EIA Law and the Court in the Risk Society—The Mutual Construction of the Court system and Social Context
Date Issued
2011
Date
2011
Author(s)
Chien, Kai-Lun
Abstract
Environmental impact assessment system was very concerned about today. On the operation of the EIA system, in addition to legislation on the level of the system design and system reforms, another very important issue is the role of court and how the court operates this law from the perspective of judicial review. From the EIA decision of contradictions by the court, we also found that, besides the concept of law of logic, how the court play their role appropriately, including how to adjust the definition of standing, as well as the face of professional environmental assessment decision by the administrative agency, will concern two important aspects. The first one is the political and social significance of "environmental risk assessment" under the modern risk society. The second one is the construction of development context and interaction of the experts, civil society, politics and capital.
How the judicial system responses appropriately to Taiwan political, economic and social situation on the environmental risk assessment platform? We have to stand on the basis of understanding of the two issues.
From the perspective of risk society theory, we’ve observed that there are two mutually contradictory development contexts in social and political system of Taiwan. On the one hand, the public perception of risk and significance has produced important changes, and people are no longer confined by science and experts. In contrast, people began to challenge expert politics, authoritarian culture and the monopoly of knowledge, resulting in the social needs of democratic participation in environmental decision-making and risk communication, and this is the key institutional task of EIA law. But on the other hand, from the view of the development path of the globalization risks and competition in economic globalization, Taiwan, as a newly industrialized countries, reduced its schedule of industrialization in the decades to complete, but it’s not like the European countries, whose civil societies had several centuries of historical traditions. Thus under the weak civil society and environmental organization development context, the political and economic forces dominate the Taiwan political decision-making system. This political context inhibited the development of risk communication and democratic participation in environmental decision-making space, and distorting, weakening the institutional task which EIA law should perform.
These two mutually contradictory development contexts were fully demonstrated in the environmental impact assessment system space. Today many criticisms of the EIA institution, especially in the case of the EIA process is often intervened by political and economic forces and the distortion of information, in fact, it can be placed on the two mutually contradictory development contexts to be understood. When the complex political and social development entanglement appears, it is the point that how the court system should play the appropriate role of judicial control and supervision.
This paper points out that the setting of judicial roles and functions will rely on the reflection of legitimacy of executive power when the court face the professional administrative decisions. That is, from the observation of Taiwan''s political, social context, the legal authority of Congress (transmission model) and the functions of administrative professional sources on the thinking of function theory(expert mode) can’t give the executive power fully basis of legitimacy. In contrast, democratic participation, risk communication, and procedural rationality in administrative decision-making (participation model) will become the necessary conditions for the legitimacy of the executive power. Therefore, in the EIA process, it is necessary to give residents or civil groups the full status of participation in the proceedings and the independent procedure right. This reflected in the judicial review of the EIA, on the one hand, this paper claims that court should relax the threshold of standing to be not limited by the criteria of legally protected rights or interests. On the other hand, it could refer to U.S. judicial review, the court should adopt procedure hard look doctrine and require the executive''s decision can not be arbitrary, capricious, or abuse of discretion, allowing the court to give full play to judicial control and oversight functions and to facilitate administrative procedure rationality and risk communication functions.
Subjects
Environmental Impact Assessment
Risk Society
Expert Politics
The Legitimacy of the Executive Power
Procedural Rationality
Risk Communication
Type
thesis
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