Ideologically Based Development: What’s the Point of Environmental Impact Assessment?

In 2007 nine members of the EPA’s environmental impact assessment commission co-signed a declaration to protest the Executive Yuan and other agencies’ use of media and personal pressure to interfere with the commissioners’ evaluation of several large development projects such as the Central Science Park, Formosa Plastics Group Steel Plant and the Kuokuang Petrochemical Park Project. This was the first time in the 25 year history of the environmental impact assessment process that commissioners had publicly criticized the executive for interference in what is supposed to be an independent and objective process.

Since the Environmental Impact Assessment Act was passed into law in 1994, it has often been misunderstood as an obstacle to development, while the agency in charge of protecting the environment, the EPA, has failed to grasp its own role or the proper role of other agencies under the EIA Act, the Basic Environmental Act and even their Organic Act. This often results in policy taking precedence over regulations and even laws, even to the extent that the EPA fails to exercise its fundamental duties of supervision.

Wild’s founding director, Robin Winkler, served for a two-year term on the EIA commission during which he attended more than 1000 briefings by developers in over 250 new and ongoing development projects. From this involvement he learned that rarely was there a case that didn’t have major problems, many of which could be attributed to the system. For example, the government commissioners could appoint proxies whereas the non-government commissioners could not, leading to what many believe was manipulation of meeting-results by the EPA by scheduling meeting times when commissioners whose views might have differed from those of the government and developers (or “non-conforming commissioners”) were unavailable.

Winkler believes that the use of the term “prevent” in the law is part of the legal basis of what the EPA used to proudly tout as the “veto right” of commissioners. But in reality, he continues, that “right” is an illusion, for the EPA has many ways to ensure that the “veto” will never be effectively exercised.

For example, when he and his fellow commissioners sought to have the controversial 2,800 MW Changgong #1 and #2 Coal Fired Power Plants vetoed, the EPA allowed the developer, Taiwan Power Company, to withdraw the case prior to its going to the plenary commission, and then to resubmit it after the end of the term of those non-conforming commissioners. Another example was the delay by the EPA in submitting a decision to the plenary commission on a US$ four billion steel plant. Here the non-conforming commissioners had not even vetoed the case, but rather just requested to have the project, proposed by the Formosa Plastics Group, go into a full second phase evaluation. The EPA waited until the commissioners were replaced and then gave it to the new commission for decision (ultimately they also decided on a second phase evaluation; FPG has now taken the plant to Vietnam). Or in the case of the fourth national highway development project, which was rejected by a subcommittee before Robin and the other non-conforming commissioners took office, the EPA let the developer “appeal” to a new subcommittee, whereas the appropriate procedure would have been to take the matter to the plenary commission. A similar form of manipulation occurred in a matter involving the Mackay Hospital Nursing School development in northern Taiwan. And to further bolster the assertion that the “veto right” is illusory, article 14 of the EIA Act gives the developer the right to resubmit projects, and based on his experience as the chair of a subcommittee reviewing an article 14 resubmission case involving the proposed widening of the Chungshan North South Expressway, the veto right granted by law to the commissioners has become, or been invalidated by, the right of EPA officials to allow limitless reviews of a case.

Under the current system, the accuracy, completeness and timeliness of information presented by the developer through its hired consulting company in various reports required in the EIA process has long been and continues to be the subject of intense suspicion. The EPA not only fails to take effective measures address these suspicions, it continues to come up with measures to prevent scrutiny of the data and other materials presented by the developer through means such as its 2008 regulations on “expert meetings”. In the regulations there are strict limitations on the time allocated to hearing the views of the “participants who request to be invited” (those who have to request that the EPA let them join the meeting, i.e., groups and individuals other than the developer, government agencies and carefully selected and screened “experts and scholars”).,The regulations also call for all business to be finished in one meeting and contain a number of other restrictions that demonstrate that there is no interest in getting the full facts on the project or issue under discussion out in the open. Even the relationships of the experts to the developers are not exposed, leaving society at large with no way of believing the results.

The EPA has demonstrated that it lacks a vision for long term economic development and conservation of Taiwan’s natural environment. But it has very effectively demonstrated its ability to ram an EIA through the system faster than Ma Yingjeou says “how far” when the Chinese say “bend over”. Emblematic of this are the “Rules for Guidance in the EIA Process” passed not long after the EIA Act itself became law. Whether pursuant to these rules or simply pursuant to its self-discovered mission to take Taiwan to the brink of environmental disaster, the EPA has shown great skill in working with the developers to keep the EPA’s workload as light as possible by allowing or guiding developers to exclude essential parts of development projects to keep them within the physical scope where no EIA is required, or simply using a different set of national standards such as was the case in the Maokong and Beitou cable car development projects. One might ask whether a gesture towards individuals and groups that are not proponents of a project might be in order.

For many years civic groups have been asking for more participation in the EIA process. In 2002 the EIA Act was amended to allow the remedy of a civil action such that the court may give an order pursuant to a complaint by environmental groups that “the EPA is remiss in its duties”. In these cases the defendant is a government agency rather than the polluter or violator of laws designed to protect the public from infractions or abuse. Civic groups and individuals may also have other administrative remedies, civil and criminal law suits and injunctions. Since our establishment in 2003 Wild at Heart has taken many actions, either on our own or together with other environmental groups or lawyers in order to try and stop or delay projects that are clearly designed to bring short term benefits without concern for the long term problems. Our lawyers have worked through the legal process – lobbying and the courts – but we also try and support like minded civic groups in the streets when it is clear that a record of the justices being committed against present and future generations of humans and other forms of life cannot be accomplished through the courts, the legislature or appeals to executive sanity. Some of the more visible cases have included those against illegal suburban development, illegal construction of incinerators and land fills, industrial parks and hotels on pristine land or seashore as well as criminal suits, one which resulted in jail sentences for a supervisor of a national park and a vice minister.

We so often hear the question asked about how to achieve a “balance between economic and environmental values”. At Wild we view this as asking the wrong question and cite Taiwan’s Basic Environment Act as backing up our position. Article 3 of the Act points out that attention shall be given to the economy, technology, society and the (natural) environment, but in the event of likely damage to the environment, protection of the natural environment shall trump the other considerations. This is simply a recognition of the fact that all economies, all societies and even all technologies are build upon a base or indeed embedded in the natural environment and by destroying that base, there can be no sustainable economy; quite the reverse, without a healthy natural environment, we face economic ruin.