Minoritarian Bias in Environmental Impact Assessment and the Potential Role  of the Judiciary: The case of EIA practice in Taiwan
Chung-Lin Chen  

Environmental impact assessment (EIA) has been adopted by most countries as an instrument to collect, analyze, and deliberate information regarding the potential effects before taking developmental actions. Because EIA generally involves technological knowledge and scientific uncertainty, it is a common impression that courts lack the capacity to adequately address related issues. Emphasizing on expert governance and public participation instead, mainstream scholarly thoughts tend to argue, or at least accept, that courts should only apply deferential standards when reviewing the EIA decisions of agencies. However, the mainstream thoughts overlook a bad driving force that demands courts to respond. 

This paper argues that judicial governance should play a more active role in counteracting minoritarian bias, which might occur in the administrative processes of EIA. In addressing environmental affairs, political processes tend to skew the decision-making against appropriate environmental consideration. First, developers, pollutants, and resources exploiters generally have disproportionately great influence, because they have concentrated interests at stake and therefore are highly motivated to participate in political processes. Second, the interests of the public are underrepresented in political processes, because there are too few individuals to voice their interests and motivate an effective action. Third, environmental issues generally involve the consideration of long-term interests. Unfortunately, political processes are often short-sighted, because the major concern of our representatives is whether they can win the election coming in a couple of years. These factors combined present a typical case of minoritarian bias. Because the judiciary is much more immune from political influences than agencies, and because judges are in a better position to weigh long-term interests, courts have relative merits in decision-making when confronted with the issues where minoritarian bias likely occurs. 

It is not just a theory that minoritarian bias significantly influences administrative processes of EIA. This paper will show how agencies skew EIA decision-makings in Taiwan. First, agencies generally pass EIAs in the first stage of the process; only very few projects enter the second stage. Because the second stage is the genuine EIA process equipped with scoping, on-site investigation and public participation while the first stage is only a screening process, the overall practice of agencies has largely undermined the spirit of EIA. Second, several EIA cases of highly controversial projects, such as the Central Taiwan Science Park Phase 3 and Phase 4, Beautiful Bay Villa, and Taipei Dome, respectively present that agencies have no intention to sincerely shoulder their legal duties regarding EIA. The courts in Taiwan have not reached a consistent attitude addressing EIA cases. In some cases they strictly review EIA decisions while in others they largely defer to the judgments of agencies. The environmental movement in Taiwan is currently experiencing a milestone development toward utilizing legal actions to pursue environmental justice and sustainability. If the courts blindly follow the mainstream thoughts favoring deferential standards, this development of legal environmental movement may be wrongfully frustrated.                                                                    

Rational Choice in Modern Administrative Law  
Seong Wook Heo

In modern regulatory state, the government has to deal with the so-called 'Risk' issues. We are all surrounded by many different types of Risks like climate change, bird flu, mad cow disease, genetically modified food, nuclear energy, etc., just to name a few.

The reason modern administrative law is under a big challenge in dealing with those Risk issues is that the government has to make policy choice under uncertainty. 

Compared to the traditional role of state-like police administration and social benefit administration, the role of government in Risk administration is much complicated and dynamic.

In this paper, I would like to address the issue of how people and governments in modern administrative state can reach rational choice in dealing with Risk management.

The idea of democracy is based upon the rational choice of each individual participating political process. However, if, for some reason, people cannot fully understand what is going on and what kind of options they have, it would not be easy for them to make rational choices in expressing their political preferences. This would naturally lead to the government’s difficulty in setting appropriate policy measures in modern administrative law.

With the interdisciplinary contribution of psychology, economic, and law, we now know that there are several human behavioral biases that are affecting individuals’ process of rational choice in forming their political preferences.  Availability heuristic, cascading effect, group polarization, hindsight bias, anchoring effect, etc. are major examples of those behavioral biases.

In this paper, I will try to show how those behavioral biases are affecting the process of individuals' political preference formation, explain what should be the main concern of modern administrative law to minimize the adverse effects of people irrationally choosing social preferences, and provide my own view on those topics.                                                                    

Indexing Administrative Law: Well-being survey, the Proportionality Principle and the uncertain quest for regulatory reason
Cheng-Yi Huang

More and more governments and international organizations are zealous in using happiness surveys as a benchmark for policy review. In 2010, British Prime Minister David Cameron announced to spend 2 million pounds in developing a national happiness index. One year later, the OECD launched its Your Better Life Index to measure well-being among member states. In 2012, the Taiwan government also decided to compile its own happiness index. Can the happiness index substitute conventional policymaking tools, like cost-benefit analysis, and become a more “reasonable” basis for regulation? How do we evaluate the impacts of happiness index in the age of regulatory uncertainty? In other words, can the happiness index overcome the monetary metric of cost-benefit analysis and provide a more balanced measurement of economic growth and social progress from the welfarist perspective? What if an administrative decision based on a happiness survey run against the legislature’s decisions? Can it substitute the popular will represented by legislative decisions or a public vote? If not, to what extent can the agency consider the happiness index as its basis of policymaking? Officials may want to use the happiness index to prioritize their regulatory choices. Can this application of happiness index also satisfy the requirements of the proportionality principle, which requires the means shall be proportional to the ends? Does it entail a new challenge for administrative law or is it only another reiteration of what we have already known about administrative discretion? All these puzzles will be explored in this paper. 

Proceduralization without Judicialization: An institutional theory on policy-making procedure reform in China and Hong Kong
Yue Huang

By studying the recent development of policymaking procedure in Hong Kong and China, I developed an interpretive framework explaining the correlation between two widely observed trends of administrative law in transitional states: Proceduralization and Judicialization. Though commonly viewed as two sides of the same coin, the fast growing policymaking procedures in China and Hong Kong do not intensify judicial interventions. In China, the courts are excluded from enforcing participatory procedures; in Hong Kong, however, judges refuse to impose rigorous participatory requirements, even though they have discretions to impose such duties. 

From the perspective of “Principal-agent” model, I argue that the relation between proceduralization and judicialization depends on the types of agency cost as well as the significance of judicial review among competing controlling instruments. In China, agency cost in policymaking is primarily caused by the disobedience of the local governments in implementing the state laws or national policies. Among all instruments that may address these costs, judicial review is less effective and more costly, for the lack of judicial independence undermines the capability of Chinese courts to “fire alarm”. In that case, internal control is more favored than judicial supervisions.

In Hong Kong, however, the main agency cost does not happen between different levels of authorities but instead between the mass public and the executive/legislative branches. The distrust towards the non-democratic institutions makes the judicial branch (not democratic but independent) the only acceptable institution resolving policy debate. However, two factors prevent the courts in Hong Kong from imposing participatory duties on the policymakers: the deference to the policymaking discretion, based on the scrupulous respect to the separation of power; the confidence for existing right-based doctrines as the controlling instruments. 

The paper concludes that the inactive judicial intervention on participatory rights in Hong Kong and China may eventually devastate their efforts to regulate the policymaking power. Even though self-regulated or hieratically supervised procedure may improve the quality and acceptability of the policies, they cannot resist the risk of manipulation; also, right-based review cannot replace the procedural review, for it may even further obscure the vague standards on what a “due policymaking process” is.

Risk Regulation and the Rule of Law
Zining Jin

Risk regulation has become one of the most important governmental functions while risk has been one of the most prominent characteristics of modern society. The precautionary principle has appeared in both national legislations/regulations and international treaties/declarations, showing the rule-makers’ efforts to incorporate risk regulation into the rule of law. However, with decision-making under uncertainty, the practices of risk regulation have become severe challenges to the traditional ideas of the rule of law. “Governance by soft law”, “participatory model of public administration” and risk communication are suggesting some new institutional mechanics that could balance the demands for risk regulation and requirements of the administrative law.

My working paper is divided into five parts. 

I. The Rising of Risk Regulation as a Governmental Function

Adopting the precautionary principle in legislations means that the legislators authorize the agencies to take precautionary measures when there are threats of harm to human health or the environment, even if some cause and effect relationships are not fully established scientifically. Many factors have led to this kind of authorization. Clarifying these factors will show that the rising of risk regulation as a governmental function is inescapable. 

II. Risk Regulation is Challenging the Rule of Law

The practices of risk regulation have brought severe challenges for the traditional ideas of the rule of law. I’ll show these challenges specifically by analyzing three issues: a) the risk regulators’ discretion, which is both necessary and dangerous; b) the risk regulators’ burden of proof, which is highly controversial, sometimes even intractable; (c) the risk regulators’ unavoidable “errors”, which are not necessarily accusable. 

III. The Traditional Mechanisms to Balance the Risk Regulation and the Rule of Law

People sticking to the traditional ideas of rule of law tend to ignore the always changing real world, hence let the practices of risk regulation go as they are beyond the realm of administrative law. In this part, I’ll analyze the traditional mechanisms of administrative law, exploring their potential for balancing the actual needs for risk regulation and the normative requirements of administrative law. 

IV. The Emerging Mechanisms to Balance the Risk Regulation and the Rule of Law

The key lies in developing legal mechanisms to deal with the uncertainty relating to the inherent nature of human activities. In this part, I’ll argue, we could draw a lot from the experiences of “governance by soft law”, “participatory model of public administration”, and risk communication, through trying to answer the following questions: How could “the governance by soft law” pursue both risk regulation and the rule of law? Is the general public (as the layman) able to make any difference in reconciling the rule of law with risk regulation through participating in the public administration? How could risk communication do better than traditional legal mechanisms in dealing with the uncertainties?

The last part is my conclusion.

The Adjudication of Socio-economic Rights using Administrative Judicial Review Principles in Hong Kong
Karen Kong

Recently in Hong Kong, there has been an increasing number of socio-economic rights decisions being the subject matter of judicial review cases. The Hong Kong courts have begun from the original highly deferential approach to socio-economic policies and resource allocation questions to the now more willing approach to evaluate the legality of such decisions. Due to the specific nature and scope of socio-economic rights, which the courts have less experience to deal with compared to the more familiar civil and political rights, both the courts and the litigants have increasingly used the common law administrative judicial review principles, including reasonableness and legitimate expectations, to inform and to complement the constitutional analysis of socio-economic rights. These administrative law principles have, at times, led to an expansive interpretation of positive obligations of the government to ensure socio-economic rights, but there is also a concurrent trend of cases where restrictive and narrow administrative law interpretations have disappointed litigants to their socio-economic rights entitlements. 

This paper will provide a general picture of the linkages between administrative law and socio-economic rights analysis by tracing the court’s recent endeavors to review socio-economic rights decisions, e.g. housing, health, welfare, using administrative judicial review principles. It will compare Hong Kong with other commonwealth cases on the application of administrative law in socio-economic policy decisions and will study the challenges and effectiveness in the protection of socio-economic rights. The author will also look at the broader principles of good governance including fairness, transparency and participation, to propose an administrative law framework for the decision-making involving socio-economic rights.

The Regulatory System of Cyberspace in China: A comparative analysis
Honglei Li

With the rapid development of the Internet, it has become more and more clear that public regulation is indispensable to maintain the order in the digital space and protect stakeholders’ interests. Nevertheless, this does not mean the government is the only regulator. Actually, self-regulation organizations should play a more important role in the digital space than in the real world. One of the key questions for internet regulation is how to establish a regulatory system which combines government regulation and industrial self-regulation effectively. Based on a comparative law study of internet regulation, this article will describe the regulatory system of the Internet in current China, analyzing its defects and suggesting future reforms.

Judiciary In-activism in An Age of Discontent: Chu Yee Wah v Director of Environmental Protection
Jolene Lin

This paper examines Chu Yee Wah v Director of Environmental Protection, the most recent case concerning environmental impact assessment (EIA) to come before the Hong Kong courts. The crux of the case lays in the claimant’s contention that the EIA report was flawed because it did not contain adequate information about the environmental footprint of the proposed project. This paper argues that by adopting an unduly narrow approach towards statutory interpretation and focus on technical issues, the judiciary sidestepped the salient issue of whether the government’s decision advanced the, “protection of the environment,” stated goal of the Environmental Impact Assessment Ordinance. It is clear that the Hong Kong courts still adhere to a strong version of the political question doctrine and this bears significant implications for the role of judicial review in environmental governance. Chu Yee Wah may have had a “signaling effect”, sending a signal to the government that greater accountability and transparency is expected of it, but thus far, the post-Chu Yee Wah climate has been characterized by policy inertia, uncertainty, and even worse, an emerging “litigation-proofing” mentality in the environmental agency. This does not bode well for the future and this paper argues for more open communication and mutual respect between the governed and the government as an important step towards more collaborative governance which is essential for addressing the environmental challenges that Hong Kong faces.

Administrative Law Responding to the Uncertainty of Regulatory Effect
Hee Jung Lee

1. Focusing on Uncertainty in Regulatory Effects 
Government faces various kinds of uncertainty in regulatory decision-making. For example, the “uncertainty” which is dealt with in the discourses on “risk” is often limited to scientific inquiries. But even when a situation guarantees regulation, there are cases where it is uncertain whether or which of the available regulatory tools are effective in achieving the regulatory goals or whether the cost or adverse effect of regulation outweighs the benefit of it. For example, in the cyberworld, national regulation on internet business is usually restricted by the lack of regulatory jurisdiction over foreign business providers. And, in pluralistic society, the result of balancing between the cost-benefit of regulation is often uncertain. This paper focuses on how the government responds to these kinds of uncertainty--the uncertainty of regulatory effect.   

2. Attitude towards Uncertainty Matter.
To make a reasonable decision under uncertainty, decision-makers should do their best to gather available information, analyze them from various perspectives and deliberate, and try to correct responses to the uncertainty. Such a process is vulnerable to hasty public opinions in a democratic society. So the positive attitudes of citizens towards uncertainty in regulatory effects are required for the government to engage in open and reflexive process of regulation. Government shall guide citizens to recognize the uncertainty in a specific issue, endure the instability caused by it, and cooperate to overcome it.

The doctrines of administrative law reflect attitudes towards uncertainty. For example, if the concept of administrative discretion presupposes only intended discretion by legislator rather than all kinds of existing discretion, including unintended ones, it might cause some kind of uncertainty to be excluded from deliberation. Therefore, administrative law doctrines can be reformulated to promote a specific attitude toward uncertainty.     

3. How to make Reasonable Decisions under Uncertainty
Reflexive regulation can be a tool for responding to regulatory uncertainty. Under reflexive regulation, government sets general standards that guide primary actors but simultaneously leave them with a substantial zone of freedom in which to engage in self-regulation. Actors can seek better solutions through deliberation and learning process among them in the zone of freedom. In this context, the legal system operates only as stimuli to actors in other subsystems (economy, organization), “bridging institutions” among the legal sub-system and other sub-systems within which effective deliberation and participatory decision-making can occur and are needed. The two elements for reflexive regulation are “zone of freedom” and “bridging institutions.”                

4. Necessary Changes in Administrative Law and Institutions
What kind of changes are necessary to build “zone of freedom” and “bridging institutions” as conditions for reflexive regulation in existing administrative law doctrines and institutions?  This paper reviews the possibilities and obstacles to such changes through (1) experimental law in local government law, (2) pre-regulation consensus building process among stakeholders and (3) built-in provision of legislative impact review in statute.

Administrative Discretion, Precautionary Principle, and Nuclear Risk Regulation after March 11th, 2011
Mitsuo Matsumoto

East coast of Japan was hit by the earthquake on March 11th, 2011 and the next day, there was a hydrogen explosion at the nuclear power generators in the Fukushima Daiichi Power Plant. What lessons do we have to learn from this disastrous experience? Some argue that since emergency power sources were lost by the tsunami, we have to replace even more emergency power sources. But is this good enough?

It has been presupposed that all individuals are free, thus the establishment of causation between activities and adverse outcomes have been required for government interventions such as regulations, levies, and administrative actions. But even after causations are established, neither the severity nor probability of adverse outcomes is certain. We have to choose either to wait and act after the adverse outcomes are clear or to act before it is clear. 

On the one hand, it has been argued that not only the severity, but also, the probability of adverse outcomes should be closely focused upon due to the risk of trade-offs and opportunity costs to manage residual risks. Severe incidents i.e. explosions in nuclear power generators caused by earthquakes has been (and still are) categorized as a residual risk. 

On the other hand, under the precautionary principle, precautionary interventions are justified before serious and irreversible damage occurs to human health and the environment even if the scientific certainty is lacking on causation, severity and/or probability. But this principle has been criticized that it can undermine individual freedom, especially if applied speculatively and too broadly. 

This paper develops its discussions in two parts: one on conceptual issues of the precautionary principle and the other on nuclear risk regulations. In part one, the paper tries to defend precautionary principle at the conceptual level by giving a clearer definition and by applying it narrowly. In part two, the paper analyzes past nuclear risk regulation jurisprudence, our on-going experience in and after the nuclear accidents, and the upcoming reform. By doing so, the paper focuses on three issues surrounding administrative discretion: the concept of “tolerable residual risks”, scope of review in administrative suit, and preparation and reaction to the accidents. Finally, the paper tries to draw lessons from the discussions above

The Role of Expert Consultation in Risk Regulation: An illustration from drug approval in PRC
Hualin Song

In recent years, several drug safety accidents occurred in the mainland of China. We should introduce the idea of collaborative governance and set up a pharmaceutical regulatory network. Local government has the overall responsibility in pharmaceutical regulation. The pharmaceutical regulatory agencies should be more rational and enhance their regulation capacity. Meanwhile, these agencies need to set up their own risk surveillance network and introduce novel regulatory tools.

However, enterprises should have the chief responsibilities in drug safety. Self -regulation of the industry is necessary for pharmaceutical regulation. Mass media should be more objective and rational in its news reporting. Experts in social science may take part in drug policy agenda-setting, while scientists will play an important role in drug review, drug inspection, etc. With the collaborative governance of pharmaceutical regulation, it will enhance drug efficacy and drug safety and protect the right to health.

Judiciaries as Crucial Actors in Regulatory Systems of the Global South: The  Indian judiciary and telecom regulation (1991-2012)
Arun Kumar Thiruvengadam

Our paper addresses regulatory reforms in the Indian telecommunications sector and emphasizes the role of the Indian judiciary. Our claim is that when confronted with a series of disputes relating to the nascent telecom regulatory landscape, the Supreme Court of India sought to make a constructive contribution to both the actual disputes as well as the overall regulatory framework. Our reading of these cases suggests that in the sphere of telecom, the Supreme Court has been less interested in stamping its own authority on issues, and has instead sought to bolster the authority and legitimacy of the recently constituted telecom regulatory institutions. We seek to draw attention to the role of the Indian judiciary as marking an exceptional feature of evolving regulatory systems in the Global South. Conventional wisdom in the regulatory jurisprudence that has evolved in the Global North suggests that judiciaries should have little or no role to play in regulatory systems. We suggest that to overcome the special challenges that regulatory systems in the Global South confront, more established institutions and actors might have to lend credibility and legitimacy to enable nascent regulatory actors to develop over time. At least in the Indian case, this is one way to understand the Indian judiciary’s interventionist actions in the sphere of telecom regulation

Thai Administrative Procedural Law: Organic pesticides, disappearing birds, and two model countries
Khemthong Tonsakulrungruang