For an environmental impact assessment exercise, it is not necessary to provide an opportunity for response that a party facing administrative sanctions would be entitled to (Taiwan)

Ankwei Chen

The Supreme Administrative Court rendered the 109-Pan-363 Decision on July 9, 2020 (the “Decision”), in which it was held that since an environmental impact assessment does not restrict or deprive people’s rights, it is not necessary to provide the party undergoing the assessment an opportunity to make its comments that a party facing administrative sanctions would be entitled to.

When the appellant was applying for a factory establishment permit, it approached the former Taoyuan County Government Department of Environmental Protection to apply for an environmental protection review, but the department answered that this is not within the scope of matters that require an environmental impact assessment pursuant to the Standards for Determining the Items and Scope of the Environmental Impact Assessment Required for Development Acts (the “Standards”) at the time. Later, when the appellant inquired with the appellee Taoyuan City Government Department of Environmental Protection for an environmental protection review as part of the factory registration amendment process, it was told that  that the land in this case is zoned as a hillside slope reservation land, so the appellant must supplement hillside  slope land supporting documents.  The appellant then asked whether the environmental impact assessment was not required for amending the factory registration, and the appellee replied that, based on the area requested for factory development, and the hillside slope land zone, it meets the requirement for conducting an environmental impact assessment for factory development on hillside slope land of more than one hectare in area pursuant to Article 3, Paragraph 1, Subparagraph 3 of the Standards effective at the time of application  (the “Disposition”).  The appellant then asserted that a detailed investigation had concluded that there was no need for an environmental impact assessment, but the appellee sent out another letter to reiterate that the factory met the determination factors per the Standards at the time of application for an environmental impact assessment.  (the “Repeat Letter”).  Dissatisfied with the appellee’s Disposition and the Repeat Letter, the appellant filed for an administrative appeal.  The  administrative appeal concluded that since the  Repeat Letter was not an administrative decision, appellant’s claims regarding the Repeat Letter cannot be heard, while all remaining claims for relief were rejected.  The appellant brought an administrative action to contest the administrative appeal’s rejection.  After the action was rejected in the Decision, this current appeal was filed.

According to the Decision, environmental impact assessments are conducted to analyze and assess risks concerning the degree and scope of potential impact of a development act on the environment, and they are by nature an assessment procedure and professional examination by an administrative agency.  Since whether an environmental impact assessment is required for a development act does not restrict or deprive the people’s rights, Article 102 of the Administrative Procedure Act, which provides the respondent party an opportunity to present its comments, is not applicable, and it can still be further differentiated from the opportunity for the people to present their comments before the environmental impact assessment results and conclusions are rendered.  Although the appellant argues that if it had been given an opportunity to state its case in accordance with Article 102 of the Administrative Procedure Act, an unfavorable disposition against the appellant could have been avoided, but since there is no provision for the respondent party to present their comments in an environmental impact assessment context, the appeal has no basis in law.