its duties.
3.3 The above two types of litigation have resulted in excellent
accomplishments in the context of Taiwan's dynamic civilsociety and heightened environmental awareness.
54. Achievements in the development of litigation over therevocation of EIA—a breakthrough in three barriers
4.1 Barrier 1: Is an EIA conclusion litigious?
4.1.1 Taiwan's first administrative relief against the EIA of theLinnei incinerator BOO project in Yunlin County was initiatedby local residents.
4.1.2 The 2001 Nos. 1869 and 1904 rulings by the EPA andKaohsiung High Administrative Court indicated that an EIA
conclusion was merely an internal reference for thegovernment agency to issue development licenses, rather thanan independent administrative disposition.
4.1.3 But the 2003 No. 519 ruling issued by the Supreme
Administrative Court indicated that an EIA conclusion has acertain legal effect and should be an administrative disposition.
4.1.4 In other words, Taiwan's Supreme Administrative Court
recognized that EIA is litigious.
64.2 Barrier 2: Do local residents at the place where development activities occurred being
not those subject to administrative disposition meet the proper requirements for theparties involved?
4.2.1 The 2007 No. 1601 judgment issued by the Supreme Administrative Court
indicated that the rights and interests that might be infringed were not enough toconstitute a basis for obtaining the right of action; but the fact that "the rights andinterests have been prejudiced."
4.2.2 After the unremitting efforts of local residents in many cases, the highadministrative courts and the supreme administrative courts nation-wide have relaxed
the eligibility requirements for the parties involved and reached a consensus that EIA
is a preventive mechanism of environmental risk and that pursuant to Subparagraph 2,
Article 4; Paragraph 1, Article 5; and Articles 7 and 8 of the Environmental Impact
Assessment Act, a normative content that safeguards local residents such as the rightto life (including health), the right to work, and the right to property against
significant adverse effects, shall be the norm for the protection of local residents. To
this end, local residents claim that the review conclusion by the competent authorityof EIA shall be subject to the litigation rights of interested parties, “when it may
cause adverse or significant impact on their rights or interests.” (per the 2013 No. 70
7judgment).

4.3 Barrier 3: The discretion of administrative agencies in the EIA andthe intensity of judicial review
4.3.1 The EIA system is highly technical in nature and is reviewed bya committee that includes non-governmental experts. In
accordance with the principle of administrative law,administrative agencies can have greater discretion, but can thejudiciary be involved to review it? And at what intensity?
4.3.2 The 2005 Nos. 944 and 2466 judgments issued by the Taipei
High Administrative Court indicated that the adoption or nonadoption based on comprehensive EIA information falls within
the scope of the EIA committee's professional judgment. The
court shall respect and not investigate the professional andindependent judgment by the expert members.
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4.4 The 2009 No. 475 judgment, 2010 No. 30 judgment, 2014 Nos. 66,272, and 704 judgments, and 2015 No. 272 judgment, and 2016 No.
483 judgment issued by the Supreme Administrative Court allreiterated that the scope of judicial review of administrative
disposition with professional judgment, such as the EIA conclusion,is as follows:
4.4.1 Whether the judgment made by the administrative authority isbased on wrong fact-finding or incomplete information;
4.4.2 Whether there is any obvious mistake in subsumption when theconcept of law involves the factual relationship;
4.4.3 Whether the interpretation of legal concepts clearly violates thelaw of interpretation or contradicts an existing law of higher
rank;
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4.4.4 Whether the judgment by administrative agencies goesagainst the generally accepted standard of value
judgment;
4.4.5 Whether the judgment by administrative agencies
violates the principle of prohibition of improper
connection due to irrelevant considerations;4.4.6 Whether the judgment by administrative agencies
violates the legal due process;4.4.7 Whether the administrative agency making judgement
is legitimate and has the power of judgement;
4.4.8 Whether the judgment by administrative agencies
breaches the principles that relevant countries under therule of law should abide by, such as the principle ofequality and the principle of public welfare.
104.5 Another point worth noting in particular is the Supreme
Administrative Court 2007 No. 1601 judgment of the EIA of theLinnei incinerator project in Yunlin County. The judgment indicatedthat the construction cost of the contractor should not be directly
linked to public interest, that if an administrative injunction wasillegal, it should be revoked rather than legalized, and that thepossibility of state compensation was another matter and should not
be confused with it. Less than five months after the decision, the firstcase of the revocation of the EIA occurred in Taiwan's history ofenvironmental litigation and judicial history. On January 31, 2008,
the EIA of the Phase 3 development project of Central Taiwan
Science Park (CTSP) at Chihsing Farm (Phase 3 CTSP Development
Project) was revoked by the Taipei High Administrative Court’s
2007 No. 1117 judgment.
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4.6 Domino effect
4.6.1 After the EIA of the Phase 3 CTSP Development Project was revoked,
the EIAs of the development of the Miramar Resort Village at
Shanyuan beach in Taitung, and general industrial waste landfills in
New Taipei City and Hsinchu County were also cancelled in succession
like a domino effect.
4.6.2 In the lawsuit over the revocation of EIA of the Phase 3 CTSP
Development Project, the Supreme Administrative Court on January 21,
2010 dismissed the EPA's appeal with the 2010 No. 30 judgement, withthe case closed.
4.6.3 At that time, the licensing authority refused to order the Central Taiwan
Science Park Bureau responsible for the implementation of the projectto stop work. As a result, local residents filed a petition for a provisional
injunction to cease development activities and injunction to stop theexecution of permitted development, which were approved by theSupreme Administrative Court. The ruling set a precedent for future
motions for temporary rights protection in the EIA lawsuit in the public
12interest.

5. EIA in the eyes of the judiciary—Achievements in thedevelopment of lawsuits over the revocation of EIA
5.1 More than a year after each of the three difficulties weresolved, the Supreme Administrative Court passed fiveconsecutive judgments in favor of the residents and theenvironment on the EIA case—the 2009 Nos. 475, 708,
and 772 judgments and the 2010 Nos. 30 and 709
judgments—with its legal opinion increasingly
consistent in EIA.

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5.2 Taiwan's judicial assessment of EIA following localization andqualitative changes is as follows:
5.2.1 The conclusion of the EIA review after the announcement belongs
to an administrative injunction. As to the highly technical andprofessional judgment, the judiciary should respect the discretionof the administrative agencies, but if the judgment made by anadministrative agency is arbitrarily and illegally abused, thejudiciary still may revoke or modify it.
5.2.2 The first stage of EIA in Taiwan is only a written review ofpredictive analysis proposed by the development organization, ascreening mechanism by nature, assessing whether thedevelopment activities have significant environmentalimplications.
5.2.3 The second phase of the EIA deals with substantive issues, and it
is a more prudent process that requires public participation.
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6. Development of citizen suits against EIA
6.1 The "citizen suit" clause is a feature of US environmental law.
Almost all of environmental protection laws in Taiwan havebeen introduced from the U.S., and the citizen suit system isno exception.
6.2 The U.S. citizen litigation clause empowers individuals to filelawsuits in court, exposing corporate violations of legal
environmental obligations or urging authorities to enforce thelaw strictly. The purpose of the legislation, on the one hand, isto use the pressure of litigation to remind enterprises not totake chances or the competent authority not to be negligent; on
the other hand, to provide the public with a channel ofparticipation within the system, so as not to stage a street
protest every time they cannot find a way to lodge an appeal.
156.3 The legislative evolution of Taiwan citizen suits is as follows:
6.3.1 According to amended Article 9 of the Administrative Litigation Act
promulgated on October 28, 1998, to safeguard public welfare, persons may
file an administrative lawsuit against the administrative agency for illegal
acts that are not related to their rights or legal interests; provided, however,that the law provides otherwise. For legislative reasons, this article wasadded to maintain public welfare by referencing the provisions of Articles 5
and 42 of the Japanese Administrative Litigation Act concerning civil
litigation.
6.3.2 According to Paragraph 1, Article 34 of the Basic Environment Act
promulgated on December 21, 2002, "if a government entity at any level isnegligent in enforcement, persons or public interest groups may, inaccordance with laws and regulations, name said competent authority as adefendant and directly file a lawsuit with the Administrative Court.
6.3.3 The above two legal provisions are declaratory in nature. In essence, there
must be specific provisions of individual laws to give the power ofprosecution, so that the citizen suit system can truly operate.
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6.3.4 The US’s citizen suit system was introduced to Taiwan over time into
various laws: the Air Pollution Control Act as amended and promulgatedon January 20, 1999 (Article 74 at the time was amended and then moved
to Article 81, and now to Article 93), followed by the Waste Disposal Act(Article 72), the Water Pollution Control Act (Article 72), the Soil andGroundwater Pollution Remediation Act Chinese (Article 54), and theMarine Pollution Control Act (Article 59). The Environmental Impact
Assessment Act as amended and promulgated on January 8, 2003 also
followed suit and made amendments (Paragraphs 8 and 9, Article 23thereof).
6.3.5 These clauses are under the provisos of Article 9 of the Administrative
Litigation Act and Article 34 of the Basic Environment Act.
6.3.6 The most recent legislation in Taiwan was the Spatial Planning Act passedby Taiwan’s legislature on December 18, 2015. The formulated citizen
suits provisions apply to where the land authority is found negligent incracking down on the illegal use of land following the implementation ofspatial planning in Taiwan in the years to come.
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6.4 Qualitative changes after reintroduction
6.4.1 In the U.S., the citizen suits fall into two categories: One
is to prosecute private enterprises discharging pollutantsfor breach of their statutory obligations to prevent andcontrol pollution; and the other is to prosecute theadministrator of the EPA for negligence in fulfilling
his/her statutory obligations.
6.4.2 However, the above provisions in Taiwan introduced fromthe U.S. citizen suit system only apply to the lawsuits
against environmental authorities for failing to enforce
their legal obligations.
6.4.3 Such qualitative change undermines the good intention of
the citizen suit system.
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6.5 Taiwan’s society is driven by civil forces. With legal provisions, citizens andpublic interest groups have been making good use of them and launching into
legal battles, resulting in several successful cases of citizen suits, which arelisted as follows:
Legal basis

Air Pollution
Control Act

Water Pollution
Control Act

Waste Disposal
Act

Environmental
ImpactAssessment Act

Article 9 of the
Administrative
Litigation Act

BasicEnvironment
Act

Public interest
groups(including cases
brought
together withvictims)--

Won: 1
Lost: 1

Won: 1
Lost: 6

Won: 0
Lost: 2-

Only victims

Won: 0
Lost: 1

Won: 0
Lost: 1

Won: 0
Lost: 3

Won: 1
Lost: 10-

Won: 0
Lost: 1

Plaintiff status

Total (cases)

11518

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6.6 The essentials of Taiwan’s citizen suits—take theprovisions of Paragraphs 8 and 9, Article 23 of theEnvironmental Impact Assessment Act for example
6.6.1 The development organization must violate theEnvironmental Impact Assessment Act or relevant orders
thereunder.
6.6.2 The competent authority must be negligent in enforcing legal
obligations.
6.6.3 The victims or public interest groups shall notify thecompetent authority in writing, stating its specific negligent
behavior, but it still fails to fulfill its duties more than 60days after receipt of the written notification.

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6.6.4 The victims or public interest groups may name the competentauthority at issue as a defendant and directly file a lawsuitwith an administrative court in order to seek a ruling ordering
the competent authority to carry out implementation.
6.6.4.1 Who are the "victims"?
The subjects of a citizen's lawsuit changed from"any individual or group" to "the victims or public
interest groups."
6.6.4.2 What are public interest groups?
- The law does not expressly provide for that
- Article 35 of the Administrative Litigation Act- “Public interest groups” = “Non-profit organizations”- Do they need to be related to the articles ofassociation or other items?
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6.7 Case explanation
6.7.1 Miramar Resort Village
6.7.2 Hsinchu County Hukou trash transfer
6.7.3 Taoyuan Airport runway number three22

The development project of the Miramar ResortVillage at Shanyuan beach in Taitung, Taiwan

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7. Conclusions
7.1 At present, the EIA litigation in Taiwan is mainly centered on the“action over the revocation of the EIA review conclusion” and“citizen suits.” In the lawsuit over the revocation of theconclusion of the EIA review, not only has the administrativeinjunction restriction been lifted, but the scope of the eligibility
requirements for the parties involved has also been relaxed, which
has contributed a lot in rectifying the violation of the EIA law. In
the citizen suit, the law stipulates that only "the victims or public
interest groups" can initiate lawsuits. Although the scope ofpublic interest litigation has been limited, there are still three wins
to warn the competent authorities to perform their duties in a
responsible manner.
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7.2 In the case of the Miramar Resort Village project, the company
circumvented the EIA first and after a hasty EIA, underwent a citizen
suit and a lawsuit over the revocation of the EIA. The case is the firstin Taiwan in which the ruling was in favor of the plaintiff in a citizen
suit and the only case in Taiwan where a second EIA was revoked bythe court. It became a classic example of environmental litigation inTaiwan. Another example is the Phase 3 CTSP Development Project.
It was the first case in Taiwan where the EIA was cancelled by thecourt. The final result of the case is that the Ministry of Science andTechnology, which is responsible for the development of Taiwan's
high-tech industry, must agree to a donation of NT$50 million fromthe Central Taiwan Science Park Bureau to set up an environmental
protection foundation and give two-thirds of its board’s seats tocitizens and public interest groups. This means the foundation isfunded by the government but run by the people. The two cases areexamples of Taiwan's environmental movement's transformation from
simple street protests to greater diversity.
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7.3 How to redesign a new system that combines credibilityand efficiency through teamwork between the public andprivate sectors with non-governmental forces so as toincrease citizen supervision and reduce unnecessary EIA
disputes will be the most important new issue in Taiwan's
current EIA system.

28Thanks for your attention
Q & A session

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