Environment: Proposed Amendments to Environmental Impact Assessment Act

[2017/12/15]

On 20 September 2017, the Environmental Protection Administration (EPA) announced a draft of proposed amendments to the Environmental Impact Assessment Act (EIAA). The draft envisages a major overhaul of the existing EIAA, with the aims of strengthening the role of environmental impact assessments (EIA) in screening development activities, and of enhancing the credibility of the EIA system, in order to make the system clearer and more efficient. The main points of the draft amendments are as follows:

1. Additional development categories:
The types of development activity for which an EIA is required are to be expanded to include the mining rights extension, and the construction of facilities such as cable cars, tourist and other hotels, nursing establishments, energy facilities, and electric power transmission and transformation facilities. Local environmental authorities are to be given the power to set more stringent criteria for the scope of EIAs that are reviewed at local government level, and to define additional categories of development activity within their jurisdictions that require EIAs. (Draft Article 8.)

2. Preconditions for development expressly defined:
A developer may not proceed with a development activity until after the developer’s environmental impact statement and EIA report have been approved by the relevant environmental authority, the developer has obtained a permit from the competent authority for the industry concerned, the developer has produced an EIA implementation statement and submitted it to the environmental authority, and the EIA implementation statement has been reviewed and approved by the environmental authority (draft Articles 11, 18, and 23).

3. Annulment of review conclusion to invalidate development permit:
To resolve doubts over the validity of a development permit following the annulment of the underlying EIA review conclusion, the draft amendments expressly provide that if an EIA review conclusion issued by an environmental authority is annulled by a confirmed administrative appeal decision or by a confirmed court judgment, then any associated development permit shall also become invalid (draft Article 22).

4. New grounds for amendment or cancellation of a review conclusion:
(1) Ex officio action by the environmental authority: If in view of changed circumstances an environmental authority determines that implementation of a development
      activity will have a major adverse impact on the environment, the environmental authority may amend or cancel a previously issued EIA review conclusion (draft
      Article 24).
(2) Application by a developer or interested party: In any of the following circumstances, an owner of land within the development site, or another interested party,
      may apply for cancellation of an EIA review conclusion, stating the grounds for cancellation (draft Article 36):
       a. The developer has not implemented the development activity, or has ceased implementing it.
       b. Due to changed circumstances, the development activity no longer meets the definition of a project requiring an EIA under the EIAA.
       c. Use of the development site for the purposes of the development activity has been completed, or the developer is no longer using the site in accordance
           with the development purposes.

5. New time limits on validity of review conclusions:
In order to avoid the conditions assessed by the EIA are no longer accurate as result of too long a time elapsing between an EIA review and the actual implementation of the development activity, the draft amendments include new provisions regarding the period of validity of review conclusions, as follows:
(1) If a development activity has not been implemented within five years following the announcement of the EIA review conclusion, or has been initiated within five
      years but has subsequently been suspended for more than five years, or in the case of a review conclusion announced before the present amendments are
      enacted, if the development activity has not been implemented within five years following the date of promulgation of the amended EIAA, then the developer
      will be required to submit an analysis of changes that have arisen in the environmental situation, and a response strategy evaluation report, to the environmental
      authority for review, and the developer may not implement the development activity before such review is completed. If the review determines that implementing
      the development activity will have a major adverse environmental impact, the environmental authority may amend or cancel the original review conclusion.
      (Draft Article 30.)
(2) If a development activity has not been implemented within 10 years following the announcement of an EIA review conclusion, or in the case of a review conclusion
      announced before the enactment of the present amendments, if the development activity has not been implemented within 10 years following the date of
      promulgation of the amended EIAA, then the validity of the review conclusion will expire automatically (draft Article 31).

6. Stronger oversight of development activities:
(1) Establishment of monitoring teams: A developer implementing a development activity of a designated type must establish a monitoring team, of which at least two-
      thirds of the members are experts, scholars, local residents, and representatives nominated by local residents and by local civil associations. The team should
      present a monitoring report to the industry competent authority and the environmental authority annually. (Draft Article 34.)
(2) Disclosure of monitoring data: A developer must upload the environmental survey data from the EIA and raw environmental monitoring data collected during the
      development activity, to a website designated by the environmental authority (draft Article 37).

7. Policy EIA to be included in primary legislation:
At present, rules governing assessment of the environmental impact of government policies are contained in administrative decrees. In order to more effectively guide development projects, the draft amendments integrate the regulation of policy EIAs into the EIAA itself.

8. Vicarious liability:
If the statutory representative, agent, employee, or other operative of a developer knowingly makes a false record in a document related to an EIA, or fails to comply with an order to suspend implementation of the development activity, then in addition to the criminal penalties incurred by the individual offender, the developer will also be subject to a fine of up to 10 times the fine available against the offender for the offense committed (draft Article 44).

9. Seizure of unlawful gains:
The draft amendments introduce a clawback system based on Article 20 of the Administrative Penalty Act, whereby in addition to administrative fines imposed for breaches of duties under the EIAA, unlawful gains derived from such violations may also be seized (draft Article 51).

10. Whistleblower clauses:
To encourage developers’ own personnel to report breaches of the law, if an employee of a developer reveals unlawful activities to the environmental authority or to law enforcement agencies, acts as a witness in court proceedings, or refuses to take part in unlawful activities, the developer may not take any unfavorable measures against the employee, and any such measures taken will be invalid. If an employee who has himself breached the penal clauses of the EIAA discloses the contravention to the environmental authority, or voluntarily confesses or turns himself in to law enforcement agencies, criminal penalties against the employee may be reduced or he may be exempted from penalty. (Draft Article 57.)

11. Rewards and confidentiality for reporting infringements:
A person who reports unlawful activities may be awarded a certain proportion of the monies received in administrative fines as a reward, and both the EPA and local environmental authorities must keep the person’s identity secret (draft Article 58).