中文版待續
Breaching Jim Crow in 1941, as the beginning of the Civil Rights movement, Mitchell v. U.S. 313 U.S. 80 (1941) provided an important precedent, requiring equal treatment, for following litigations against discrimination.
Case Summary:
Facts. On April 20, 1937, Congressman Arthur W. Mitchell, the highest ranking black public official, the sole black member of U.S. House of Representatives, boarded a Pullman car in Chicago with a first class ticket to Hot Spring, Arkansas. After train left Memphis, the conductor warned him that he could not stay in the first class section. And then, he was placed in a second-class Jim Crow car.
He filed a complaint with the ICC, asserting that he had experienced “undue or reasonable prejudice or disadvantage”, contrary to federal law. However, the response of the ICC was that under the Interstate Commerce Act “the discrimination and prejudice was plainly not unjust or undue” because low demand from black travelers for luxury facilities justified the railroad practice of segregation withholding them from all blacks.
Holdings. On April 28, 1941, the Supreme Court unanimously ruled in Mitchell’s favor. According to the Interstate Commerce Act of 1887 (ICA), the non-discrimination clause prohibits interstate railways from subjecting anyone to undue or unreasonable prejudice or discriminate whatsoever. Therefore, the Court invalidated railroad practices of denying black passengers equal luxury facilities. Chief Justice Hughes delivered the Court’s opinion, following the McCabe (1914) and Gaines (1938), for Mitchell that denial of equality of accommodations due to his race would invade his fundamental individual right guaranteed by the Fourteenth Amendment and the ICA, and the comparative volume of traffic could not justified the unequal treatment. Mitchell had brought a first-class ticket and segregated facilities must be truly equal, therefore, the railroad practice violated the Act’s requirements.
However, the opinion did not address “segregation” directly and left the issue unsolved for the majority of the Black American passengers who seated in second-class compartments.
Background Discussion:
From society background, attitudes about race, especially to slavery, which British colonists brought into America, shaped deeply the conceptions the White American had and the conditions the African American would live. More seriously, although there were major federal regulations supposing to grant the equal protection to African Americans, such as the Civil Rights Act of 1866 and 1875, the Interstate Commerce Act of 1887, and the Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution, in Dred Scott (1857), the Civil Rights cases (1883), and Plessy (1896), the Supreme Court confirmed “the badge of inferiority” upon African Americans, which the state and local governments had placed for a while. In the 1930s, Jim Crow laws became effective on buses and in bus depots in southern states.
But, long term forces had been making racial changes on the way to modern civil rights society, although slowly. Such as urbanization, industrialization, the great migration of the African American from South to North, and advances in their education, and increasing access to the elective franchise, all enhanced the African American’s ability to claim their rights. Moreover, World War II also accelerated these movements in many aspects. The series changes lead to a modern civil rights movement.
About the political climate at that time, President Franklin D. Roosevelt had been selected in 1936 with unprecedented support from the African American for a Democrat. New Deal did not challenge segregation directly, but its benefits to the African American came in the form of economic assistance, which still encouraged and brought them a measure of economic and political inclusion.
The Mitchell case was occasion for those interesting legal jockeying surrounding the applicability of state segregation laws to interstate passengers, because the Roosevelt Administration was intervening on behalf of Mitchell against I.C.C.
Also, the ideology of World War II was anti-fascist and pro-democracy, which affected American racial attitudes in variety ways. As a journal, the Pittsburgh Courier, during the wartime, pointed it out that “our war is not against Hitler in Europe, but against the Hitler in America.”
Regarding judicial factors, New Deal also change the principles the Supreme Court had in former Lochner era. During the 1930s, in the face of Roosevelt’s celebrated “Court-packing” plan and the New deal’s influence, and after Roosevelt appointed new Justices to replace four former conservative ones, the Supreme Court had gone through a serious change, which was called “Judicial revolution”. The Supreme Court shifted from the Court that “thwarted programs for economic recovery” to the Court that “started to carve out a role for itself as defender of individual liberties and civil rights.”
Conclusion:
Influence. It was in cases involving segregated travel that African American litigants won their first sustained victories against Jim Crow. However, Mitchell was not the first case the Supreme Court has dealt with. Twenty-seven earlier, Justice Hughes had presented his idea that the Court would require equal treatment for the African American on railroad, and he, becoming the Chief Justice, just fulfilled his promise here. But, it must note that Mitchell avoided “equal protection” arguments based on the Fourteenth Amendment, instead depending upon federal powers that had been established on interstate commerce dealing with travel issues.
Because Mitchell only applied to interstate passengers, southern railroad still continued to exclude blacks traveling within a single state from first-class facilities. Although the Court was not ready yet to invalidate segregation founded by Plessy, the Justices could not still overlook blatant racial inequality.
From the past to the future. In Plessy v. Ferguson (1896), Justice John M. Harlan has claimed in his eloquent and prophetic dissent that “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind.” Justice Harlan was wrong and very right. Why he was wrong is because the Constitution of U.S. has its very beginning’s words, “We the people of the United States…”, and the “people” was referring to those “white people”, when our founding Fathers drafted this constitutional law. But why he was absolutely right is because he could foresee, and really brought the dawn of, modern civil rights society. Our Constitution, a living Constitution, has its own vivid life.
As Mitchell testified, he was thinking it might be different if he would have told the conductor who he was, but the result revealed that “it didn’t make a damn bit difference.” Further, he thought “I was in Arkansas…they don’t keep them (the African American) in jail for trial down there, but they take them out and lynch them after they put them in jail, ” therefore, he decided, as the only African American in Congress, he had better not be lynched on this train. At least, about the “equality”, the African American really accepted equal treatments from the White, no matter a Congressman or the populace. However, miserable destinies the African American have suffered and the sorry history we all have both cannot be prescribed in simple words.
Until Brown v. Board of Education (1954) in the Warren Court, “the seeds of race hate planted by the Plessy Court yielded a bitter harvest of divisiveness, racial degradation, and judicial disrespect for the constitutional guarantee of equal treatment under the law.” Also, as in Plessy Justice Harlan presented in his dissent that “the destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law”, we the people, in our diverse society, have the same interests and obligations, in respecting each other, to make our country much greater under our constitutional law, representing our belief, not only a dream.
2007年12月1日 星期六
小故事大借鏡—環境保護之法律上的爭議
壹、前言
這是一個關於產業發展及環境保護爭議之活生生的例子。[1]Reserve Mining成立於1939年，經過了二次大戰以及七零年代的經濟蕭條，其間，明尼蘇達州為了扶持其發展，甚至還因此修改州的憲法。然而，所付出的代價卻是環境的浩劫，原本美麗無污染的五大湖區，已難以回復當初的模樣。
在判決確定後近五年，也就是一直到1980年3月16日，Reserve Mining 才正式停止其污染物之傾倒。這是經過漫長的程序，其中包括了一開始對於究竟有無污染、此污染究竟是否會造成人體的危害等科學上的爭議有待解決外，政治上，利益團體的角力過程也是讓人徒呼負負。
檢視整個發展的經過，我們可以清楚看出環境保護所面對的挑戰。雖然這個案例是發生在近三、四十年前，但同樣的爭議仍是現今環境保護，在政策的決定以及法律上的訂定上，都必須面對的問題。細言之，經濟發展與環境保護的衝突究應如何調適、規範制定上必須解決的科學上的不確定性、複雜的訴訟程序以及適當的賠償方式之擇定等。甚者，國會應採取何種的立法方式來處理日益複雜的環境問題，以及地方政府在執行上往往會產生力有未逮的情形，並且，司法機關在此又應扮演怎樣的角色，這些錯綜複雜的問題，是面對永續發展下必須加以解決的前提。
貳、案例簡介
一、背景
Reserve Mining，是美國二十世紀中期重工業中最大規模的公司之一。從1955年到1980年，Reserve Mining共製造了一千零七十萬噸的鐵藥丸(iron pellets)，每日並傾倒了六萬七千噸的鐵礦廢棄物於蘇必略胡(Lake Superior)(北美五大湖之一，世界最大淡水湖)。其因此嚴重污染有將近八十公里的湖水，所傾倒的礦渣甚至形成了一個三角洲，足以構成地質學上的大事記。[2]
基於二次大戰對於鋼鐵的需要，Reserve Mining 開始在明尼蘇達州的Babbitt 建立了一工業城，提供其工人之居住，並將挖採的鐵礦經由其自建的鐵路運送至約八十公里遠、靠近湖區(Silver Bay)、也是由其建立的工業城中之工廠來加以冶煉。無數的明尼蘇達州州民、以及不論是地方政府以或是州政府，在經濟上均極度依賴此一工業在此設廠，Reserve Mining 在當時更被視為是地方上的英雄。州政府不僅提供其稅收上的優惠，更於1947年免費許可其傾倒其生產過程中所產生礦渣於湖中。Reserve Mining 雇用了數以千記的州民，因此其擁有極大的影響力，甚至使得明尼蘇達州訂定出Taconite之憲法修正案，以確保25年內不增加對其之稅負。[3]
然而，隨著Rachel Carson 所著Silent Spring的出版，美國環保運動風潮正式地展開，人們開始正視環境汙染的嚴重性。美國國會並於1965年通過水品質法(the Water Quality Act)，以要求州政府應訂立經聯邦政府核准許可的水品質標準。[4] 因著這部法律的訂定，相關機關便開始從事水品質的訂定與審核，美國總統林登詹森（Lyndon Johnson）並發布執行命令（Executive Order）以要求聯邦政府各機關必須在決策制定前，與聯邦水污染控制局(the Federal Water Pollution Control Administration, FWPCA)會談，以避免所採取的行政行為會影響到水品質。因此，當Reserve Mining於1969年要求無限延長其許可時，內政部便依據法律規定，成立一研究小組，以審議其可行性。此小組並提出一報告呈述了Reserve Mining排放的相關問題。其甚值質疑了當初授與許可的正當性。此外並提到當地漁業長期以來的抱怨，以及所排放的包括了鐵、鉛、銅、鋅等物質嚴重違反了相關標準。其最後並認為改以陸地棄置的方式係技術上及經濟上可行之方案。[5]
二、爭議經過
隨著前述報告的做成，Reserve Minin的第一個反應便是提出經濟上的恫赫。最後並使得此一報告無法正式公開。但應著研究小組私下將此報告交由新聞界，使得相關訊息得以公諸於大眾，因而促使執行會議得以召開。(此時，明尼蘇達州政府實已投資很多在Reserve Mining上) 然而，在此會議中，Reserve Mining的科學家強烈質疑並批評該報告。並於之後陸續的討論上，納入更多不同科學上的論點。與會者於是將焦點至於Reserve Mining所排放的物質究竟是否造成了湖區的汙染。此外，Reserve Mining另外也尋求政治上解決的途徑。[6]
環保團體the Sierra Club並對地方政府提出訴訟，要求其應嚴格執行相關法令以對抗Reserve Mining。然而地方法院及州最高法院均判決環保團體敗訴。因其認為，並無可得測知的危害存在於水的利用上。[7]
此外，因著美國聯邦環保署的成立，促使相關聯邦法律獲得執行上更大的確保，加上隨著越來越多的討論，執行會議的與會者逐漸改變其原來見解，並在最後提出其結論，認為就相關證據顯示，所排放的礦渣不僅影響到明尼蘇達州，也危害到它州的居民。這樣的結論並提供了聯邦法院介入的基礎。[8]
三、判決結果
聯邦的訴訟程序前後耗時五年才定讞。聯邦審判共花了139天、傳訊了100個證人、提出了1500個證物、涵蓋了18000頁的紀錄報告。Reserve Mining 的運作並經過兩個州政府、明尼蘇達州各審級之州法院及三個聯邦法院之調查，產生了二十份公開的司法審查意見。在政治上，Reserve Mining 及環保團體在州政府、美國國會以及白宮之遊說行動也未曾停歇。此外，這個爭議也成為環境法上受到極為關注的焦點，特別是現代環境法，涉及到科學的不確定性、複雜的訴訟、適當補償與賠償的選擇以及地方政府對於環境保護與資源維護的無能為力。學界記有七本專書以及許多期刊論文對之加以探討。本案更成為現今環境法上爭議之判決先例。[9] 本案對於法院最大的挑戰在於如何處理科學上的不確定性。而這正是現代環境法及環境政策上最顯著的特徵。例如，本案涉及的是石綿(asbestos)之吸入性危害雖眾所周知，但是關於攝取含有石綿纖維之飲用水所可能造成的危害，在當時未知的。法院因此必須分析雙方在科學上的不同意見，並決定究應基於已經證明之損害或是應該在完全了解其間因果關係前，即依據預警原則來避免損害之發生，以決定可適用之法律。根據判決，法院最後是採取以科學為基礎之預警原則，來作為其裁判的基礎。也因此成為後來判決的重要參考先例。[10]
待續......
這是一個關於產業發展及環境保護爭議之活生生的例子。[1]Reserve Mining成立於1939年，經過了二次大戰以及七零年代的經濟蕭條，其間，明尼蘇達州為了扶持其發展，甚至還因此修改州的憲法。然而，所付出的代價卻是環境的浩劫，原本美麗無污染的五大湖區，已難以回復當初的模樣。
在判決確定後近五年，也就是一直到1980年3月16日，Reserve Mining 才正式停止其污染物之傾倒。這是經過漫長的程序，其中包括了一開始對於究竟有無污染、此污染究竟是否會造成人體的危害等科學上的爭議有待解決外，政治上，利益團體的角力過程也是讓人徒呼負負。
檢視整個發展的經過，我們可以清楚看出環境保護所面對的挑戰。雖然這個案例是發生在近三、四十年前，但同樣的爭議仍是現今環境保護，在政策的決定以及法律上的訂定上，都必須面對的問題。細言之，經濟發展與環境保護的衝突究應如何調適、規範制定上必須解決的科學上的不確定性、複雜的訴訟程序以及適當的賠償方式之擇定等。甚者，國會應採取何種的立法方式來處理日益複雜的環境問題，以及地方政府在執行上往往會產生力有未逮的情形，並且，司法機關在此又應扮演怎樣的角色，這些錯綜複雜的問題，是面對永續發展下必須加以解決的前提。
貳、案例簡介
一、背景
Reserve Mining，是美國二十世紀中期重工業中最大規模的公司之一。從1955年到1980年，Reserve Mining共製造了一千零七十萬噸的鐵藥丸(iron pellets)，每日並傾倒了六萬七千噸的鐵礦廢棄物於蘇必略胡(Lake Superior)(北美五大湖之一，世界最大淡水湖)。其因此嚴重污染有將近八十公里的湖水，所傾倒的礦渣甚至形成了一個三角洲，足以構成地質學上的大事記。[2]
基於二次大戰對於鋼鐵的需要，Reserve Mining 開始在明尼蘇達州的Babbitt 建立了一工業城，提供其工人之居住，並將挖採的鐵礦經由其自建的鐵路運送至約八十公里遠、靠近湖區(Silver Bay)、也是由其建立的工業城中之工廠來加以冶煉。無數的明尼蘇達州州民、以及不論是地方政府以或是州政府，在經濟上均極度依賴此一工業在此設廠，Reserve Mining 在當時更被視為是地方上的英雄。州政府不僅提供其稅收上的優惠，更於1947年免費許可其傾倒其生產過程中所產生礦渣於湖中。Reserve Mining 雇用了數以千記的州民，因此其擁有極大的影響力，甚至使得明尼蘇達州訂定出Taconite之憲法修正案，以確保25年內不增加對其之稅負。[3]
然而，隨著Rachel Carson 所著Silent Spring的出版，美國環保運動風潮正式地展開，人們開始正視環境汙染的嚴重性。美國國會並於1965年通過水品質法(the Water Quality Act)，以要求州政府應訂立經聯邦政府核准許可的水品質標準。[4] 因著這部法律的訂定，相關機關便開始從事水品質的訂定與審核，美國總統林登詹森（Lyndon Johnson）並發布執行命令（Executive Order）以要求聯邦政府各機關必須在決策制定前，與聯邦水污染控制局(the Federal Water Pollution Control Administration, FWPCA)會談，以避免所採取的行政行為會影響到水品質。因此，當Reserve Mining於1969年要求無限延長其許可時，內政部便依據法律規定，成立一研究小組，以審議其可行性。此小組並提出一報告呈述了Reserve Mining排放的相關問題。其甚值質疑了當初授與許可的正當性。此外並提到當地漁業長期以來的抱怨，以及所排放的包括了鐵、鉛、銅、鋅等物質嚴重違反了相關標準。其最後並認為改以陸地棄置的方式係技術上及經濟上可行之方案。[5]
二、爭議經過
隨著前述報告的做成，Reserve Minin的第一個反應便是提出經濟上的恫赫。最後並使得此一報告無法正式公開。但應著研究小組私下將此報告交由新聞界，使得相關訊息得以公諸於大眾，因而促使執行會議得以召開。(此時，明尼蘇達州政府實已投資很多在Reserve Mining上) 然而，在此會議中，Reserve Mining的科學家強烈質疑並批評該報告。並於之後陸續的討論上，納入更多不同科學上的論點。與會者於是將焦點至於Reserve Mining所排放的物質究竟是否造成了湖區的汙染。此外，Reserve Mining另外也尋求政治上解決的途徑。[6]
環保團體the Sierra Club並對地方政府提出訴訟，要求其應嚴格執行相關法令以對抗Reserve Mining。然而地方法院及州最高法院均判決環保團體敗訴。因其認為，並無可得測知的危害存在於水的利用上。[7]
此外，因著美國聯邦環保署的成立，促使相關聯邦法律獲得執行上更大的確保，加上隨著越來越多的討論，執行會議的與會者逐漸改變其原來見解，並在最後提出其結論，認為就相關證據顯示，所排放的礦渣不僅影響到明尼蘇達州，也危害到它州的居民。這樣的結論並提供了聯邦法院介入的基礎。[8]
三、判決結果
聯邦的訴訟程序前後耗時五年才定讞。聯邦審判共花了139天、傳訊了100個證人、提出了1500個證物、涵蓋了18000頁的紀錄報告。Reserve Mining 的運作並經過兩個州政府、明尼蘇達州各審級之州法院及三個聯邦法院之調查，產生了二十份公開的司法審查意見。在政治上，Reserve Mining 及環保團體在州政府、美國國會以及白宮之遊說行動也未曾停歇。此外，這個爭議也成為環境法上受到極為關注的焦點，特別是現代環境法，涉及到科學的不確定性、複雜的訴訟、適當補償與賠償的選擇以及地方政府對於環境保護與資源維護的無能為力。學界記有七本專書以及許多期刊論文對之加以探討。本案更成為現今環境法上爭議之判決先例。[9] 本案對於法院最大的挑戰在於如何處理科學上的不確定性。而這正是現代環境法及環境政策上最顯著的特徵。例如，本案涉及的是石綿(asbestos)之吸入性危害雖眾所周知，但是關於攝取含有石綿纖維之飲用水所可能造成的危害，在當時未知的。法院因此必須分析雙方在科學上的不同意見，並決定究應基於已經證明之損害或是應該在完全了解其間因果關係前，即依據預警原則來避免損害之發生，以決定可適用之法律。根據判決，法院最後是採取以科學為基礎之預警原則，來作為其裁判的基礎。也因此成為後來判決的重要參考先例。[10]
待續......
環境保護規範手段之研究--以空氣污染為對象
隨著經濟及工業的發展，環境問題，特別是空氣污染，也愈趨嚴重。因此，如何在發展經濟及工業的同時，又能避免空氣品質的惡化，在今日全球化的社會，這樣的挑戰是我們必須加以面對及解決的。1992年里約宣言即提到:「為了達到永續發展，環境保護亦係構成發展過程中之一部分，而非視為無關之因素。」
甚者，這樣的問題不只是影響我們這一世代，更是影響到我們的下一代。因此，在眾多規範手段中，要又如何選擇出真的有效率、可以有效兼顧經濟及環保的需要，便是一項關鍵性的要素。
除了提升民眾的環保意識、深化環保教育，最有效、也是最直接達到環境保護的目的，仍是在於直接規範污染源之污染排放。而基本的規範手段包括有傳統的命令與控制，以及新興的經濟誘因制度。這兩個基本制度皆為美國清潔空氣法所採用。其中又以市場導向的規範方式為其他國家--包括台灣、以及國際條約所爭相效仿學習的對象。 本篇論文主要的目的在於探討美國的經驗，並參酌了台灣本身所具備的法律文化特性，提出相關思考，來幫助台灣可以更有效、完善地控制空氣污染。特別是台灣正面對下一階段之環保規範措施--以市場為導向--實施之際，相關制度的優缺點討論，以及實證經驗上的探討，應是當務之急。
I. INTRODUCTION
A. Purpose of the Thesis
As a consequence of economic and industrial development, environmental problems, particularly air pollution, are getting more serious today. Learning how to promote the development of the economy and industry, while preventing the deterioration of the quality of the air in the globalized society, is a huge challenge in front of us. “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”.[1]
Moreover, both developed countries like United States and developing countries like Taiwan face the predicament of balancing the two interests of economic development and environmental protection. Environmental problems not only affect our generation, but also remain a threat to the future generation.[2] Therefore, selecting a truly effective and workable approach to harmonize out the economic and environmental needs is a crucial issue.
The main purpose of this paper is to analyze U.S. experience in dealing with air pollution control and use that knowledge to devise a better air pollution control system in Taiwan, especially as Taiwan is standing the crossroad for considering next step to protect the environment.
Also, as a developing country toward the developed country, the studying from Taiwan’s experience will be a good lesson for the countries in the Asia Pacific.
B. Regulating Measures--the NSR and the CAT
Basically, there are two approaches to control pollution. One is the traditional way, the command-and-control approach (CAC); the other is the relatively new Economic Incentive System (EIS), where market-based mechanisms are used to manage the emissions of pollutants. In fact, these are two different types of regulation of sources of pollution. According the Coase theorem, using economic regulation offers an alternative to traditional "command and control" schemes and makes the legal culture reconsider the political nature.[3] Market-based regulation does not focus on how the permitted levels of emissions should be done externally to the market, but on how they are allocated among polluters. Both are employed in the Clean Air Act (CAA) of the U.S.
C. Context
I will discuss air pollution control in Taiwan, including the background of economic and politics development, and Taiwan’s environmental policy and law. Also, I will present the dilemma Taiwan is encountering in environmental protection.
Further, I will summarize the current situation of the U.S.’s environmental law. I will evaluate advantages and disadvantages of each different approach to control air pollution, and discuss what kind of issues each approach is facing. Moreover, I will propose an optimal legal model to coordinate these approaches.
Finally, I will try to present how the U.S. ideas might be included into Taiwan’s legal system, based on Taiwan’s own legal culture, which will advance the air pollution control in Taiwan.
II. AIR POLLUTION CONTROL IN TAIWAN
A. Framework of Environmental Law and Policy
1. The Background
a. The Geographical and Physical Situation
As a small island, the high density of the population and factory causes heavy environmental loading.
Compared with the population and vehicle densities of other countries, these densities are about 1.8 times those of Japan, 2.6 times those of Germany and the UK, and 22 times those of the US. In addition, the factory density ranged 2.4 to 69.5 times, and the amount of the consumed energy per square kilometer was about 1.7 to 10.2 times that of the mentioned countries.[4] With the heavy environmental loading, the air quality improvement tasks to attain the same air quality level as that of the advanced countries is getting harder to pursue.
b. The Development of Economics and Politics
Also, because of rapid industrialization, the environment is getting serious deterioration today.
Rapid industrialization during the latter half of the twentieth century resulted in large amounts of unmanaged industrial pollution in Taiwan. The contemporaneous increase in per capita income and domestic consumption resulted in dramatic increases in air pollution.
In Taiwan, environmental policy (mainly pollution abatement) has commonly been regarded as a part of the nation's economic policy, and therefore has been greatly influenced by economic development needs.[5]
On the other hand, Taiwan has undergone a tremendous transition toward democracy in the last two decades. On July 15, 1987 the "martial law," imposed since 1949, was lifted. As Taiwan is approaching developed-nation status, the Taiwanese people are demanding a higher quality of life commensurate with Taiwan's elevated level of economic development. Also the people have more opportunities to claim and demand and even participate in implementing the environmental protection efforts.
As Taiwan moved from governance by martial law to a representative democracy, the central government increased efforts to incorporate effective pollution regulation across industry sectors, first in response to domestic demand, and later in response to international pressure.[6] In its determination to make the island green again without losing economic stability, the Taiwanese government started thinking about how to balance and harmonize these two conflicting interests.
2. Trend of Environmental Law and Policy
a. Tenth Amendment of Constitution and the Basic Environmental Act
The 1999 constitutional revision added a provision entitled Section 2, Article 10 of the Additional Articles of the Constitution, providing that "[e]nvironmental and ecological protection shall be given equal consideration with economic and technological development."[7] Although whether the Tenth Amendment of the Taiwanese Constitution effectively promotes environmental protection remains to be proved, it at least presents a national goal as a superior guidance to direct the government, including the legislative, administrative, and judicial branches.
The Basic Environmental Act, as a fundamental environmental protection law, was passed in November 2002. According to article III：
“[e]conomic, technological and social development shall equally emphasize environmental protection based on long-term national interests. However, in the event that economic, technological or social development has a seriously negative impact on the environment or there is concern of endangering the environment, the protection of the environment shall prevail.”
Not only amending the constitutional law but also enacting the fundamental environmental law, these laws give environmental protection precedence over economic development when the two come into conflict.[8]
These advances may help to mitigate the general lack of coordination among development departments and environmental protection departments at the central level, as well as a general disconnect between central economic planning and local environmental realities.[9]
b. The Influence of International Environmental Law
Because of its ambiguous international political status as a developing country that needs assistance from other developed countries, Taiwan has to comply with various obligations from several international agreements and treaties although Taiwan is not a member of those international institutions.
Taiwan does not want to find itself behind the current global standards in pollution enforcement because this would prevent it from participating in international organizations such as the World Trade Organization.[10] Hence, due to this practical and significant influence, Taiwan makes efforts to reflect those international treaties and agreements in domestic law and policies.
B. The Air Pollution Control Law
The Air Pollution Control Act (APCA) was passed in 1975. These statutes were fairly unsophisticated and depended on the Bureau of Environmental Protection, precursor to TEPA, and then on the weak TEPA, formed in 1987, to create and enforce effluent limits, which it often failed to do.[11] However, through the political development and constitutional reform and a series environmental movements,[12] the people and government realized the importance of environmental protection and then started paying attention and making a lot of efforts to achieve the goal of environmental protection.
The measures of implementing environmental policy include the command-and-control approach, the economic incentives or market-based instruments, and the so-called social tools such as offering information, communication, and education.[13] When facing the dilemma of economic development and environmental protection, the TEPA would like to establish diverse regulatory systems to achieve environmental protection.
Basically, Taiwan also adopts two basic approaches to regulate and control air pollution. As a traditional approach of command-and-control, Taiwan has established a substantive and integral legal system. But for the market-based system, the Cap-and-Trade program which was enacted in 1992, because it is very complicated and there are many prerequisites for its operation, this approach is still on the preparing stage today.
1. The Command-and-Control (CAC) Approach
The TEPA continues primarily on the command-and-control regulatory approach. Basically, administrative controls of the APCA legal structure are essentially classified into three categories: (1) ever- increasing emission standards for both stationary and mobile sources, (2) clean fuel criteria, and (3) monitoring and inspection systems.[14]
The CAC approach embraces enacting the standards of environmental quality and emissions, issuing the emissions allowance, inspection and monitoring, and the adequate punishment.[15] These measures include administrative regulation, rule, order, guidance, plan, and inspecting and monitoring.
Currently, the TEPA focuses on establishing the air quality monitoring networks of the entire country of Taiwan. The TEPA conducts environmental monitoring so that the information of the ambient environmental quality can be accessible to the general public. The air quality in each area in Taiwan is under the surveillance of the network of air quality monitoring stations.[16]
2. A New Approach--Economic Incentive System (EIS)
To meet the public demand for a better air quality and balance the needs of development and protection, the TEPA has initiated an economic incentive plan to supplement the current administrative controls. The economic incentive policy was adopted in the Air Pollution Control Act Amendment in 1992, which is called the CAT program. The Air Pollution Control Act employs the trading permit (§ 24), offset and banking (§§ 8, 9, 12), bubble (§ 27) and uses the principle of polluter pay to levy pollution fee and found the Air Pollution Control Fund (§§ 16, 18, 19).
However, the TEPA is still struggling to set the proper total limitations, which is a political question, and relative and detailed regulations that include how to enforce the permit system, offset, bank, and trading methods.[17]
In order to successfully enforce this new approach, the TEPA also sets the Cap-and-Trade Strategies as the policy guidance for the agency to develop and enact regulations. In the CAP Strategies of the CAT, the TEPA is to establish the air quality standards and the air quality monitoring station network, classify the air quality areas and promulgate the CAP areas, stipulate and implement the CAP plan and the air pollution control plan, classify the air quality areas into the attainment and nonattainment areas, proceed with emission reduction in the nonattainment areas, and promote the economic-incentive emission banking, offsetting, and trading regulations.[18]
However, many critics doubt this program can be successfully enforced because this system is very complicated and there are many prerequisites for its operation.
The Cap-and-Trade program which Taiwan copies from the U.S. legal system and experience is still on the initial stage.[19] Therefore, this is a good time to rethink and re-evaluate whether Taiwan should enforce it and how to work it out in Taiwan by using the research discussed infra.
C. Conclusion- The Dilemma Taiwan Confronts
The Air Pollution Control Act was first promulgated in 1975 and the last revision was passed in 2006. As a result, the air pollution problems in Taiwan have been gradually improved after the implementation of the Act for more than 20 years.[20]
Following the development of economics and politics and increased public awareness about environmental issues, the government is trying to implement some other new approach to balance the need of each aspect. Taiwan's shift from adopting only command-and-control regulation to a multi-faceted approach--including market incentives, industry group self-regulation, management-based approaches, voluntary disclosure schemes, and audit requirements designed to increase transparency and accountability of industry and regulators--reflects a progression of pollution laws similar to those in countries that industrialized ahead of Taiwan.[21]
In light of these different incentive policies, Taiwan needs to adopt its own policy to fit its unique culture. As discussed supra, Taiwan hopes the competitive ability of economic development can be maintained without deteriorating environmental protection. However, as many scholars do, the Taiwanese government seems to put too much weight on the trading program.
Is the trading program really efficient and effective? Can the trading program really achieve the goal of balancing development and protection? Is Taiwan ready to implement this complicated and expensive legal system? Does the trading program conform to Taiwan’s legal and political culture? And the big challenge for Taiwan will be how to decide the target total emission limitation. The Cap-and-Trade program itself cannot give us the answer to that question. We need to keep all of these questions in mind.
III. AMERICAN’S EXPERIENCE
The federal Air Pollution Prevention and Control Act commonly known as the Clean Air Act (CAA), is a confusing statutory scheme that resulted from a multitude of enactments dating back to 1955. Significant amendments were made in 1970, 1977, and 1990. Today’s CAA is the outcome of hard-fought legislative battles and compromises over the types of pollution control strategies to adopt and the degree of regulation to impose upon sources emitting air pollution, from automobiles to manufacturing facilities.[22]
The attempt to balance these different and sometimes conflicting goals has led to a complicated regulatory system with an uncertain and changing balance among environmental protection, economic growth, and energy needs. In order to address this diversity, the Clean Air Act seeks to protect air quality through a system of health-based standards and technology-based standards.[23] The Clean Air Act has been described as "one of the most complicated statutes yet produced by a modern industrial state."[24]
A. Overview of the NSR
1. The New Source Review (NSR)
The primary purpose of CAA is to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare.”[25] To achieve this goal, Congress delegated to the EPA the authority to promulgate the National Ambient Air Quality Standards (NAAQS).[26] The EPA listed pollutants that are found in the ambient air from sources and “cause or continue to air pollution which may reasonably be anticipated to endanger public health or welfare.”[27]
Then, the EPA developed two standards for each of these listed pollutants. The primary standard must be at a level that "protects the public health" while "allowing an adequate margin of safety."[28] The secondary standard must be at a level "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air."[29]
The EPA has identified SO2, NOx, particulate matter (PM), carbon monoxide (CO), lead, and ozone as criteria pollutants that may reasonably be found to endanger public health or welfare.[30] Also, the structure of the CAA mandates that each state should set up a State Implementation Plan (SIP) that specifies the manner and means by which the state would achieve and maintain NAQQS.[31]
The 1970 Amendments required the EPA to set emission standards--the New Source Performance Standards (NSPS)--for new or modified stationary sources that emit the pollutants identified under the NAAQS.[32] The NSPS complements the NAAQS system and represents Congress’ effort to require steady improvement of air quality over time as new sources came into operation. Congress expected that air quality would improve as old sources were replaced by sources subject to the NSPS.[33]
In 1977, Congress added Part C of subchapter Ⅰ, “Prevention of Significant Deterioration of Air Quality”, and Part D, “Plan Requirements for Nonattainment Areas.”[34] These two sections divide the country’s air resources into two categories, attainment areas and nonattainment areas, and contain the primary requirements of the NSR program.[35] In other words, the NSR is comprised of two programs: (1) the nonattainment program, aimed at major stationary sources in nonattainment areas, and (2) the PSD program, aimed at major stationary sources in attainment areas.[36] An attainment area is "any area that meets the national primary or secondary ambient air quality standard for the pollutant."[37] A nonattainment area is "any area that does not meet the national primary or secondary ambient air quality standard for the pollutant."[38]
a. The Goal and Legislature Intent of the NSR
Congress enacted the NSR with the belief that new and existing major sources of air pollution should utilize modern pollution control equipment; therefore, Congress thought it would be easier, cheaper, and more efficient to install the equipment during the construction of a new major source or modification of an existing major source.[39]
Moreover, Congress believed that the "grandfathered" power plants would eventually need to be upgraded, which would trigger the NSR or cause the owners or operators of the older plants to retire them from service.
In other words, major sources in attainment areas are subject to the visibility program within the PSD review.[40] And, in the nonattainment area the NSR requires new and modified major stationary sources to obtain permits prior to construction or modification.[41] Further, in order to obtain a preconstruction permit, the facility must prove to the agency that it would not cause a violation of the NAAQS or any applicable the PSD regulations or regulations of the nonattainment program in compliance with the NAAQS.[42]
According to Michael Settineri’s analysis on these Parts, their legislative history, and subsequent case law, the amendments have three primary goals: (1) to assure that attainment areas will not be downgraded to nonattainment areas; (2) to achieve the NAAQS in nonattainment areas; and (3) to "allow for continued economic growth in both attainment and nonattainment areas."[43] Therefore, to reach these goals, Parts C and D place numerous requirements on "major"[44] stationary sources.[45]
b. Technology-Based Standards
In its attempt to balance the development of economics, energy needs, and environmental protection, the CAA seeks to protect air quality by using a system of health-based standards and technology-based standards.[46]
Section 111 also requires EPA to set the maximum emission rate for any air pollutant that each listed category of new or modified stationary sources could release.[47] The emission standards for each category are based on "the best system of emission reduction considering cost, energy, and any non-air quality impacts on health or the environment which . . . has been adequately demonstrated."[48]
In sum, the source proposing the construction must demonstrate that it is equipped with qualified instruments and that the benefit of the proposed source significantly outweighs the environmental and social costs imposed as a result of its location, construction, or modification.[49]
c. Pre-construction process and the trigger threshold
The NSR is implemented by requiring a source to obtain a permit prior to construction or major modification. The permit establishes and requires various actions that the sources must undertake to control their emissions of air pollutants. However, the NSR only applies when the construction project will emit air pollution that exceeds threshold levels established in the NSR regulations.
For a new source, the NSR is triggered only when the potential emissions qualify as major. For an existing major source making a modification, the NSR is only triggered when the modification will result in a significant net increase in emissions.[50]
2. Criticism of the NSR-- Evaluation-Advantages and Disadvantages
a. The Benefits of the NSR
1. Fairness--same standards
Because the NSR requires similar sources in the same area to install the same technology meeting the same standards, it can offer fairness to the regulated community.[51]
2. Feasibility and Innovation--technical requirement and driver
Proponents also believe that the NSR achieves the highest feasible environmental protection available because it requires all new or modified facilities to install at least the minimum required equipment.[52] Furthermore, the NSR also expedites the restoration of air quality in nonattainment areas by requiring the strict standard for new and modified sources.
Also, the NSR supporters claim that the program drives industry to develop new, environmentally sound technologies. As a technology-based standard, supporters aver that the NSR entices companies to strive to innovate new technologies and to integrate control technology from one type of facility to another.[53] The proponents maintain that if companies do develop feasible technologies, then other programs would require implementation of those technologies across the industry.[54]
b. The Drawbacks of the NSR
The attempt to balance those conflicting interests of environmental protection and economic and energy needs has resulted in a highly complicated regulatory regime that is often criticized as burdensome, complex, time-consuming, costly, and inflexible.[55] And it is not surprising that industries have an incentive to avoid triggering the NSR by taking advantage of the loopholes in the NSR program.[56] Recent commentators have been very critical of the New Source Review program's ability to achieve its general goals.[57]
1. Some argue that the NSR is unfair because it applies different standards for the same pollutant to different industries.[58] Because states often determine BACT "on a case-by-case basis, taking into account . . . other costs," even the same type of facilities may be subject to different standards for the same pollutant.[59]
2. These standards do not provide actual incentives, economic or otherwise, for industry to develop technologies that reduce emissions below that standard.[60] Because there are large cost of advancement increases associated with modernization, facilities do not have the incentive to update and improve units.[61]
3. Also, industries do not capitalize on the opportunities to develop technologies because of the uncertainty that accompanies them. If an industry develops a new technology that is economically feasible in one state, it may not be feasible in another because the states independently choose what "other costs" to take into account. This broad discretion produces uncertainty, which in turn eliminates the incentive for industry to develop new technology.[62]
4. The NSR imposes excessive costs and burdens "on sources, administrative agencies, and society."[63] The NSR "is not cost-effective because it normally requires all industries to comply with the same pollution limits even though one industry may be able to reduce its pollution more cheaply than another."[64]
Furthermore, critics argue that complying with the NSR is more expensive and time-consuming than other means of regulation.[65] The determination of whether a facility is subject to the NSR is costly. For example, the actual-to-projected-actual test for modification can require extensive monitoring and reporting.[66]
B. Overview of the Cap-and-Trade Program
Before the 1990 Amendments, the CAA relied mainly on the traditional command-and-control regulatory scheme. However, many critics assert that this system limited utilities’ production options in complying with emission caps, thereby causing that those polluters could not meet these requirements in a cost-effective way and even decreasing incentives to reduce their emissions.[67]
Therefore, scholars, legislators, and the industry proposed the alternative acid rain control as the 1990 Amendments of the CAA, which even obtained support from environmental groups.
Allowance Trading:
The Acid Rain Program represents a dramatic departure from traditional command-and-control regulatory methods which establish specific, inflexible emissions limitations with which all affected sources must comply. Instead, the Acid Rain Program introduces an allowance trading system that harnesses the incentives of the free market to reduce pollution.[68] Affected utility units were allocated allowances based on their historical fuel consumption and a specific emission rate. Each allowance permits a unit to emit 1 ton of SO2 during or after a specified year. In a given year, one allowance will be retired and cannot be used again.[69]
Allowances may be bought, sold, or banked. Regardless of the number of allowances a source holds, it cannot emit at a level that would violate federal or state limits set under Title I of the CAA to protect public health.
Emissions Monitoring and Reporting:
Each unit must continuously measure and record its emissions (continuous emission monitoring system, CEM). The emissions monitoring and reporting systems are critical to the program.[70] Therefore, the accurate information from CEM and feasibility of the monitoring technology will be prerequisites for the success of this system.
Excess Emission:
Units must pay a penalty if annual emissions exceed the number of allowance. In addition, violating utilities must offset the excess SO2 emissions with allowance in an amount equivalent to the excess.[71]
1. The Cap-and-Trade program--for sulfur dioxide (SO2)
Setting a cap and getting a trade
The framework used in each phase is a cap-and-trade (emissions trading) system. Under this system the cap is set at the maximum amount of SO2 emissions allowed. And then, Congress allocates the emissions, or allowances, to the utilities. Each utility is responsible for assuring that their actual SO2 emissions do not exceed their allowances.[72]
Once a utility obtains its allowances, it chooses the means by which it will comply. Some utilities may choose to install pollution control, some may change the fuel source, and others may employ an alternate means of compliance.[73] In any event, each utility has the flexibility to determine its own compliance method. To certify that facilities comply with their allowances, each unit must install continuous emission monitoring systems (CEM) and report its emissions on a quarterly basis.[74]
Over-compliance with less cost?
In practice, results from 1995 show that due to incentives in the program, utilities have overcomplied by emitting 40 percent less SO2 than the program‘s emission cap allows. They achieved these reductions at about one-half the cost they would have incurred through a more conventional approach.[75] Plus, there has been virtually 100 percent compliance in its first year with little enforcement action, and proponents assert that the program has fostered significant innovation, reduced litigation, and required only a very small regulatory staff to manage it.[76]
2. Evaluation
a. Advantages and Disadvantages
i. The Benefits of the Cap-and-Trade Program
1. The primary technological advantage is that the cap-and-trade system is "continuous drivers" of "innovation," "improvement," and "investment."[77]
The cap-and-trade system accomplishes this by establishing a market for those methods and "technologies that achieve emissions reductions at a cost lower than the market price for credits."[78] For example, by authorizing facilities to sell surplus emission permits, the market allows them to "capture the gains of successful research and development" and provides them a "profit-making opportunity" to achieve emissions reductions below their allotment.[79]
About innovation, following passage of this program, the rail industry implemented a number of innovations and improvements to meet increased demand for low-sulfur western coal. These include double and triple tracking, increasing size of car fleets, using new and more powerful locomotives, improving car design, and developing coal tipping technology that increase car dump speed. There has also been a dramatic increase in investment in rail infrastructure resulting from the robust competition in rail transport.[80] Innovation has taken place in the use of existing plant and equipment as well. Blending technology has been found to reduce the originally supposed detrimental effects of using low-sulfur coal. Also, the scrubber technology has been improved.[81]
2. The scheme provides an economically efficient form of environmental regulation for industry, government, and society.
First, this system is efficient for industries because it minimizes the overall transaction costs of compliance.[82] Second, this system is also efficient for the government because it provides only one standard to enforce. And, because the trading establishes actual market prices for environmental goals, policymakers are more informed regarding the cost of their decisions and thus they can give less consideration to the "wildly disparate claims that are a staple of today's environmental debates."[83]
Third, this system is efficient for society because it sets a single standard, and the cap-and-trade eliminates the grandfathering of old, dirty facilities because every unit, old and new, must comply with its allowances. [84] Having a direct cost to pollution may simplify the complexity between the goals of legislation, environmental protection, and the actual legislative requirements, the cost of achieving those goals. Therefore, by understanding legislation, society can make more informed decisions regarding its support for pollution control.[85]
ii. The Drawbacks of the Cap-and-Trade Program
1. Preference to Existing Sources
Because the allowances are allocated to existing sources freely, this will result in an unfair competition between new and existing sources, and will even prevent new sources from accessing the market.[86]
Further, according to the behavioral theory, companies that hold pollution rights are likely to overvalue them and be reluctant to part with them. As a result, a market-based approach may actually lead to an over-all inefficient scheme because the allocated right will tend to stay with the initial holder longer than is optimal.[87]
2. Costly and Infeasible
An emission cap and allowance trading program requires a strict monitoring system--continuous emission monitors (CEM) which is the requisite for the success of the system. However, this requirement is costly and unfeasible.[88]
Moreover, because in all trading programs the prices actually paid for pollution are secret, so there is no way to test the proposition that the trading reduces control costs.[89] Further, most studies focus exclusively on compliance costs, ignoring implementation and monitoring costs. In fact, the costs of instituting pure market-based incentives for pollution control (without any elements of administrative commands or controls) can be prohibitively high, despite their theoretical efficiency advantages.[90] Therefore, this system is truly a complicated and expensive structure and the market must be big enough for its successful operation.[91]
3. The Political Issues
Existing Polluters (including organized labor) may all favor a command-and-control regulation that serves to favor or disfavor certain pollution sources because strategic lobbying can provide competitive advantages that tradable permits may obviate. And, the CAC frequently imposes more stringent requirements on new sources.[92]
Environmental groups have also objected to the permit trading, arguing that such permits represent a "license to pollute".[93] Additionally, environmental groups can easily require agencies to enact certain regulations controlling emission sources through the process of the CAC, and they can use citizen suit to oversee the implementation of environmental law under the traditional CAC.[94] In short, because they can even legally lobby policy-maker, existing polluter will prefer the traditional approach.
Legislators may similarly be wary of uncertain outcomes resulting from market-based systems, finding command-and-control regulatory approaches more familiar to their legal training.[95]
Agency Personnel is also more familiar with the CAC. And, the trading program does not need the same kinds of technical expertise and will imply a scaled-down role for the agency by shifting decision making from the agency to private sector.[96]
For the public, the trading undercuts the health-based underpinnings of the Clean Air Act and seriously impedes the ability of the public to determine how much pollution is emitted and what threats are posed to the men, women and children who live not only near but distant from sources. In sum, the public lose the opportunity to participate the process in the market system.[97]
4. Ethical Issues
According to economic theory the “hot spot” will most likely occur in “low-income communities",[98] this system may beget environmental injustices. Furthermore, opponents also assert that the trading is to take lives to save money.[99]
b. Is the system really efficient and effective to truly achieve its goal of emissions reduction and really an incentive for innovation?
Saving from “Cap”, not “Trade”
What creates the “saving” is not trading, but the “cap”.[100] Trading allowance is from “Cap” that Congress or the EPA set for limiting pollution emission. Hence, the trading has to be consistent with limitation of “cap” and the trading cannot achieve the saving by itself.
Examples in practice
There is some evidence that the Acid Rain program is ineffective and inefficient. For example, Germany reduced power plant emissions by 90 percent within 6 years. But the U.S. will have reduced emissions by about one-third over a 30-year period. Leaded gas phaseout in the U.S. took 23 years but 3 years in China. Also, leaded gasoline was eliminated in the U.S. only by Congressional ban, not through the trading.[101]
Innovation?
In the Acid Rain program, polluters actually are burning lower sulfur coal rather than adopting new technologies or renewable forms of energy or conservation. This means that the trading program has not stimulated any innovation that has led to the development of environmentally superior technologies like “integrated gasification-combined cycle”, and “wind turbines”.[102]
Over-compliance or worsening in the future!
Furthermore, because the electric power industry's "over compliance" at the beginning of phase I resulted in the banking of over nine million allowances by 2002, some utility companies are now using the bank to comply with the more stringent phase II requirements. The use of banked allowances to comply these requirements retards the "achievement of an annual emission reduction target", even worsens the air quality, and permits some power plants to continue to legally pollute the air without taking adequate short-term steps to alleviate the problem.[103]
In sum, because pollution permits can be "banked" (saved for the future), emissions in the future may be greater than the number of permits made available in the future.
As demonstrated above, in practice and in theory, command-and-control mechanisms have reduced air pollution, and they have done so (for the most part) efficiently. Moreover, market-based solutions are not well-suited for all institutional and technological contexts, particularly where monitoring costs are exorbitant.[104] In this circumstance, command-and-control regulations may be both more effective and more efficient.
IV. HOW MIGHT U.S. IDEAS BE INCLUDED INTO TAIWAN’S LEGAL SYSTEM
The experience of U.S. in implementing the NSR program provides good lessons for Taiwan. The U.S. system not only offers a practical legal structure that can help Taiwan establish a positive system of controlling air pollution but also presents some failures that Taiwan needs to avoid.
A. Establishing the NSR in Taiwan
1. An effective and coherent environmental policy
First of all, an effective and coherent environmental policy is needed.[105] Pursuant to the Basic Environmental Act, even though there is a conflict between economic and industrial development that has a serious impact on the environment and pollution control, we shall prefer the protection of environment.
2. Detailed and complete regulations
The regulation should be made more detailed and complete. It should design different standards for different areas.[106] The detailed and complete regulation can offer the agency good guidance for enforcement and can offer the people more information and opportunities for participating in its implementation. Further, this will help the Judicial Review to make a good adjudication.[107]
3. Public participation, Transparent process, and Citizen Enforcement
Finally, traditional requirements of administrative law included into the NSR, such as public participation, transparent process, and accountability through citizen suits through the judicial system, which is called citizen enforcement,[108] also contribute to the whole environmental regime because all of these can help people to claim their right and interest and push government to fulfill its obligation. Hence, making sure that these administrative requirements can be achieved is also required for setting Taiwan’s own the “NSR” program.
B. Assuring the CAT Is Practicable
If government still wants to adopt the new program of the CAT, here are my suggestions:
1. Assuring Every Prerequisites is Achieved: monitoring technology, accurate and aboundant information, and integral and stable market
The most important factor to achieve the efficient and effective implementation of and compliance with the CAT and to truly achieve its goal is to consider the many prerequisites needed for the successful operation of this system. As discussed supra, the monitoring technology, accurate and abundant data and information, and a big enough trading market[109] all are crucial for enacting the trading program in Taiwan. Although the economic theory strongly supports the trading program, these prerequisites might be costly and infeasible.
2. Avoiding the CAT Drawbacks
Governmental control
Theoretically, the government can not interfere with the competitiveness of the industry and put different burdens on every new and existing source that may constitute unfair treatment. However, by adopting the CAT program, this means that the government will lose its control on the “free market”, which might cause a serious negative impact, rather than greater success, on environment.
In short, in the CAT regime you might maintain current status of environmental quality, that will still be highly polluted, and it will be hard to improve it because there is no incentive to facilities to make further progress.
Public Participation
Public participation is a basic requirement for making administrative decisions. However, in the trading program it will be difficult for people to participate in the process of market operation. There will be no instrument to protect the public interest. Especially after deregulation, the government leaves the market running alone.
In sum, as we see, first, the costs of the CAT are not less than the costs of the NSR. The costs include losing governmental control and the public participation, and imposing huge burden on industries to install expensive monitoring equipments. Second, the CAT is not a better approach to achieve fairness and innovation than the NSR. Third, the technology-based standard is simpler and easier to enforce, really the same as the U.S. Congress’ belief.
Therefore, in order to assure that the CAT can be practicable, the Taiwanese government must remember the failed experiences from the U.S. Further, this system has to offer the opportunity to the public to participate, at least in the enactment of the standards that would regulate those allowances.
V. Conclusion
The lesson for Taiwan
The Taiwanese legal culture is much less adversarial and more cooperative than the U.S. legal culture, which might cause the trading program to work out easily. But this does not mean that Taiwan is ready to implement the trading program. As discussed above, the most important requirement for achieving successful regulation is that the policy shall be fair and easily implemented and the current trading program still seems unqualified.
Additionally, the abatement cost in Taiwan is relative high because Taiwan has depended on industrialization without considering environmental protection for a long time, which has been causing a pollution overload in the environment. Also, the monitoring cost is still quite high. Therefore, because of the high costs of abatement and monitoring, and because the techniques for monitoring and inspecting air pollutants (quantity and concentration) are currently under development,[110] the agency should seriously consider the effect of emission on environmental damages when making decisions, rather than solely focus on the economic development.
Moreover, because the Taiwanese government usually thinks of the environmental policy as only a part of economic policy, especially after the dramatic economic progress in the 80s and 90s, and the subsequent serious deterioration of the environment, if the trading program is in effect, the government might worsen his control on protection and people can not make any claim to the market.
This thesis does not negate the possible usefulness of the trading program. I would rather say that the purpose of this paper hopes to induce Taiwan to seriously consider the possible and practical problems of the trading program because this program is not the only way to achieve balancing environmental protection and economic development.
The lesson for countries in the Asia Pacific
As presented in the very beginning, “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”.[111]
In addition to advancing awareness on and knowledge of environmental protection to the public, the most useful and direct way to protect the environment from air pollution is to regulate those pollution sources and control their emissions. The basic measures are the command-and-control approach and the economic incentive system. Both have their own advantages and disadvantages.
The flexible market-based program is expected to be a model for pollution control efforts in the United States and other countries. According to EPA’s report, using Economic Incentives to control air pollution is successful in U.S. Even in international level, many countries, and many international agreements (e.g., the Kyoto Protocol), would like to adopt U.S. experience to control and resolve their own air pollution.[112]
However, because every country has its own unique legal and political culture, the command-and-control standards will be easier to enforce and implement. Contrarily, the trading program does not fit every different situation in Asia countries, and its requisites are complicated, expensive, and infeasible.
In sum, expanding that concept of market-based approach to nations lacking the rule of law and firm property right, and with little environmental experience, is inviting chaos.[113] Therefore, Taiwan’s experience, requiring the fair and easily implemented policy, and adopting the technology-based command-and-control approach, including instituting independent regulation and enforcement with capacity and skills, and assuring more reliable compliance, monitoring and implementation, will be a good lesson for those countries in the Asia Pacific.
Hence, government should be cautious when taking its next step in order to achieve double wins of economic and environmental sustainable development.
甚者，這樣的問題不只是影響我們這一世代，更是影響到我們的下一代。因此，在眾多規範手段中，要又如何選擇出真的有效率、可以有效兼顧經濟及環保的需要，便是一項關鍵性的要素。
除了提升民眾的環保意識、深化環保教育，最有效、也是最直接達到環境保護的目的，仍是在於直接規範污染源之污染排放。而基本的規範手段包括有傳統的命令與控制，以及新興的經濟誘因制度。這兩個基本制度皆為美國清潔空氣法所採用。其中又以市場導向的規範方式為其他國家--包括台灣、以及國際條約所爭相效仿學習的對象。 本篇論文主要的目的在於探討美國的經驗，並參酌了台灣本身所具備的法律文化特性，提出相關思考，來幫助台灣可以更有效、完善地控制空氣污染。特別是台灣正面對下一階段之環保規範措施--以市場為導向--實施之際，相關制度的優缺點討論，以及實證經驗上的探討，應是當務之急。
I. INTRODUCTION
A. Purpose of the Thesis
As a consequence of economic and industrial development, environmental problems, particularly air pollution, are getting more serious today. Learning how to promote the development of the economy and industry, while preventing the deterioration of the quality of the air in the globalized society, is a huge challenge in front of us. “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”.[1]
Moreover, both developed countries like United States and developing countries like Taiwan face the predicament of balancing the two interests of economic development and environmental protection. Environmental problems not only affect our generation, but also remain a threat to the future generation.[2] Therefore, selecting a truly effective and workable approach to harmonize out the economic and environmental needs is a crucial issue.
The main purpose of this paper is to analyze U.S. experience in dealing with air pollution control and use that knowledge to devise a better air pollution control system in Taiwan, especially as Taiwan is standing the crossroad for considering next step to protect the environment.
Also, as a developing country toward the developed country, the studying from Taiwan’s experience will be a good lesson for the countries in the Asia Pacific.
B. Regulating Measures--the NSR and the CAT
Basically, there are two approaches to control pollution. One is the traditional way, the command-and-control approach (CAC); the other is the relatively new Economic Incentive System (EIS), where market-based mechanisms are used to manage the emissions of pollutants. In fact, these are two different types of regulation of sources of pollution. According the Coase theorem, using economic regulation offers an alternative to traditional "command and control" schemes and makes the legal culture reconsider the political nature.[3] Market-based regulation does not focus on how the permitted levels of emissions should be done externally to the market, but on how they are allocated among polluters. Both are employed in the Clean Air Act (CAA) of the U.S.
C. Context
I will discuss air pollution control in Taiwan, including the background of economic and politics development, and Taiwan’s environmental policy and law. Also, I will present the dilemma Taiwan is encountering in environmental protection.
Further, I will summarize the current situation of the U.S.’s environmental law. I will evaluate advantages and disadvantages of each different approach to control air pollution, and discuss what kind of issues each approach is facing. Moreover, I will propose an optimal legal model to coordinate these approaches.
Finally, I will try to present how the U.S. ideas might be included into Taiwan’s legal system, based on Taiwan’s own legal culture, which will advance the air pollution control in Taiwan.
II. AIR POLLUTION CONTROL IN TAIWAN
A. Framework of Environmental Law and Policy
1. The Background
a. The Geographical and Physical Situation
As a small island, the high density of the population and factory causes heavy environmental loading.
Compared with the population and vehicle densities of other countries, these densities are about 1.8 times those of Japan, 2.6 times those of Germany and the UK, and 22 times those of the US. In addition, the factory density ranged 2.4 to 69.5 times, and the amount of the consumed energy per square kilometer was about 1.7 to 10.2 times that of the mentioned countries.[4] With the heavy environmental loading, the air quality improvement tasks to attain the same air quality level as that of the advanced countries is getting harder to pursue.
b. The Development of Economics and Politics
Also, because of rapid industrialization, the environment is getting serious deterioration today.
Rapid industrialization during the latter half of the twentieth century resulted in large amounts of unmanaged industrial pollution in Taiwan. The contemporaneous increase in per capita income and domestic consumption resulted in dramatic increases in air pollution.
In Taiwan, environmental policy (mainly pollution abatement) has commonly been regarded as a part of the nation's economic policy, and therefore has been greatly influenced by economic development needs.[5]
On the other hand, Taiwan has undergone a tremendous transition toward democracy in the last two decades. On July 15, 1987 the "martial law," imposed since 1949, was lifted. As Taiwan is approaching developed-nation status, the Taiwanese people are demanding a higher quality of life commensurate with Taiwan's elevated level of economic development. Also the people have more opportunities to claim and demand and even participate in implementing the environmental protection efforts.
As Taiwan moved from governance by martial law to a representative democracy, the central government increased efforts to incorporate effective pollution regulation across industry sectors, first in response to domestic demand, and later in response to international pressure.[6] In its determination to make the island green again without losing economic stability, the Taiwanese government started thinking about how to balance and harmonize these two conflicting interests.
2. Trend of Environmental Law and Policy
a. Tenth Amendment of Constitution and the Basic Environmental Act
The 1999 constitutional revision added a provision entitled Section 2, Article 10 of the Additional Articles of the Constitution, providing that "[e]nvironmental and ecological protection shall be given equal consideration with economic and technological development."[7] Although whether the Tenth Amendment of the Taiwanese Constitution effectively promotes environmental protection remains to be proved, it at least presents a national goal as a superior guidance to direct the government, including the legislative, administrative, and judicial branches.
The Basic Environmental Act, as a fundamental environmental protection law, was passed in November 2002. According to article III：
“[e]conomic, technological and social development shall equally emphasize environmental protection based on long-term national interests. However, in the event that economic, technological or social development has a seriously negative impact on the environment or there is concern of endangering the environment, the protection of the environment shall prevail.”
Not only amending the constitutional law but also enacting the fundamental environmental law, these laws give environmental protection precedence over economic development when the two come into conflict.[8]
These advances may help to mitigate the general lack of coordination among development departments and environmental protection departments at the central level, as well as a general disconnect between central economic planning and local environmental realities.[9]
b. The Influence of International Environmental Law
Because of its ambiguous international political status as a developing country that needs assistance from other developed countries, Taiwan has to comply with various obligations from several international agreements and treaties although Taiwan is not a member of those international institutions.
Taiwan does not want to find itself behind the current global standards in pollution enforcement because this would prevent it from participating in international organizations such as the World Trade Organization.[10] Hence, due to this practical and significant influence, Taiwan makes efforts to reflect those international treaties and agreements in domestic law and policies.
B. The Air Pollution Control Law
The Air Pollution Control Act (APCA) was passed in 1975. These statutes were fairly unsophisticated and depended on the Bureau of Environmental Protection, precursor to TEPA, and then on the weak TEPA, formed in 1987, to create and enforce effluent limits, which it often failed to do.[11] However, through the political development and constitutional reform and a series environmental movements,[12] the people and government realized the importance of environmental protection and then started paying attention and making a lot of efforts to achieve the goal of environmental protection.
The measures of implementing environmental policy include the command-and-control approach, the economic incentives or market-based instruments, and the so-called social tools such as offering information, communication, and education.[13] When facing the dilemma of economic development and environmental protection, the TEPA would like to establish diverse regulatory systems to achieve environmental protection.
Basically, Taiwan also adopts two basic approaches to regulate and control air pollution. As a traditional approach of command-and-control, Taiwan has established a substantive and integral legal system. But for the market-based system, the Cap-and-Trade program which was enacted in 1992, because it is very complicated and there are many prerequisites for its operation, this approach is still on the preparing stage today.
1. The Command-and-Control (CAC) Approach
The TEPA continues primarily on the command-and-control regulatory approach. Basically, administrative controls of the APCA legal structure are essentially classified into three categories: (1) ever- increasing emission standards for both stationary and mobile sources, (2) clean fuel criteria, and (3) monitoring and inspection systems.[14]
The CAC approach embraces enacting the standards of environmental quality and emissions, issuing the emissions allowance, inspection and monitoring, and the adequate punishment.[15] These measures include administrative regulation, rule, order, guidance, plan, and inspecting and monitoring.
Currently, the TEPA focuses on establishing the air quality monitoring networks of the entire country of Taiwan. The TEPA conducts environmental monitoring so that the information of the ambient environmental quality can be accessible to the general public. The air quality in each area in Taiwan is under the surveillance of the network of air quality monitoring stations.[16]
2. A New Approach--Economic Incentive System (EIS)
To meet the public demand for a better air quality and balance the needs of development and protection, the TEPA has initiated an economic incentive plan to supplement the current administrative controls. The economic incentive policy was adopted in the Air Pollution Control Act Amendment in 1992, which is called the CAT program. The Air Pollution Control Act employs the trading permit (§ 24), offset and banking (§§ 8, 9, 12), bubble (§ 27) and uses the principle of polluter pay to levy pollution fee and found the Air Pollution Control Fund (§§ 16, 18, 19).
However, the TEPA is still struggling to set the proper total limitations, which is a political question, and relative and detailed regulations that include how to enforce the permit system, offset, bank, and trading methods.[17]
In order to successfully enforce this new approach, the TEPA also sets the Cap-and-Trade Strategies as the policy guidance for the agency to develop and enact regulations. In the CAP Strategies of the CAT, the TEPA is to establish the air quality standards and the air quality monitoring station network, classify the air quality areas and promulgate the CAP areas, stipulate and implement the CAP plan and the air pollution control plan, classify the air quality areas into the attainment and nonattainment areas, proceed with emission reduction in the nonattainment areas, and promote the economic-incentive emission banking, offsetting, and trading regulations.[18]
However, many critics doubt this program can be successfully enforced because this system is very complicated and there are many prerequisites for its operation.
The Cap-and-Trade program which Taiwan copies from the U.S. legal system and experience is still on the initial stage.[19] Therefore, this is a good time to rethink and re-evaluate whether Taiwan should enforce it and how to work it out in Taiwan by using the research discussed infra.
C. Conclusion- The Dilemma Taiwan Confronts
The Air Pollution Control Act was first promulgated in 1975 and the last revision was passed in 2006. As a result, the air pollution problems in Taiwan have been gradually improved after the implementation of the Act for more than 20 years.[20]
Following the development of economics and politics and increased public awareness about environmental issues, the government is trying to implement some other new approach to balance the need of each aspect. Taiwan's shift from adopting only command-and-control regulation to a multi-faceted approach--including market incentives, industry group self-regulation, management-based approaches, voluntary disclosure schemes, and audit requirements designed to increase transparency and accountability of industry and regulators--reflects a progression of pollution laws similar to those in countries that industrialized ahead of Taiwan.[21]
In light of these different incentive policies, Taiwan needs to adopt its own policy to fit its unique culture. As discussed supra, Taiwan hopes the competitive ability of economic development can be maintained without deteriorating environmental protection. However, as many scholars do, the Taiwanese government seems to put too much weight on the trading program.
Is the trading program really efficient and effective? Can the trading program really achieve the goal of balancing development and protection? Is Taiwan ready to implement this complicated and expensive legal system? Does the trading program conform to Taiwan’s legal and political culture? And the big challenge for Taiwan will be how to decide the target total emission limitation. The Cap-and-Trade program itself cannot give us the answer to that question. We need to keep all of these questions in mind.
III. AMERICAN’S EXPERIENCE
The federal Air Pollution Prevention and Control Act commonly known as the Clean Air Act (CAA), is a confusing statutory scheme that resulted from a multitude of enactments dating back to 1955. Significant amendments were made in 1970, 1977, and 1990. Today’s CAA is the outcome of hard-fought legislative battles and compromises over the types of pollution control strategies to adopt and the degree of regulation to impose upon sources emitting air pollution, from automobiles to manufacturing facilities.[22]
The attempt to balance these different and sometimes conflicting goals has led to a complicated regulatory system with an uncertain and changing balance among environmental protection, economic growth, and energy needs. In order to address this diversity, the Clean Air Act seeks to protect air quality through a system of health-based standards and technology-based standards.[23] The Clean Air Act has been described as "one of the most complicated statutes yet produced by a modern industrial state."[24]
A. Overview of the NSR
1. The New Source Review (NSR)
The primary purpose of CAA is to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare.”[25] To achieve this goal, Congress delegated to the EPA the authority to promulgate the National Ambient Air Quality Standards (NAAQS).[26] The EPA listed pollutants that are found in the ambient air from sources and “cause or continue to air pollution which may reasonably be anticipated to endanger public health or welfare.”[27]
Then, the EPA developed two standards for each of these listed pollutants. The primary standard must be at a level that "protects the public health" while "allowing an adequate margin of safety."[28] The secondary standard must be at a level "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air."[29]
The EPA has identified SO2, NOx, particulate matter (PM), carbon monoxide (CO), lead, and ozone as criteria pollutants that may reasonably be found to endanger public health or welfare.[30] Also, the structure of the CAA mandates that each state should set up a State Implementation Plan (SIP) that specifies the manner and means by which the state would achieve and maintain NAQQS.[31]
The 1970 Amendments required the EPA to set emission standards--the New Source Performance Standards (NSPS)--for new or modified stationary sources that emit the pollutants identified under the NAAQS.[32] The NSPS complements the NAAQS system and represents Congress’ effort to require steady improvement of air quality over time as new sources came into operation. Congress expected that air quality would improve as old sources were replaced by sources subject to the NSPS.[33]
In 1977, Congress added Part C of subchapter Ⅰ, “Prevention of Significant Deterioration of Air Quality”, and Part D, “Plan Requirements for Nonattainment Areas.”[34] These two sections divide the country’s air resources into two categories, attainment areas and nonattainment areas, and contain the primary requirements of the NSR program.[35] In other words, the NSR is comprised of two programs: (1) the nonattainment program, aimed at major stationary sources in nonattainment areas, and (2) the PSD program, aimed at major stationary sources in attainment areas.[36] An attainment area is "any area that meets the national primary or secondary ambient air quality standard for the pollutant."[37] A nonattainment area is "any area that does not meet the national primary or secondary ambient air quality standard for the pollutant."[38]
a. The Goal and Legislature Intent of the NSR
Congress enacted the NSR with the belief that new and existing major sources of air pollution should utilize modern pollution control equipment; therefore, Congress thought it would be easier, cheaper, and more efficient to install the equipment during the construction of a new major source or modification of an existing major source.[39]
Moreover, Congress believed that the "grandfathered" power plants would eventually need to be upgraded, which would trigger the NSR or cause the owners or operators of the older plants to retire them from service.
In other words, major sources in attainment areas are subject to the visibility program within the PSD review.[40] And, in the nonattainment area the NSR requires new and modified major stationary sources to obtain permits prior to construction or modification.[41] Further, in order to obtain a preconstruction permit, the facility must prove to the agency that it would not cause a violation of the NAAQS or any applicable the PSD regulations or regulations of the nonattainment program in compliance with the NAAQS.[42]
According to Michael Settineri’s analysis on these Parts, their legislative history, and subsequent case law, the amendments have three primary goals: (1) to assure that attainment areas will not be downgraded to nonattainment areas; (2) to achieve the NAAQS in nonattainment areas; and (3) to "allow for continued economic growth in both attainment and nonattainment areas."[43] Therefore, to reach these goals, Parts C and D place numerous requirements on "major"[44] stationary sources.[45]
b. Technology-Based Standards
In its attempt to balance the development of economics, energy needs, and environmental protection, the CAA seeks to protect air quality by using a system of health-based standards and technology-based standards.[46]
Section 111 also requires EPA to set the maximum emission rate for any air pollutant that each listed category of new or modified stationary sources could release.[47] The emission standards for each category are based on "the best system of emission reduction considering cost, energy, and any non-air quality impacts on health or the environment which . . . has been adequately demonstrated."[48]
In sum, the source proposing the construction must demonstrate that it is equipped with qualified instruments and that the benefit of the proposed source significantly outweighs the environmental and social costs imposed as a result of its location, construction, or modification.[49]
c. Pre-construction process and the trigger threshold
The NSR is implemented by requiring a source to obtain a permit prior to construction or major modification. The permit establishes and requires various actions that the sources must undertake to control their emissions of air pollutants. However, the NSR only applies when the construction project will emit air pollution that exceeds threshold levels established in the NSR regulations.
For a new source, the NSR is triggered only when the potential emissions qualify as major. For an existing major source making a modification, the NSR is only triggered when the modification will result in a significant net increase in emissions.[50]
2. Criticism of the NSR-- Evaluation-Advantages and Disadvantages
a. The Benefits of the NSR
1. Fairness--same standards
Because the NSR requires similar sources in the same area to install the same technology meeting the same standards, it can offer fairness to the regulated community.[51]
2. Feasibility and Innovation--technical requirement and driver
Proponents also believe that the NSR achieves the highest feasible environmental protection available because it requires all new or modified facilities to install at least the minimum required equipment.[52] Furthermore, the NSR also expedites the restoration of air quality in nonattainment areas by requiring the strict standard for new and modified sources.
Also, the NSR supporters claim that the program drives industry to develop new, environmentally sound technologies. As a technology-based standard, supporters aver that the NSR entices companies to strive to innovate new technologies and to integrate control technology from one type of facility to another.[53] The proponents maintain that if companies do develop feasible technologies, then other programs would require implementation of those technologies across the industry.[54]
b. The Drawbacks of the NSR
The attempt to balance those conflicting interests of environmental protection and economic and energy needs has resulted in a highly complicated regulatory regime that is often criticized as burdensome, complex, time-consuming, costly, and inflexible.[55] And it is not surprising that industries have an incentive to avoid triggering the NSR by taking advantage of the loopholes in the NSR program.[56] Recent commentators have been very critical of the New Source Review program's ability to achieve its general goals.[57]
1. Some argue that the NSR is unfair because it applies different standards for the same pollutant to different industries.[58] Because states often determine BACT "on a case-by-case basis, taking into account . . . other costs," even the same type of facilities may be subject to different standards for the same pollutant.[59]
2. These standards do not provide actual incentives, economic or otherwise, for industry to develop technologies that reduce emissions below that standard.[60] Because there are large cost of advancement increases associated with modernization, facilities do not have the incentive to update and improve units.[61]
3. Also, industries do not capitalize on the opportunities to develop technologies because of the uncertainty that accompanies them. If an industry develops a new technology that is economically feasible in one state, it may not be feasible in another because the states independently choose what "other costs" to take into account. This broad discretion produces uncertainty, which in turn eliminates the incentive for industry to develop new technology.[62]
4. The NSR imposes excessive costs and burdens "on sources, administrative agencies, and society."[63] The NSR "is not cost-effective because it normally requires all industries to comply with the same pollution limits even though one industry may be able to reduce its pollution more cheaply than another."[64]
Furthermore, critics argue that complying with the NSR is more expensive and time-consuming than other means of regulation.[65] The determination of whether a facility is subject to the NSR is costly. For example, the actual-to-projected-actual test for modification can require extensive monitoring and reporting.[66]
B. Overview of the Cap-and-Trade Program
Before the 1990 Amendments, the CAA relied mainly on the traditional command-and-control regulatory scheme. However, many critics assert that this system limited utilities’ production options in complying with emission caps, thereby causing that those polluters could not meet these requirements in a cost-effective way and even decreasing incentives to reduce their emissions.[67]
Therefore, scholars, legislators, and the industry proposed the alternative acid rain control as the 1990 Amendments of the CAA, which even obtained support from environmental groups.
Allowance Trading:
The Acid Rain Program represents a dramatic departure from traditional command-and-control regulatory methods which establish specific, inflexible emissions limitations with which all affected sources must comply. Instead, the Acid Rain Program introduces an allowance trading system that harnesses the incentives of the free market to reduce pollution.[68] Affected utility units were allocated allowances based on their historical fuel consumption and a specific emission rate. Each allowance permits a unit to emit 1 ton of SO2 during or after a specified year. In a given year, one allowance will be retired and cannot be used again.[69]
Allowances may be bought, sold, or banked. Regardless of the number of allowances a source holds, it cannot emit at a level that would violate federal or state limits set under Title I of the CAA to protect public health.
Emissions Monitoring and Reporting:
Each unit must continuously measure and record its emissions (continuous emission monitoring system, CEM). The emissions monitoring and reporting systems are critical to the program.[70] Therefore, the accurate information from CEM and feasibility of the monitoring technology will be prerequisites for the success of this system.
Excess Emission:
Units must pay a penalty if annual emissions exceed the number of allowance. In addition, violating utilities must offset the excess SO2 emissions with allowance in an amount equivalent to the excess.[71]
1. The Cap-and-Trade program--for sulfur dioxide (SO2)
Setting a cap and getting a trade
The framework used in each phase is a cap-and-trade (emissions trading) system. Under this system the cap is set at the maximum amount of SO2 emissions allowed. And then, Congress allocates the emissions, or allowances, to the utilities. Each utility is responsible for assuring that their actual SO2 emissions do not exceed their allowances.[72]
Once a utility obtains its allowances, it chooses the means by which it will comply. Some utilities may choose to install pollution control, some may change the fuel source, and others may employ an alternate means of compliance.[73] In any event, each utility has the flexibility to determine its own compliance method. To certify that facilities comply with their allowances, each unit must install continuous emission monitoring systems (CEM) and report its emissions on a quarterly basis.[74]
Over-compliance with less cost?
In practice, results from 1995 show that due to incentives in the program, utilities have overcomplied by emitting 40 percent less SO2 than the program‘s emission cap allows. They achieved these reductions at about one-half the cost they would have incurred through a more conventional approach.[75] Plus, there has been virtually 100 percent compliance in its first year with little enforcement action, and proponents assert that the program has fostered significant innovation, reduced litigation, and required only a very small regulatory staff to manage it.[76]
2. Evaluation
a. Advantages and Disadvantages
i. The Benefits of the Cap-and-Trade Program
1. The primary technological advantage is that the cap-and-trade system is "continuous drivers" of "innovation," "improvement," and "investment."[77]
The cap-and-trade system accomplishes this by establishing a market for those methods and "technologies that achieve emissions reductions at a cost lower than the market price for credits."[78] For example, by authorizing facilities to sell surplus emission permits, the market allows them to "capture the gains of successful research and development" and provides them a "profit-making opportunity" to achieve emissions reductions below their allotment.[79]
About innovation, following passage of this program, the rail industry implemented a number of innovations and improvements to meet increased demand for low-sulfur western coal. These include double and triple tracking, increasing size of car fleets, using new and more powerful locomotives, improving car design, and developing coal tipping technology that increase car dump speed. There has also been a dramatic increase in investment in rail infrastructure resulting from the robust competition in rail transport.[80] Innovation has taken place in the use of existing plant and equipment as well. Blending technology has been found to reduce the originally supposed detrimental effects of using low-sulfur coal. Also, the scrubber technology has been improved.[81]
2. The scheme provides an economically efficient form of environmental regulation for industry, government, and society.
First, this system is efficient for industries because it minimizes the overall transaction costs of compliance.[82] Second, this system is also efficient for the government because it provides only one standard to enforce. And, because the trading establishes actual market prices for environmental goals, policymakers are more informed regarding the cost of their decisions and thus they can give less consideration to the "wildly disparate claims that are a staple of today's environmental debates."[83]
Third, this system is efficient for society because it sets a single standard, and the cap-and-trade eliminates the grandfathering of old, dirty facilities because every unit, old and new, must comply with its allowances. [84] Having a direct cost to pollution may simplify the complexity between the goals of legislation, environmental protection, and the actual legislative requirements, the cost of achieving those goals. Therefore, by understanding legislation, society can make more informed decisions regarding its support for pollution control.[85]
ii. The Drawbacks of the Cap-and-Trade Program
1. Preference to Existing Sources
Because the allowances are allocated to existing sources freely, this will result in an unfair competition between new and existing sources, and will even prevent new sources from accessing the market.[86]
Further, according to the behavioral theory, companies that hold pollution rights are likely to overvalue them and be reluctant to part with them. As a result, a market-based approach may actually lead to an over-all inefficient scheme because the allocated right will tend to stay with the initial holder longer than is optimal.[87]
2. Costly and Infeasible
An emission cap and allowance trading program requires a strict monitoring system--continuous emission monitors (CEM) which is the requisite for the success of the system. However, this requirement is costly and unfeasible.[88]
Moreover, because in all trading programs the prices actually paid for pollution are secret, so there is no way to test the proposition that the trading reduces control costs.[89] Further, most studies focus exclusively on compliance costs, ignoring implementation and monitoring costs. In fact, the costs of instituting pure market-based incentives for pollution control (without any elements of administrative commands or controls) can be prohibitively high, despite their theoretical efficiency advantages.[90] Therefore, this system is truly a complicated and expensive structure and the market must be big enough for its successful operation.[91]
3. The Political Issues
Existing Polluters (including organized labor) may all favor a command-and-control regulation that serves to favor or disfavor certain pollution sources because strategic lobbying can provide competitive advantages that tradable permits may obviate. And, the CAC frequently imposes more stringent requirements on new sources.[92]
Environmental groups have also objected to the permit trading, arguing that such permits represent a "license to pollute".[93] Additionally, environmental groups can easily require agencies to enact certain regulations controlling emission sources through the process of the CAC, and they can use citizen suit to oversee the implementation of environmental law under the traditional CAC.[94] In short, because they can even legally lobby policy-maker, existing polluter will prefer the traditional approach.
Legislators may similarly be wary of uncertain outcomes resulting from market-based systems, finding command-and-control regulatory approaches more familiar to their legal training.[95]
Agency Personnel is also more familiar with the CAC. And, the trading program does not need the same kinds of technical expertise and will imply a scaled-down role for the agency by shifting decision making from the agency to private sector.[96]
For the public, the trading undercuts the health-based underpinnings of the Clean Air Act and seriously impedes the ability of the public to determine how much pollution is emitted and what threats are posed to the men, women and children who live not only near but distant from sources. In sum, the public lose the opportunity to participate the process in the market system.[97]
4. Ethical Issues
According to economic theory the “hot spot” will most likely occur in “low-income communities",[98] this system may beget environmental injustices. Furthermore, opponents also assert that the trading is to take lives to save money.[99]
b. Is the system really efficient and effective to truly achieve its goal of emissions reduction and really an incentive for innovation?
Saving from “Cap”, not “Trade”
What creates the “saving” is not trading, but the “cap”.[100] Trading allowance is from “Cap” that Congress or the EPA set for limiting pollution emission. Hence, the trading has to be consistent with limitation of “cap” and the trading cannot achieve the saving by itself.
Examples in practice
There is some evidence that the Acid Rain program is ineffective and inefficient. For example, Germany reduced power plant emissions by 90 percent within 6 years. But the U.S. will have reduced emissions by about one-third over a 30-year period. Leaded gas phaseout in the U.S. took 23 years but 3 years in China. Also, leaded gasoline was eliminated in the U.S. only by Congressional ban, not through the trading.[101]
Innovation?
In the Acid Rain program, polluters actually are burning lower sulfur coal rather than adopting new technologies or renewable forms of energy or conservation. This means that the trading program has not stimulated any innovation that has led to the development of environmentally superior technologies like “integrated gasification-combined cycle”, and “wind turbines”.[102]
Over-compliance or worsening in the future!
Furthermore, because the electric power industry's "over compliance" at the beginning of phase I resulted in the banking of over nine million allowances by 2002, some utility companies are now using the bank to comply with the more stringent phase II requirements. The use of banked allowances to comply these requirements retards the "achievement of an annual emission reduction target", even worsens the air quality, and permits some power plants to continue to legally pollute the air without taking adequate short-term steps to alleviate the problem.[103]
In sum, because pollution permits can be "banked" (saved for the future), emissions in the future may be greater than the number of permits made available in the future.
As demonstrated above, in practice and in theory, command-and-control mechanisms have reduced air pollution, and they have done so (for the most part) efficiently. Moreover, market-based solutions are not well-suited for all institutional and technological contexts, particularly where monitoring costs are exorbitant.[104] In this circumstance, command-and-control regulations may be both more effective and more efficient.
IV. HOW MIGHT U.S. IDEAS BE INCLUDED INTO TAIWAN’S LEGAL SYSTEM
The experience of U.S. in implementing the NSR program provides good lessons for Taiwan. The U.S. system not only offers a practical legal structure that can help Taiwan establish a positive system of controlling air pollution but also presents some failures that Taiwan needs to avoid.
A. Establishing the NSR in Taiwan
1. An effective and coherent environmental policy
First of all, an effective and coherent environmental policy is needed.[105] Pursuant to the Basic Environmental Act, even though there is a conflict between economic and industrial development that has a serious impact on the environment and pollution control, we shall prefer the protection of environment.
2. Detailed and complete regulations
The regulation should be made more detailed and complete. It should design different standards for different areas.[106] The detailed and complete regulation can offer the agency good guidance for enforcement and can offer the people more information and opportunities for participating in its implementation. Further, this will help the Judicial Review to make a good adjudication.[107]
3. Public participation, Transparent process, and Citizen Enforcement
Finally, traditional requirements of administrative law included into the NSR, such as public participation, transparent process, and accountability through citizen suits through the judicial system, which is called citizen enforcement,[108] also contribute to the whole environmental regime because all of these can help people to claim their right and interest and push government to fulfill its obligation. Hence, making sure that these administrative requirements can be achieved is also required for setting Taiwan’s own the “NSR” program.
B. Assuring the CAT Is Practicable
If government still wants to adopt the new program of the CAT, here are my suggestions:
1. Assuring Every Prerequisites is Achieved: monitoring technology, accurate and aboundant information, and integral and stable market
The most important factor to achieve the efficient and effective implementation of and compliance with the CAT and to truly achieve its goal is to consider the many prerequisites needed for the successful operation of this system. As discussed supra, the monitoring technology, accurate and abundant data and information, and a big enough trading market[109] all are crucial for enacting the trading program in Taiwan. Although the economic theory strongly supports the trading program, these prerequisites might be costly and infeasible.
2. Avoiding the CAT Drawbacks
Governmental control
Theoretically, the government can not interfere with the competitiveness of the industry and put different burdens on every new and existing source that may constitute unfair treatment. However, by adopting the CAT program, this means that the government will lose its control on the “free market”, which might cause a serious negative impact, rather than greater success, on environment.
In short, in the CAT regime you might maintain current status of environmental quality, that will still be highly polluted, and it will be hard to improve it because there is no incentive to facilities to make further progress.
Public Participation
Public participation is a basic requirement for making administrative decisions. However, in the trading program it will be difficult for people to participate in the process of market operation. There will be no instrument to protect the public interest. Especially after deregulation, the government leaves the market running alone.
In sum, as we see, first, the costs of the CAT are not less than the costs of the NSR. The costs include losing governmental control and the public participation, and imposing huge burden on industries to install expensive monitoring equipments. Second, the CAT is not a better approach to achieve fairness and innovation than the NSR. Third, the technology-based standard is simpler and easier to enforce, really the same as the U.S. Congress’ belief.
Therefore, in order to assure that the CAT can be practicable, the Taiwanese government must remember the failed experiences from the U.S. Further, this system has to offer the opportunity to the public to participate, at least in the enactment of the standards that would regulate those allowances.
V. Conclusion
The lesson for Taiwan
The Taiwanese legal culture is much less adversarial and more cooperative than the U.S. legal culture, which might cause the trading program to work out easily. But this does not mean that Taiwan is ready to implement the trading program. As discussed above, the most important requirement for achieving successful regulation is that the policy shall be fair and easily implemented and the current trading program still seems unqualified.
Additionally, the abatement cost in Taiwan is relative high because Taiwan has depended on industrialization without considering environmental protection for a long time, which has been causing a pollution overload in the environment. Also, the monitoring cost is still quite high. Therefore, because of the high costs of abatement and monitoring, and because the techniques for monitoring and inspecting air pollutants (quantity and concentration) are currently under development,[110] the agency should seriously consider the effect of emission on environmental damages when making decisions, rather than solely focus on the economic development.
Moreover, because the Taiwanese government usually thinks of the environmental policy as only a part of economic policy, especially after the dramatic economic progress in the 80s and 90s, and the subsequent serious deterioration of the environment, if the trading program is in effect, the government might worsen his control on protection and people can not make any claim to the market.
This thesis does not negate the possible usefulness of the trading program. I would rather say that the purpose of this paper hopes to induce Taiwan to seriously consider the possible and practical problems of the trading program because this program is not the only way to achieve balancing environmental protection and economic development.
The lesson for countries in the Asia Pacific
As presented in the very beginning, “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”.[111]
In addition to advancing awareness on and knowledge of environmental protection to the public, the most useful and direct way to protect the environment from air pollution is to regulate those pollution sources and control their emissions. The basic measures are the command-and-control approach and the economic incentive system. Both have their own advantages and disadvantages.
The flexible market-based program is expected to be a model for pollution control efforts in the United States and other countries. According to EPA’s report, using Economic Incentives to control air pollution is successful in U.S. Even in international level, many countries, and many international agreements (e.g., the Kyoto Protocol), would like to adopt U.S. experience to control and resolve their own air pollution.[112]
However, because every country has its own unique legal and political culture, the command-and-control standards will be easier to enforce and implement. Contrarily, the trading program does not fit every different situation in Asia countries, and its requisites are complicated, expensive, and infeasible.
In sum, expanding that concept of market-based approach to nations lacking the rule of law and firm property right, and with little environmental experience, is inviting chaos.[113] Therefore, Taiwan’s experience, requiring the fair and easily implemented policy, and adopting the technology-based command-and-control approach, including instituting independent regulation and enforcement with capacity and skills, and assuring more reliable compliance, monitoring and implementation, will be a good lesson for those countries in the Asia Pacific.
Hence, government should be cautious when taking its next step in order to achieve double wins of economic and environmental sustainable development.
申請獎學金之研究計劃範例
教育部九十六年留學獎學金研究計畫
壹、 乙類
學群別：留美法律
研究計畫名稱：
英文題目: From the Dilemma to the Optimistic Future of Our Food Quality
Protection
中文題目: 食物品質維護之規範--從困境到未來之展望
貳、 計畫摘要:
農藥(pesticide)可稱之為”經濟毒藥”(economic poisons)。也就是說，其雖是具有毒害性，卻也是必要的。人類利用各式各樣的化學物質來保護自己及農作物遠離自然生物的危害，已有百年歷史。美國聯邦政府立法規範農藥之使用始自1947年聯邦除蟲、殺菌暨殺鼠劑法(the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA)之訂定。此外，聯邦食品、藥物暨化妝品法(the Federal Food, Drug, and Cosmetic Act, FFDCA)進一步禁止販賣參雜有農藥殘留物的食品或藥物。此一法案授予健康及人的服務部(the Secretary of Health and Human Services)管理規範的權限，並與聯邦食品及藥物管理局(the Food and Drug Administration, FDA)，擔當起維護全美食物供給安全的角色。
結合了FIFRA及FFDCA，農藥的販賣及散佈必須先辦理註冊。針對未經加工食品上之農藥殘留量以及加工食品上之非致癌農藥的殘留量，其可容忍之評估係依據「無害的合理具體性」之標準(reasonable certainty of no harm)，其間並包括有風險利益分析(risk-benefit analysis)以作為最後決定的參考。此外，於加工食品上會導致有致癌可能性之農藥殘留時，依FIFRA則其無法取得註冊之可能。再者，FFDCA針對有致癌可能性的農藥，所採的容忍標準係”零風險”(zero-risk)，此一標準又稱為Delaney條款(制訂於1958年之食品添加物修正案--the Food Additives Amendment)。
Delaney條款係針對食品添加物所做的規範(包括了農藥殘留的問題)。法院透過案例解釋此一法條，認為基於其零風險的要求，此規定係完全禁止有致癌可能的食品添加物。
然而，所謂的”Delaney矛盾”於是產生。亦即FFDCA針對未經加工和已經加工食品之農藥殘留做區分，並採取不同的規範。這樣會造成某些食品適用可容許風險標準--輕微風險非風險(de minimis)，而某些食品則須適用零風險標準。如此的區別以及針對某些食品所做的絕對的禁止受到很大的爭議。
隨著科學角色在決策制定上的改變，國會於1996年制定了食物品質保護法(the Food Quality Protection Act, FQPA)。這一新的法律徹底地改變過去FIFRA及FFDCA針對安全議題所採的規範方式。基本上，本法採用了單一標準，即「在農藥化學殘留物合計的暴露量下，能合理並具體地得出無害可能」之標準。換句話說，此法允許有致癌可能性的農藥被使用，只要能符合其所設定出的容忍標準，即必需低於百萬分之一的終身致癌率。再者，其亦許可使用風險利益分析來決定所可接受的風險程度。不過，本法固然提供行政機關相當大的彈性以供其專業行政，但仍衍生出許多值得討論的問題。
為了面對及處理農藥--經濟毒藥--所產生的困境，並期望能提供我們食物供給之保護一個樂觀的未來，觀察FQPA這十年來的發展及執行情形，不單具有學術上的重要性，更是攸關我們全體社會的永續發展。本文所要觀察的包括: 美國環保署所制定的相關法令規範、法律執行是否如同當初支持者所期望抑或是如同當初批評者所預期、成本效益分析在其中所扮演的角色、法院所採的態度以及市場理論是否可適用於此。期冀能藉由這樣的觀察提出相關的法律爭議，並得出可能、積極的解決模式，以處理這些包括科學的、政策的以及經濟的爭議，進而提升現在暨未來的生活。
最後，本篇論文希望針對食物供給的保護及發展，能提供台灣參考，甚而完善台灣整體環境保護的規範體系。
叁、 研究計畫
研究緣起:
對環境法的興趣始自於念研究所時指導教授的啟蒙(在大學時代似乎只以國家考試科目為中心)。研究環境法是來美唸書的原因之一，特別是它是科技行政重要的一環。雖然在某些重大爭議的問題上，例如:全球暖化的議題，美國的態度相對地顯得保守及固執。此外，也有許多批評者認為，美國實際上是全球對環境資源消耗最大的國家。在這些質疑及批評之外，不可否認的，美國環境法制度規範確實是多樣且複雜。其中固然包含了對於工業及經濟發展和環境保護之利益折衝下的結果，但也因此發展出許多新穎、具效率的規範手段，例如:以科技為基礎或是以健康為基礎的環保標準(the technology-based and health-based standards)，以及以市場為導向(market-based)的制度設計。因而不論傳統的命令暨控制(command-and-control)之規範手段，抑或是經濟誘因(economic incentives)的規範方式，美國環境法的制度，因著其豐富的執行成果，都能提供相當充實的比較研究。這樣的經驗且已成為其他許多國家，乃至於國際環境法上所爭相效法的對象，例如京都議定書中所採取的市場交易制度即為一是例。
在指導教授Prof. Applegate以及Prof. Barnes的細心指導下，本人針對號稱最複雜的環境規範--美國清潔空氣法(the Clean Air Act)，做了相當程度的分析暨比較研究，初探了美國環境法的輪廓及其基本精神，完成了本人於美的第一本碩士論文(本篇論文並獲得由美國國會所成立之夏威夷東西文化中心之邀請，於其舉辦的第六屆國際研究生學術研討會中發表)。而今，亦在Prof. Applegate的帶領下，投入另一個值得一探究竟的領域--美國食物品質保護法(the Food Quality Protection Act)。
由於Prof. Applegate係美國關於毒害物質規範研究之專家，其專精於環境風險評估、科技行政以及環境政策分析，其並編著有全美唯一有關毒害物質及有害廢棄物之案例書。本篇論文在其指導下，本人相信應能呈現相當具體的成果。
而這部1996年所訂定的法律，涉及了對於食品之農藥殘留及相關添加物的管制規範，尤其反映了美國行政法對科科技行政的態度。其中包括了對於風險的定義、科學在規範上所扮演的角色、行政機關所應有的裁量空間，其中也包含了風險利益、成本效益的分析，甚至涵蓋了環境正義的議題，例如對小孩、婦女乃至於勞工階級所應有的特別考量。相關議題的討論，不僅是食物品質保護法所欲處理的難題，而更反映出現代行政在規範環境事務上所會面對的困境。
環境法對自然保護、人類福祉的重要性於今日已無須再特別加以強調。其也往往作為對傳統行政法革新的起源。美國環境法自70年代之環保風潮開始，即已蓬勃發展，時至90年代，隨著行政所需面對的生活事務日趨複雜以及科學技術的不斷創新，緣起於30年代的所謂的羅斯福新政，對專業行政的要求，在此時更是一再地被提出來。因此，基於環保、經濟、科學以及政策的多方考量，才有食物品質保護法的制訂，因其重大地改變了舊有的規範方式及規範標準。其賦予行政機關較以往更大的執行空間，藉由風險利益的分析，使得法律的執行更具彈性。然而，不可避免的是，這樣的規範必然造成許多爭議。
在經過十年的執行，現在應是適當的時機去檢視整部法律執行的情況及其發展。並就相關產生的爭議，提出討論。如此的研究不僅是有助於我們對食品供給維護之提升，並能促進環境保護規範手段的有效掌握，以作為未來環保規範的參考依據。
研究目的:
本文的主要目的在於觀察美國食物品質保護法究竟有無以及如何提供我們一個針對食品供給之具積極性及樂觀的前景。鑑於本法根本地改變了之前法律所採的規範方式及標準，因此，在這樣重大的轉變下，其實際的執行暨發展，便是我們應當審慎加以評估的對象。此外，藉由本篇論文之研究，希望能進而提出有效的爭議解決模式。特別是相關問題通常涵蓋了政治、經濟以及環境保護等重大議題。若能因此調和利益間的衝突，產生出一個合理、具效益的規範模式，才能真正為我們提供一個永續發展的願景。因為如此的成果不單是為維護我們這一代的利益，更是兼顧了下一代之隔代正義的要求。
再者，本於比較法之研究，本文亦希望這樣的研究成果能提供台灣在思考環境問題的另一個面向。特別是當國內環保意識逐漸高漲之際，憲法亦於增修條文中明定了環境保護與經濟發展之兼籌並顧條款，因此，誠如之前所說的，這不僅有助於對食品保護規範的提升，更可以促進整個環境保護體系的完善，進而落實憲法以環保立國之基本精神。
研究方法:
關於本篇論文的研究方法，基本上採取了以下簡單的架構: 1. 針對既有的法律規範提出討論；2. 觀察並預測所有可能發生的爭議；3. 提出積極、有效的解決模式以供為來規範之展望。
因此，本文將會專注在現行之美國食物品質保護法之執行現況，並從國會、行政機關以及司法機關等不同角度做觀察。例如：國會制定此一法律，實際上是妥協下的產物，而其中科學扮演的角色是值得關注的(特別是科學對風險、不確定性的認知)。尤其是當國會放棄原本對有致癌可能性之物質所採取的絕對限制，進而允許一定之風險時，如何正當化此一規範方式，應是本法的前提要件。此外，本法的訂定所產生實際上的影響--對於業者、勞工(農人)以及消費者--亦是不能忽略的討論對象。至於行政機關從事的風險評估(risk assessment)、風險管理(risk management)以及風險溝通(risk communication)所應採取的實質暨程序上之要求(這三部份構成了美國現行所採的風險控制體系)，是除了行政裁量空間之探討外，也必須加以重視的。其中包括的議題有:行政機關(美國環保署)頒佈了哪些法規命令、其如何解釋所謂的「無害的合理具體性」之標準、如何處理對嬰幼兒的保護以及成本效益分析在決策中所扮演的角色等。對於司法審查上所做的回應，也是必須深入研究的。像是司法對科學在政策決定中的定位、動物試驗的爭議，以及傳統上司法對行政行為的審查範圍之討論。
針對以上的議題，本文將試圖提出以下的回應，例如:提出有助於風險評估及風險管理之有效性的指導方針，以及如何落實對次要人口(弱勢群體)--嬰幼兒、勞工(農人)--之保護、並提升對大眾健康保障之辦法等(諸如知的權利之確保、公眾參與的提升以及司法審查的落實)。
最後並就本法之優缺點，採用比較分析的方式，對台灣提出建議。期望能將之融入台灣既有的法律架構，並能兼顧台灣特有的文化及法律背景，以期做到法律本土化並真正落實法律建置的目的。
研究期程:
期冀在有效性及具效率性下完成本篇論文，本人將論文寫作概略區分為四大階段。此外，除了參考資料的搜尋外，為了能獲致更完整及更深入的了解，本人並將繼續修讀相關必要之課程，並包括IU SPEA的有關課程(概因S.J.D.課程僅需進行論文寫作，已無上課之要求)。
四大階段之第一部分，在於做出本篇論文之最終架構。透過與指導教授密切之討論，以期整理出最完善的論文主體脈絡，以供後續之論文內容的發展。本階段預期以六個月的時間完成。
第二階段，將主要進行的是論文資料的搜集。例如: 相關立法資訊、案例見解、期刊論文及專書等。並進行研讀消化，進而能再加強論文架構的完整性。本階段預計以六個月的時間完成。
第三，即開始從事論文草稿的寫作。藉由章節項目之發展，依序地呈交指導教授審查及修訂，以其完善前後的論述，做到條理分明、論理一貫。這一階段將以約十二個月的時間完成之。
最終的階段，即在於做論文最後的修改及潤飾，並準備口試之進行。本階段並將尋求教授們的評論及建議，希望能將本篇論文做最好的呈現。預期將以六個月的時間完成之。
針對S.J.D.課程的進行，本人預計以兩年半至三年的時間完成。
計畫之重要性:
針對美國: 如同以上所述，食物品質保護法的制定完全改變過去舊有的規範方式及規範標準。其所採用的標準在於平衡了農藥使用的需要以及食物提供的維護。這固然說明了本法之重要性，但也產生了以上所略述的許多有待解決的爭議。
此外，基於本法所採的以科學為基礎的規範方式，如何妥善運用好的科學以制定好的規範，這不僅是本法所著重的，亦是所有適當、完善的環境規範以及環境政策所追求的。而這也是達成健康及環境保護的必要前提。
針對台灣: 這樣的法律規定，對於台灣來說可能是相對地新穎且細緻。然而相關的爭議對於台灣，現在以及未來都有可能會發生。而這也表示，關於美國食物品質保護法的執行經驗，不論是好的或是壞的、成功的或是失敗的，確實有很多地方值得台灣去學習及借鏡的。再者，從規範的困境到能提供一樂觀的未來，行政機關不能避免地必須去處理經濟發展及環境保護之間的衝突。因此，針對美國如何處理這樣的爭議，以及如何調和政治上、經濟上以及科學上的問題，如此的經驗也值得提供給台灣做參考。甚者，經由如此地比較研究，也有助於真正落實憲法所規定之環境保護與經濟發展之兼籌並顧之精神，以達到國家之永續發展。
自我展望: 本人希望藉由預期的研究成果，能帶給台灣不同的觀念以及新的思維方式。希望讓國人體認到環保的重要。不僅為了自己、也為了下一代能真正做到完善環境的保護。並能使台灣的環保法令不僅能追得上、甚至可以超越美國的制度。
在台灣，傳統上學者對於行政法總論的部份做了相當精深的研究及闡論。但對於行政法各論的部份一直到最近才陸續受到學者的重視。環境法即為一是例。本人希望透過本人不才之研究，將自身之學習經驗以供台灣法學界之用。進而能讓台灣各個法學院都能如同美國法學院般，都會針對環境法設有專門的、一系列的課程，如此才能真正地將環境法予以紮根、使之茁壯。並有機會能教育法學後進，國家考試科目固然重要，但也不能忘記對法律正義之最初也是最終的抱負。
肆、 執行期限內預計完成之工作項目:
期冀在有效性及具效率性下完成本篇論文，本人將論文寫作之執行期限概略區分為四大階段。
四大階段之第一部分，在於做出本篇論文之最終架構。透過與指導教授密切之討論，以期整理出最完善的論文主體脈絡，以供後續之論文內容的發展。本階段預期以六個月的時間完成。
第二階段，預計完成之工作項目係在既有的基礎上(如所附參考文獻)，繼續進行論文資料的搜集，以完備所需之資訊。例如: 相關立法資訊、案例見解、期刊論文及專書等。並進行研讀消化，進而能再加強論文架構的完整性。本階段預計以六個月的時間完成。
第三，開始從事論文草稿的寫作。本階段所預期完成的工作即是整篇論文的完成。希望藉由章節項目依序之發展，陸續地呈交指導教授審查及修訂，以其完善前後的論述，做到條理分明、論理一貫。這一階段將以約十二個月的時間完成之。
最終的階段，即在於做論文最後的修改及潤飾，並準備口試之進行。本階段並將尋求教授們的評論及建議，希望能將本文做最好的呈現。預計將以六個月的時間完成之。
針對本論文之寫作，本人預計以兩年半至三年的時間完成。
本計劃對學術或實務等貢獻:
如前所述，基於本法所採的以科學為基礎的規範方式，如何妥善運用好的科學以制定好的規範，這不僅是本法所著重的，亦是所有適當、完善的環境規範以及環境政策所追求的。而這也是達成健康及環境保護的必要前提。
針對台灣，這樣的法律，相對於台灣既有的規範而言，可能是更為細緻化的展現。然而相關的爭議對於台灣，現在以及未來都有可能會發生。不論是針對學術上的研究或是在實務上如規範的制定乃至於司法所應採取的對應，都是值得我們加以探討及細究的。而這也表示，關於美國食物品質保護法的執行經驗，不論是好的或是壞的、成功的或是失敗的，確實有很多地方能作為台灣學習及借鏡的對象。
簡單地說，從規範的困境到能提供一樂觀的未來，行政機關不能避免地必須去處理經濟發展及環境保護之間的衝突。因此，針對美國如何處理這樣的爭議，以及如何調和政治上、經濟上以及科學上的問題，如此的經驗是值得提供給台灣做參考。甚者，經由如此地比較研究，也有助於落實憲法所規定之環境保護與經濟發展之兼籌並顧之精神，而期望能真正達到國家之永續發展。
壹、 乙類
學群別：留美法律
研究計畫名稱：
英文題目: From the Dilemma to the Optimistic Future of Our Food Quality
Protection
中文題目: 食物品質維護之規範--從困境到未來之展望
貳、 計畫摘要:
農藥(pesticide)可稱之為”經濟毒藥”(economic poisons)。也就是說，其雖是具有毒害性，卻也是必要的。人類利用各式各樣的化學物質來保護自己及農作物遠離自然生物的危害，已有百年歷史。美國聯邦政府立法規範農藥之使用始自1947年聯邦除蟲、殺菌暨殺鼠劑法(the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA)之訂定。此外，聯邦食品、藥物暨化妝品法(the Federal Food, Drug, and Cosmetic Act, FFDCA)進一步禁止販賣參雜有農藥殘留物的食品或藥物。此一法案授予健康及人的服務部(the Secretary of Health and Human Services)管理規範的權限，並與聯邦食品及藥物管理局(the Food and Drug Administration, FDA)，擔當起維護全美食物供給安全的角色。
結合了FIFRA及FFDCA，農藥的販賣及散佈必須先辦理註冊。針對未經加工食品上之農藥殘留量以及加工食品上之非致癌農藥的殘留量，其可容忍之評估係依據「無害的合理具體性」之標準(reasonable certainty of no harm)，其間並包括有風險利益分析(risk-benefit analysis)以作為最後決定的參考。此外，於加工食品上會導致有致癌可能性之農藥殘留時，依FIFRA則其無法取得註冊之可能。再者，FFDCA針對有致癌可能性的農藥，所採的容忍標準係”零風險”(zero-risk)，此一標準又稱為Delaney條款(制訂於1958年之食品添加物修正案--the Food Additives Amendment)。
Delaney條款係針對食品添加物所做的規範(包括了農藥殘留的問題)。法院透過案例解釋此一法條，認為基於其零風險的要求，此規定係完全禁止有致癌可能的食品添加物。
然而，所謂的”Delaney矛盾”於是產生。亦即FFDCA針對未經加工和已經加工食品之農藥殘留做區分，並採取不同的規範。這樣會造成某些食品適用可容許風險標準--輕微風險非風險(de minimis)，而某些食品則須適用零風險標準。如此的區別以及針對某些食品所做的絕對的禁止受到很大的爭議。
隨著科學角色在決策制定上的改變，國會於1996年制定了食物品質保護法(the Food Quality Protection Act, FQPA)。這一新的法律徹底地改變過去FIFRA及FFDCA針對安全議題所採的規範方式。基本上，本法採用了單一標準，即「在農藥化學殘留物合計的暴露量下，能合理並具體地得出無害可能」之標準。換句話說，此法允許有致癌可能性的農藥被使用，只要能符合其所設定出的容忍標準，即必需低於百萬分之一的終身致癌率。再者，其亦許可使用風險利益分析來決定所可接受的風險程度。不過，本法固然提供行政機關相當大的彈性以供其專業行政，但仍衍生出許多值得討論的問題。
為了面對及處理農藥--經濟毒藥--所產生的困境，並期望能提供我們食物供給之保護一個樂觀的未來，觀察FQPA這十年來的發展及執行情形，不單具有學術上的重要性，更是攸關我們全體社會的永續發展。本文所要觀察的包括: 美國環保署所制定的相關法令規範、法律執行是否如同當初支持者所期望抑或是如同當初批評者所預期、成本效益分析在其中所扮演的角色、法院所採的態度以及市場理論是否可適用於此。期冀能藉由這樣的觀察提出相關的法律爭議，並得出可能、積極的解決模式，以處理這些包括科學的、政策的以及經濟的爭議，進而提升現在暨未來的生活。
最後，本篇論文希望針對食物供給的保護及發展，能提供台灣參考，甚而完善台灣整體環境保護的規範體系。
叁、 研究計畫
研究緣起:
對環境法的興趣始自於念研究所時指導教授的啟蒙(在大學時代似乎只以國家考試科目為中心)。研究環境法是來美唸書的原因之一，特別是它是科技行政重要的一環。雖然在某些重大爭議的問題上，例如:全球暖化的議題，美國的態度相對地顯得保守及固執。此外，也有許多批評者認為，美國實際上是全球對環境資源消耗最大的國家。在這些質疑及批評之外，不可否認的，美國環境法制度規範確實是多樣且複雜。其中固然包含了對於工業及經濟發展和環境保護之利益折衝下的結果，但也因此發展出許多新穎、具效率的規範手段，例如:以科技為基礎或是以健康為基礎的環保標準(the technology-based and health-based standards)，以及以市場為導向(market-based)的制度設計。因而不論傳統的命令暨控制(command-and-control)之規範手段，抑或是經濟誘因(economic incentives)的規範方式，美國環境法的制度，因著其豐富的執行成果，都能提供相當充實的比較研究。這樣的經驗且已成為其他許多國家，乃至於國際環境法上所爭相效法的對象，例如京都議定書中所採取的市場交易制度即為一是例。
在指導教授Prof. Applegate以及Prof. Barnes的細心指導下，本人針對號稱最複雜的環境規範--美國清潔空氣法(the Clean Air Act)，做了相當程度的分析暨比較研究，初探了美國環境法的輪廓及其基本精神，完成了本人於美的第一本碩士論文(本篇論文並獲得由美國國會所成立之夏威夷東西文化中心之邀請，於其舉辦的第六屆國際研究生學術研討會中發表)。而今，亦在Prof. Applegate的帶領下，投入另一個值得一探究竟的領域--美國食物品質保護法(the Food Quality Protection Act)。
由於Prof. Applegate係美國關於毒害物質規範研究之專家，其專精於環境風險評估、科技行政以及環境政策分析，其並編著有全美唯一有關毒害物質及有害廢棄物之案例書。本篇論文在其指導下，本人相信應能呈現相當具體的成果。
而這部1996年所訂定的法律，涉及了對於食品之農藥殘留及相關添加物的管制規範，尤其反映了美國行政法對科科技行政的態度。其中包括了對於風險的定義、科學在規範上所扮演的角色、行政機關所應有的裁量空間，其中也包含了風險利益、成本效益的分析，甚至涵蓋了環境正義的議題，例如對小孩、婦女乃至於勞工階級所應有的特別考量。相關議題的討論，不僅是食物品質保護法所欲處理的難題，而更反映出現代行政在規範環境事務上所會面對的困境。
環境法對自然保護、人類福祉的重要性於今日已無須再特別加以強調。其也往往作為對傳統行政法革新的起源。美國環境法自70年代之環保風潮開始，即已蓬勃發展，時至90年代，隨著行政所需面對的生活事務日趨複雜以及科學技術的不斷創新，緣起於30年代的所謂的羅斯福新政，對專業行政的要求，在此時更是一再地被提出來。因此，基於環保、經濟、科學以及政策的多方考量，才有食物品質保護法的制訂，因其重大地改變了舊有的規範方式及規範標準。其賦予行政機關較以往更大的執行空間，藉由風險利益的分析，使得法律的執行更具彈性。然而，不可避免的是，這樣的規範必然造成許多爭議。
在經過十年的執行，現在應是適當的時機去檢視整部法律執行的情況及其發展。並就相關產生的爭議，提出討論。如此的研究不僅是有助於我們對食品供給維護之提升，並能促進環境保護規範手段的有效掌握，以作為未來環保規範的參考依據。
研究目的:
本文的主要目的在於觀察美國食物品質保護法究竟有無以及如何提供我們一個針對食品供給之具積極性及樂觀的前景。鑑於本法根本地改變了之前法律所採的規範方式及標準，因此，在這樣重大的轉變下，其實際的執行暨發展，便是我們應當審慎加以評估的對象。此外，藉由本篇論文之研究，希望能進而提出有效的爭議解決模式。特別是相關問題通常涵蓋了政治、經濟以及環境保護等重大議題。若能因此調和利益間的衝突，產生出一個合理、具效益的規範模式，才能真正為我們提供一個永續發展的願景。因為如此的成果不單是為維護我們這一代的利益，更是兼顧了下一代之隔代正義的要求。
再者，本於比較法之研究，本文亦希望這樣的研究成果能提供台灣在思考環境問題的另一個面向。特別是當國內環保意識逐漸高漲之際，憲法亦於增修條文中明定了環境保護與經濟發展之兼籌並顧條款，因此，誠如之前所說的，這不僅有助於對食品保護規範的提升，更可以促進整個環境保護體系的完善，進而落實憲法以環保立國之基本精神。
研究方法:
關於本篇論文的研究方法，基本上採取了以下簡單的架構: 1. 針對既有的法律規範提出討論；2. 觀察並預測所有可能發生的爭議；3. 提出積極、有效的解決模式以供為來規範之展望。
因此，本文將會專注在現行之美國食物品質保護法之執行現況，並從國會、行政機關以及司法機關等不同角度做觀察。例如：國會制定此一法律，實際上是妥協下的產物，而其中科學扮演的角色是值得關注的(特別是科學對風險、不確定性的認知)。尤其是當國會放棄原本對有致癌可能性之物質所採取的絕對限制，進而允許一定之風險時，如何正當化此一規範方式，應是本法的前提要件。此外，本法的訂定所產生實際上的影響--對於業者、勞工(農人)以及消費者--亦是不能忽略的討論對象。至於行政機關從事的風險評估(risk assessment)、風險管理(risk management)以及風險溝通(risk communication)所應採取的實質暨程序上之要求(這三部份構成了美國現行所採的風險控制體系)，是除了行政裁量空間之探討外，也必須加以重視的。其中包括的議題有:行政機關(美國環保署)頒佈了哪些法規命令、其如何解釋所謂的「無害的合理具體性」之標準、如何處理對嬰幼兒的保護以及成本效益分析在決策中所扮演的角色等。對於司法審查上所做的回應，也是必須深入研究的。像是司法對科學在政策決定中的定位、動物試驗的爭議，以及傳統上司法對行政行為的審查範圍之討論。
針對以上的議題，本文將試圖提出以下的回應，例如:提出有助於風險評估及風險管理之有效性的指導方針，以及如何落實對次要人口(弱勢群體)--嬰幼兒、勞工(農人)--之保護、並提升對大眾健康保障之辦法等(諸如知的權利之確保、公眾參與的提升以及司法審查的落實)。
最後並就本法之優缺點，採用比較分析的方式，對台灣提出建議。期望能將之融入台灣既有的法律架構，並能兼顧台灣特有的文化及法律背景，以期做到法律本土化並真正落實法律建置的目的。
研究期程:
期冀在有效性及具效率性下完成本篇論文，本人將論文寫作概略區分為四大階段。此外，除了參考資料的搜尋外，為了能獲致更完整及更深入的了解，本人並將繼續修讀相關必要之課程，並包括IU SPEA的有關課程(概因S.J.D.課程僅需進行論文寫作，已無上課之要求)。
四大階段之第一部分，在於做出本篇論文之最終架構。透過與指導教授密切之討論，以期整理出最完善的論文主體脈絡，以供後續之論文內容的發展。本階段預期以六個月的時間完成。
第二階段，將主要進行的是論文資料的搜集。例如: 相關立法資訊、案例見解、期刊論文及專書等。並進行研讀消化，進而能再加強論文架構的完整性。本階段預計以六個月的時間完成。
第三，即開始從事論文草稿的寫作。藉由章節項目之發展，依序地呈交指導教授審查及修訂，以其完善前後的論述，做到條理分明、論理一貫。這一階段將以約十二個月的時間完成之。
最終的階段，即在於做論文最後的修改及潤飾，並準備口試之進行。本階段並將尋求教授們的評論及建議，希望能將本篇論文做最好的呈現。預期將以六個月的時間完成之。
針對S.J.D.課程的進行，本人預計以兩年半至三年的時間完成。
計畫之重要性:
針對美國: 如同以上所述，食物品質保護法的制定完全改變過去舊有的規範方式及規範標準。其所採用的標準在於平衡了農藥使用的需要以及食物提供的維護。這固然說明了本法之重要性，但也產生了以上所略述的許多有待解決的爭議。
此外，基於本法所採的以科學為基礎的規範方式，如何妥善運用好的科學以制定好的規範，這不僅是本法所著重的，亦是所有適當、完善的環境規範以及環境政策所追求的。而這也是達成健康及環境保護的必要前提。
針對台灣: 這樣的法律規定，對於台灣來說可能是相對地新穎且細緻。然而相關的爭議對於台灣，現在以及未來都有可能會發生。而這也表示，關於美國食物品質保護法的執行經驗，不論是好的或是壞的、成功的或是失敗的，確實有很多地方值得台灣去學習及借鏡的。再者，從規範的困境到能提供一樂觀的未來，行政機關不能避免地必須去處理經濟發展及環境保護之間的衝突。因此，針對美國如何處理這樣的爭議，以及如何調和政治上、經濟上以及科學上的問題，如此的經驗也值得提供給台灣做參考。甚者，經由如此地比較研究，也有助於真正落實憲法所規定之環境保護與經濟發展之兼籌並顧之精神，以達到國家之永續發展。
自我展望: 本人希望藉由預期的研究成果，能帶給台灣不同的觀念以及新的思維方式。希望讓國人體認到環保的重要。不僅為了自己、也為了下一代能真正做到完善環境的保護。並能使台灣的環保法令不僅能追得上、甚至可以超越美國的制度。
在台灣，傳統上學者對於行政法總論的部份做了相當精深的研究及闡論。但對於行政法各論的部份一直到最近才陸續受到學者的重視。環境法即為一是例。本人希望透過本人不才之研究，將自身之學習經驗以供台灣法學界之用。進而能讓台灣各個法學院都能如同美國法學院般，都會針對環境法設有專門的、一系列的課程，如此才能真正地將環境法予以紮根、使之茁壯。並有機會能教育法學後進，國家考試科目固然重要，但也不能忘記對法律正義之最初也是最終的抱負。
肆、 執行期限內預計完成之工作項目:
期冀在有效性及具效率性下完成本篇論文，本人將論文寫作之執行期限概略區分為四大階段。
四大階段之第一部分，在於做出本篇論文之最終架構。透過與指導教授密切之討論，以期整理出最完善的論文主體脈絡，以供後續之論文內容的發展。本階段預期以六個月的時間完成。
第二階段，預計完成之工作項目係在既有的基礎上(如所附參考文獻)，繼續進行論文資料的搜集，以完備所需之資訊。例如: 相關立法資訊、案例見解、期刊論文及專書等。並進行研讀消化，進而能再加強論文架構的完整性。本階段預計以六個月的時間完成。
第三，開始從事論文草稿的寫作。本階段所預期完成的工作即是整篇論文的完成。希望藉由章節項目依序之發展，陸續地呈交指導教授審查及修訂，以其完善前後的論述，做到條理分明、論理一貫。這一階段將以約十二個月的時間完成之。
最終的階段，即在於做論文最後的修改及潤飾，並準備口試之進行。本階段並將尋求教授們的評論及建議，希望能將本文做最好的呈現。預計將以六個月的時間完成之。
針對本論文之寫作，本人預計以兩年半至三年的時間完成。
本計劃對學術或實務等貢獻:
如前所述，基於本法所採的以科學為基礎的規範方式，如何妥善運用好的科學以制定好的規範，這不僅是本法所著重的，亦是所有適當、完善的環境規範以及環境政策所追求的。而這也是達成健康及環境保護的必要前提。
針對台灣，這樣的法律，相對於台灣既有的規範而言，可能是更為細緻化的展現。然而相關的爭議對於台灣，現在以及未來都有可能會發生。不論是針對學術上的研究或是在實務上如規範的制定乃至於司法所應採取的對應，都是值得我們加以探討及細究的。而這也表示，關於美國食物品質保護法的執行經驗，不論是好的或是壞的、成功的或是失敗的，確實有很多地方能作為台灣學習及借鏡的對象。
簡單地說，從規範的困境到能提供一樂觀的未來，行政機關不能避免地必須去處理經濟發展及環境保護之間的衝突。因此，針對美國如何處理這樣的爭議，以及如何調和政治上、經濟上以及科學上的問題，如此的經驗是值得提供給台灣做參考。甚者，經由如此地比較研究，也有助於落實憲法所規定之環境保護與經濟發展之兼籌並顧之精神，而期望能真正達到國家之永續發展。
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