In the previous article “The Financing Dilemma of Taiwan Offshore Wind Power”, we talked about how to solve the financing dilemma that the offshore wind power industry is encountering. Today, we will talk about another dilemma – the Environmental Impact Assessment (EIA). I will brief you on the legal position of EIA and go over the recent effort of amending the law by the EPA.
Not long ago, I chatted with German professors on Environmental law about Taiwan’s environmental impact assessment. When I mentioned that in Taiwan, the effectiveness of any development project can be “vetoed” by EIA results, everyone was dumbstruck. They were so surprised that Taiwan is such a strong advocate in protecting the environment.
For example, in June of 2017, the EPA required nine offshore wind field projects to submit addition information in their applications for further assessment. A while ago, EPA also claimed that developers who can’t pass the assessment by the end of 2017 will have their development rights being revoked. You can imagine the looks on the developers’ faces! It is confusing for many foreigners as to why the EIA is something that you have to receive a green light for, instead of simply submitting reports. Shouldn’t the responsibilities of developers include making a proper EIA report?
In Taiwan, EIA is being used as an additional condition, even a bargaining chip for offshore wind power development projects. Take the issue of compensation for the fishing industry for example; this is not related to environmental concerns, as we mentioned before. The veterans of foreign offshore wind power industries are shocked by disbelief when encountering the otherworldly EIA in Taiwan.
You might think that being strict is great, right? It is fair to ask the industries to take on more environmental responsibilities because they make so much money. Furthermore, the EIA system is not something that we came up with; rather, it was based on the US National Environmental Policy Act of 1969. However, in the US or most countries around the world, including German (a nation known for its environmental protection efforts) and many members of the EU, the general idea is that the EIA report is only one of the required “procedures”. The authority responsible for the development case – usually ones related to economic or industry – will be the ultimate gatekeeper. After taking the environmental aspect into account as one of the factors, the authority will make the final call on whether to give the green light to the development project. The potentially significant environmental impacts published in EIA reports should be considered as only ONE of the MANY considerations in the decision of granting the permission, rather than as the SOLE consideration.
In Taiwan, EIA can be used to overrule a development project. The EIA Act empower the process with so much power – comparable to an imperial edict. However, it does not mean that there is no limitation.
Basically, in foreign countries, all items taken into account through EIA procedures must be dictated by the law. In the past, one of the examples in EU’s EIA instructions is the missing “weather factor” which did not exist before. The clause was added after amending the law. The purpose is straightforward because risks are all investors’ concerns, investors would need to know every risk beforehand. The more factors (climate change and carbon reduction, for example) that the government require the industry to evaluate, the more cost for developers in conducting the EIA. That’s why it should only be implemented if mandated by the law.
The factors that Taiwan’s EIA take into consideration seem to depend on the whims of members or participants of the committees. We usually see news reporting about the development project being “conditionally adopted” after the EIA review. These conditions can encompass almost anything – including terms stricter than those mandated by the Public Nuisance Dispute Mediation Act. For example, one of the terms may demand industries to achieve zero water pollution discharge; other developers may be required to comply with greenhouse gas emission reduction before the Greenhouse Gas Reduction and Management Act has been passed in the Legislative Yuan. Many factories in central and southern parts of the country are even asked to install solar power facilities without any legal basis.
You may not believe that even factors unrelated to environmental impacts have to be considered during the EIA process in Taiwan, such as the aforementioned fishery compensation clause. The repeated inclusion of non-environmental factors will increase the investment risk of developers significantly.
Due to the issues of EIA process in Taiwan, the government recently set out to promote policies seeking to strengthen the function of strategic environmental assessment (SEA). The effort is reflected in the draft amendment of the Environmental Impact Assessment Act promulgated on September 20, 2017.
Before we go over the contents of the SEA, try not to be misguided by the term “EIA” which might influence you initial stance regarding strategic environmental assessment.
In foreign countries, the strategic environmental assessment procedure is often used as the government support for chosen development policies, such as the Offshore Energy Strategic Environmental Assessment of the British government or the Spatial Plan for the German Exclusive Economic Zone in the Baltic Sea by the government of Germany. The government helps to locate wind fields which offer abundant wind resources and avoid sites such as underwater culture, fishery and waterway, which may result in controversies. The purpose for the government is to reduce the burden on industries by communicating among industry players and interested parties. Therefore, the SEA is not a pure EIA, it is an approach comprising solutions to aspects such as land application and sustainable development. The SEA procedures abroad are usually promoted under the framework of trust in the government. With relatively few exceptions, the EIA usually proceeds without much obstacles. This could be seen from the massive progress in offshore wind power development in Europe over recent years.
How did the SEA become spoofed in Taiwan despite the good intentions of the policy? Let us take a look to an example of the SEA. In 2016, the turbines are requested to be built at locations beyond a distance of 500 meters from the habitat of Chinese white dolphins. After a period of time, the distance was extended to 1,000 meters without any legal basis – conditions can change upon whims. The government treats SEA as individual EIA, making the process a burden for the industries. While it might seem like business as usual for locals, foreigners and foreign enterprises find it difficult to understand.
How can the dilemma be solved? Honestly, it is not easy because of the subjective judgment – this is especially true for elders and people who already have biased views. However, the recent discussion on EIA amendment can be merged with the issue of offshore wind power industries and be resolved in one battle. Here, I would like to offer six suggestions:
For the SEA
- The SEA must revert to its’ original essence; it is not individual EIA. Therefore, it should not give rise to more EIA conditions or even become a basis for instituting new legislations.
- The environmental assessment should integrate the usage of maritime space like other foreign SEA’s. It should take on the role of support for promoting given projects.
- MOEA has already developed credit guarantee funding provided to small and medium enterprises (SMEs).
For the EIA
- The EIA is not the same as permission of development, so “non-environmental factors” should not be discussed.
- The EIA should not add conditions that is not mandated by law, and should not become a basis for passing new laws.
- In the long run, the mechanism of veto should be abolished, thereby returning the EIA to its original essence as part of the procedure.
- Amend regulations to include a review period to avoid having the court revoke the EIA due to “procedural defects,” which has been cited in recent cases that were forced to speed up review procedures. This is especially applicable to the large amount of the offshore turbines EIA in recent years.
The draft of the amendment for the EIA act proposed on Sept. 20, 2017 seek to tie the development permission to the EIA. In other words, once the EIA has been revoked, the development permission will be invalidated as well. I am deeply concerned about the direction which amendments of the act appear to be heading.
If the amendment heads in this direction, it will kill the investments for offshore wind power by accident. From the surface, the amendment of the EIA act seems unrelated to the offshore turbines, remaining simply as an amendment to existing regulations. However, since the development of the offshore wind power often involves years of planning, industry players may have to be on their guards even if they acquire the permission of the EIA before the end of the year. This is, because the entire scenario may drastically change overnight if the court decides to revoke the result of the EIA. All the efforts invested by the industry may suddenly get washed down the drain! The challenge for solving the EIA crisis has just begun.