Chapter 5. Environmental justice
Environmental justice can include fair treatment in terms of access to natural resources, environmental services and benefits, and environmental risk exposure (distributive justice), accountability and remediation for environmental harm (corrective justice) and access to environmental information, judicial and administrative proceedings and participation in environmental decision making (procedural justice). This chapter looks at the current generation’s access to water supply and sanitation services and to green space and exposure to air pollution, chemicals and other environmental risks. It then considers measures to ensure future generations’ access to a clean environment and natural resources. The chapter examines progress in the environmental liability framework. It also addresses procedural rights and proposes international frameworks that Korea could use to advance in this area.
1. Introduction
Environmental justice is a flexible, plural concept; its meaning can differ depending on the country or context (OECD, 2000). Fair treatment of current and future citizens in terms of access to natural resources, environmental services and benefits, and in managing potential exposure to environmental risk, is one aspect (distributive justice). Ensuring accountability for environmental harm and effective, adequate and prompt remedies in environmental cases, including compensation for victims and restitution and restoration of the environment, is another (corrective justice). Procedural justice is also relevant: the right of access to environmental information held by public authorities, including on environmental problems; the right to meaningful participation in environmental decision-making processes; and the right of access to judicial and administrative proceedings in environmental matters.
Korea does not yet have a clearly articulated definition or dedicated set of objectives for environmental justice in its laws or policies, and its policy development in the area remains – as in most OECD countries – piecemeal and still at a relatively early stage. Some social aims are set out in framework laws and policy documents relevant to the environment (Table 5.1), but they vary across instruments and in many instances are not underpinned by coherent or comprehensive implementing measures. The main policy objectives on environmental justice appear to be distributive. For example, Article 35(1) of the Constitution provides that all citizens have the right to a healthy and pleasant environment (MOLEG, 2016). The Framework Act on Environmental Policy states (Article 2) that the “fundamental idea” behind the act “is to have current citizens… enjoy environmental benefits and simultaneously to allow future generations [to] inherit similar benefits” (MOLEG, 2016).
Controversy over high-profile development projects, such as the Four Rivers Restoration Project and high-voltage transmission lines in Milang, demonstrates challenges in engaging the Korean public in environmental decision making (Yun, 2014; Chapter 3). Rapid industrialisation, scarce land resources, strong implication of the state in industrial activity, and environmental and land-use deregulation compound pressures. Meaningful public involvement in handling environmental matters can play a major role in preventing or constructively resolving environmental conflicts. Finding ways to build public confidence in the government’s commitment to procedural justice and address tensions over development projects is likely to remain a pressing priority, not least given plans to build 20 coal-fired power plants and seven nuclear reactors (Chapter 1).
A sharp increase in significant pollution incidents over the past decade, particularly in the chemicals sector (KEI, 2014), has highlighted difficulties victims face in holding polluters accountable under traditional liability provisions. A positive measure is the Act on Liability for Environmental Damage and Relief Thereof (Liability and Relief Act), in effect since January 2016. It clarifies polluters’ liability for damage to human life, health and property arising from pollution and requires compensation.
The Ministry of Environment (MOE) intends to prioritise environmental justice matters in environmental and other relevant policies, including as part of efforts to better manage environmental health risks. This chapter aims to support that process, including through experience in other countries.
2. Environmental justice in context: broader equity challenges
Social conditions are relevant from an environmental justice perspective because they can influence environmental policy effectiveness, as well as environmental outcomes in communities and regions, with implications for distributive justice. Environmental conditions and policies, in turn, can compound social inequality if not effectively managed or implemented (Crifo and Laurent, 2013). As social inequality and environmental challenges can be mutually reinforcing, social conditions merit consideration in environmental justice policy development and implementation.
Korean society is essentially homogenous ethnically, with 2% of the population foreign in 2013, up from 0.4% in 2000. Thus the concern for ethnic communities that has driven and largely characterised environmental justice movements in other countries does not resonate in Korea (Box 5.1; OECD, 2000). Still, the country faces challenges in promoting equity among its population (OECD, 2014a).
The notion of environmental justice originated in the United States in the 1980s, triggered by protest in ethnic minority communities and indigenous communities over disproportionate exposure to hazardous and polluting facilities. Studies confirmed that racial minorities faced “some of the worst environmental devastation in the nation”, whether by “conscious design or institutional neglect” (Robert D. Bullard, quoted in EPA, 2016a).
An executive order clarified the government’s position in 1994, two years after an office focused on the issue was established at the Environmental Protection Agency (EPA) (Bell, 2014). Each federal agency was directed to make achieving environmental justice part of its mission by “identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” (NARA, 1994).
While the initial focus was on unequal distribution of pollution, over time EPA has also encompassed procedural elements. Environmental justice is “the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies”. All communities and people should enjoy “the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work”. Meaningful involvement is understood as the opportunity to participate in decisions about activities that might affect an individual’s health or environment, with that participation having the potential to influence decision making. It also means that community concerns are considered in the decision-making process and that decision makers seek out and facilitate involvement of potentially affected stakeholders (EPA, 2016a).
Led by its Office of Environmental Justice, the EPA pursues environmental justice in all of its work, including setting standards, licensing facilities, awarding grants, issuing licences and regulations, and enforcing legislation. A Federal Interagency Working Group on Environmental Justice chaired by the EPA administrator, brings together the heads of 17 agencies monthly to advance environmental justice through collaborative, cross-government action.
The EPA also created a federal advisory committee, the National Environmental Justice Advisory Council, to provide advice and recommendations from stakeholders about cross-cutting issues related to environmental justice. In addition, the council provides a forum for discussions about integrating environmental justice with other EPA priorities and initiatives, as well as with other federal agencies (EPA, 2016a).
Source: Bell (2014), Achieving Environmental Justice: A Cross-national Analysis; EPA (2016a), “Environmental Justice”; NARA (1994), 1994 Executive Orders Disposition Tables.
Korea has had one of the fastest growing economies in the OECD in the past decade (Chapter 1). The benefits of this growth have not been evenly distributed across Korean society (Figure 5.1). Income inequality and relative poverty have declined in recent years, but remain high. In 2014, Korea ranked within the top 15 OECD countries both in the ratio of the 90th income percentile to the 10th and in the rate of relative poverty.1
Labour market dualism is a major contributor to income inequality and relative poverty levels in Korea (OECD, 2016a). Non-regular (e.g. fixed-term or part-time) workers, who are disproportionally female, represent around a third of dependent employment. Those with a lower level of education are particularly hard hit, with an incidence of non-standard work of over 60% (OECD, 2015a). In 2014, non-regular workers earned almost 40% less per hour than regular workers, despite possessing comparable skills (OECD, 2013a). In 2014, the share of workers earning less than two-thirds the median wage stood at 23.7%, placing Korea fourth in the OECD (OECD, 2016b). Wage dispersion is the fourth highest in the OECD (after the United States, Israel and Turkey ), with wages of workers at the 9th decile 4.8 times higher than those in the first, compared to 3.5 times on average in the OECD (OECD, 2016b). The government is pursuing labour market reform to help address exclusion and marginalisation with the aim of increasing the employment rate, which stood at 66% in 2015 (OECD, 2016b). Its 2013 “creative economy” growth strategy aims to support job creation through innovation (Chapter 3).
Korea is facing challenges in gearing its social welfare system to better tackle income inequality and relative poverty, particularly among the elderly (OECD 2014a). Public social spending is under half the OECD average on a GDP basis, at 10.4% in 2014 (OECD, 2016a), and has a weak redistributive impact. Half of Koreans over 65 live in relative poverty, while the OECD average is 12.6%. One-third live in absolute poverty (i.e. on income below the minimum cost of living). This is the highest rate in the OECD and three times the poverty rate for the population as a whole. The figure is of concern, not least because the rate of population ageing is projected to top those of other OECD countries. It also disproportionally affects rural regions, where 17.8% of the population is over 65, compared with 10.9% in predominantly urban regions. The National Pension Scheme reaches only around a third of Koreans over 65 and pays not even a quarter of the average wage. The Basic Pension, introduced in 2014, reaches around 70% of the elderly, but the high rate of coverage means payments are low, at 6.2% of the average wage. The company pension system – still at an early stage – cannot compensate. The government is prioritising increased government spending to support social cohesion, but targeting the lowest-income citizens remains a challenge (OECD 2016a).
Regional disparity also looms large, with Korean regions varying widely on well-being indicators such as access to services, education and health (Figure 5.2).
3. Fair treatment of current citizens
Ensuring that all receive equitable treatment in access to environmental resources, goods and services, and that no segments of society are disproportionally exposed to environmental risk or the potential impact of environmental policy reform, are relevant to ensuring fair treatment of current citizens from an environmental justice perspective (intra-generational justice). Access to, payment for and quality of environmental goods and services vary significantly between regions, between cities and between urban and rural areas in Korea (Table 5.2). Against this background, Korea’s Framework Act on Environmental Policy was amended in 2012 to require the national and local governments to pay due regard to the balanced use of environment-related goods and services among regions, classes and other groups.
3.1. Access to environmental services
Korea’s first environmental justice forum, organised in 1999 by the non-government organisation (NGO) Citizens’ Movement for Environmental Justice, reported unequal access to safe drinking water and sanitation as a major environmental justice issue (Bell, 2014). The 2006 Environmental Performance Review (EPR) of Korea recommended strengthening policies for balanced regional development to address disparity in access to water-related services on the basis of equity, efficiency and financing criteria. Significant government investment has led to an impressive increase in access to water supply and wastewater services, in particular to rural areas, but a rural-urban divide persists (KEI, 2015) (Table 5.2). In 2014, nearly 100% of the population in large cities had access to the national water supply network and 99% had access to the wastewater network, while in rural areas the figures were 71% and 66%, respectively (MOE, 2016a). Nonetheless, rural access has improved considerably in recent years: water service access stood at 47% in 2008 and wastewater service access at 55% in 2010. The government is committed to expanding the national water supply network and the wastewater and sewerage network to reach 80% of the rural population by 2017 and 2025, respectively, with priority to areas that do not meet groundwater quality standards and have poor access to capital (MOE, 2016b; MOE, 2016c).
Small, independent facilities currently bridge the waterworks service gap in rural areas, expanding access but raising quality concerns. When these facilities are taken into account, rural water supply access rises to 92%, and in 2012, 416 075 wastewater facilities were operating outside the public system service zone (MOE, 2015a). However, 4% of small facilities failed water quality tests conducted by the Korean Environment Corporation (KECO) in 2014, and a significant proportion of samples from wells in rural areas not serviced by national service networks fail to meet certain government water quality requirements (e.g. limits on total coliforms and nitrate-nitrogen) (MOE, 2016d). The government considers that most small-scale and village systems need improvement, particularly as 40% were constructed before the 1980s (MOE, 2015a). To tackle the quality gap, the government undertook groundwater quality tests in about 68 000 locations over 2012-15, with local governments overseeing follow-up. It is currently testing around 20 000 additional locations and plans to provide subsidies to rural areas to help improve water supply infrastructure from 2017; details are still being determined (MOE, 2016d). The government has taken quality assurance measures related to sewage treatment by independent facilities as well: for example, since 2007, those over a certain size have had to be built by professional service companies (MOE, 2015a).
As the cost of building pipelines to remote rural areas is high, small, independent facilities may be more cost-effective in some circumstances. According to the Korea Environment Institute, the highest technically feasible level of coverage of wide area/municipal waterworks in rural areas based on conversion of small-scale and village waterworks is around 90% (KEI, 2015), but the cost-effectiveness of attaining this level has not been assessed. To ensure that regional development goals on access to safe drinking water are met as cost-effectively as possible, it would be prudent to assess the costs and benefits of expanding national waterworks beyond certain thresholds and determine when it might be more cost-effective to prioritise alternative measures, such as upgrading the infrastructure of existing independent facilities or making reporting requirements more stringent.
Differences in water supply and sewerage charges and cost recovery rates between regions also play into equity considerations regarding water supply. While there is large variation between regions, rural areas tend to pay higher water supply charges and have lower cost recovery rates (Table 5.2). Although tariff variation is justified when reflecting local conditions and service provision costs, tariffs should also reflect similar efforts to recover costs and to deliver services of similar quality and efficiency. The government keeps water charges low, in part to ensure that water services are accessible to all. However, this benefits users who could afford to spend more, and deprives water service operators of revenue which could be used to extend and improve services to poor and remote communities (OECD, 2012a). Raising water charges to reflect the costs of service provision, combined with targeted support for vulnerable households that is decoupled from water use, would be less regressive and would encourage rational water consumption (Chapter 3).
Across the country, low cost recovery rates threaten the financial sustainability of the water supply and wastewater sectors (Chapter 3). To address this, the government aims to increase the national average cost recovery level for water supply services to 95% (97% in large cities, 95% in other cities and 70% elsewhere) and that of wastewater services to 80% (over 90% in large cities and over 70% elsewhere) by 2025. The government should bear regional equity considerations in mind as it advances efforts in this area. A first step would be to comprehensively assess the distributional implications of actual and proposed cost recovery systems across places and user categories, and the factors driving any pricing discrepancies (e.g. affordability concerns, difficult access to the resource, poor equipment or infrastructure). This would help identify equity concerns and inform measures to address them. Should the government consider cross-subsidisation of water charges appropriate for regional development and equality reasons, similar to its practice of setting abstraction charges at a uniform national rate (MOLIT and K-Water, 2016), it should ensure that financial flows are measured and transparent to enable clear policy discussion.
Access to nature and green space in urban areas is relevant in assessing equity in access to environmental services. Half of all regions in Korea contain less than 9 m2 of green space per person, the World Health Organization (WHO) international standard, and these urban green areas are shrinking by 3.5%, on average, every year (OECD, 2014b), although the fourth Land Master Plan targets 12.5 m2 per person by 2020. Access to green space varies considerably across metropolitan areas (Figure 5.3). In 2014, residents of three metropolitan areas with a population between 500 000 and 1.5 million had access to 9 m2 or less per capita of vegetation, croplands, forest, shrub lands or grasslands, while at the other end of the spectrum, each resident of Pohang (pop. 520 300) had access, on average, to almost 100 m2 of green cover. Interpreting this indicator depends somewhat on whether peri-urban areas are included and how accessible and attractive the green spaces are, but the discrepancy is nevertheless pertinent for urban planning. Measures to ensure that this issue is fully considered can include incorporating green spaces in zoning ordinances for future development or redevelopment areas, classifying green spaces as protected, providing incentives for developers to include green space in projects, increasing the attractiveness of underused green space, and adopting transport options to enhance the accessibility of green spaces outside city limits.
Disadvantaged segments of the population may have less access to green spaces (KEI, 2009). Seoul’s 2015 Basic Plan for Parks and Green Spaces does not appear to consider the issue, for example (Seoul Metropolitan Government, 2015). Urban liveability and revitalisation policies can have a positive impact on both social cohesion and access to green spaces. The Ministry of Land, Infrastructure and Transport has carried out some projects to improve urban environments in designated revitalisation and regeneration areas, including with the aim of increasing accessibility to green spaces.
The national government could provide direction on improving access to green spaces by prioritising information gathering on relevant indicators (e.g. share of population living within a specified distance of urban open spaces, or attractiveness and accessibility of green space, including for vulnerable groups). It could consider initiating programmes to develop more green space, including by providing incentives to municipalities, such as financial assistance programmes that require partnerships with disadvantaged communities in planning, designing and implementing green space projects.
3.2. Managing environmental health risks
Korea ranks below the OECD average on environmental quality and health status well-being indicators, a fact linked to its rapid growth, large manufacturing and industrial sector and dependence on fossil fuels (Chapter 1). The 2006 EPR recommended expanding analysis of environmental health issues (including monitoring, epidemiological studies and economic analysis), especially for industrial complexes and large cities and near contaminated sites; and strengthening management of indoor air quality and occupational health.
The government has undertaken some measures in line with these recommendations. The Korean National Environmental Health Survey, conducted in three year cycles under the Environmental Health Act since 2009, monitors levels of environmental chemicals in a representative sample of residents nationwide. The first two surveys (2009-11 and 2012-14) were limited to people over age 19 while the third (2015-17) is also assessing children aged 3 and up. The survey screens for exposure levels to 21 pollutants. Results of the first and second surveys show high levels of exposure to metals and pesticides, among other substances. Average blood levels of mercury were more than triple the average US and Canadian levels (MOE, 2016a).
The government also conducts community health impact surveys for “vulnerable areas”, including industrial complexes and abandoned metal mines. It has identified 56 industrial complexes for priority assessment based on pollution emission levels and populations affected. It has assessed 3 to 4 small and medium-sized complexes per year since 2011 (16 in all by 2015), and 108 abandoned metal mines since 2013, revealing some instances of elevated levels of pollutants with environmental health implications. The government plans to assess causation between environmental exposure and incidence of disease in infants. It is also pursuing environmental monitoring of schools, nursery facilities and playgrounds to improve the environmental safety of children, and since 2015 has implemented a product labelling system to reduce child exposure to hazardous materials.
Korea’s first environmental justice forum in 1999 noted a tendency to situate polluting facilities in rural regions, highlighting this as an important environmental justice concern (Bell, 2014). An October 2015 “End of Visit Statement” by a United Nations special rapporteur on human rights and hazardous substances and waste reported significant health risks in communities facing encroachment by industrial and power facilities as a result of government deregulation policies; it expressed concern that many affected residents were elderly or disadvantaged socio-economically (UNOHCHR, 2015). The government has not provided anything beyond information on the siting of basic waste disposal facilities in rural areas. There is also a lack of information on the siting of polluting facilities as regards vulnerable households. The potential for disproportionate impact on vulnerable households is not taken into account in site selection. Improved data collection will be important in promoting fair treatment of all residents as development pressures continue. The US EPA’s EJ SCREEN, an environmental justice mapping tool, which brings together environmental and demographic indicators, provides an example of the types of data that may be relevant (EPA, 2016b).
The siting of coal and nuclear power plants and of high voltage power transmission lines has long been a sensitive issue in Korea. As with industrial facilities, these tend to be situated in rural areas, but produce electricity that primarily serves urban areas, meaning that the economic, social and environmental costs and benefits of this infrastructure are unequally distributed (Lee, 2009; Lee and Park, 2015; CMEJ, 2016). The public has not been meaningfully involved in decisions concerning these projects, generating strong opposition (EJA, 2014a, 2014b, 2014c) (Section 6.2). Financial compensation has been used in the past for communities hosting coal plants, and rural communities can now apply to host nuclear waste disposal sites in return for financial support provided to the local government. This approach detracts attention from the associated environmental and health risks of these facilities.
Air pollution poses significant environmental health risk and economic costs in Korea. The estimated cost of the health impact of outdoor air pollution was USD 65 billion in 2013, up 82% from 2005 (OECD, 2016c). The entire population is exposed to annual average outdoor PM2.5 concentrations exceeding the WHO air quality guideline of 10 μg/m3, and regions with high population density are affected more severely (Table 5.2). Despite important progress since 2000, it is estimated that 17% of the population is exposed to levels exceeding 35 μ/m3, which is associated with a 15% higher long-term mortality risk relative to levels at or below 10 μ/m3. Mean PM2.5 exposure in 9 of 17 regions falls into the 25-35 μ/m3 bracket, a level which lowers the risk of premature mortality by around 6% compared to > 35 μ/m3. Mean exposure in the eight other regions are in the bracket below (15-25 μ/m3), which reduces the mortality risk by a further 6% (Table 5.2; Mackie et al., 2016).
Korea did not adopt standards for PM2.5 levels until 2015 (WHO Interim Target 2 level). Local governments can apply tighter standards to account for regional environmental characteristics. The government sees reducing PM2.5 levels as a mid- to long-term policy goal. Over time, the new standards should help manage exposure levels across regions. Effective enforcement across regions will be important to ensure progress is made to the benefit of people in all parts of the country, as will ongoing discussions with neighbouring countries on minimising transboundary air pollution.
The government has strengthened chemical safety in response to a steep increase in significant pollution incidents in the chemical sector over the past decade. The Act on the Registration and Evaluation of Chemicals (Korea REACH, in force since 2015) imposes reporting and registration requirements on chemical manufacturers, importers or sellers, to enable risk assessment, classification and in some instances prohibition by government. A 2015 amendment to the Chemicals Control Act, due to enter into force 2017, expands the number of workplaces required to report to government on types and quantities of chemicals treated, and reduces the reporting cycle from four to two years. Hazard management requirements are also imposed on operators of certain chemical facilities.
3.3. Managing potential distributional effects of environmental policies
A major intra-generational justice concern is ensuring that lower-income households do not bear a disproportionate financial burden from environmental policy implementation, particularly given the levels of income inequality and relative poverty in Korea. The potential labour market impact is also relevant due to the strong link between labour market challenges and inequality in the country.
Korea has taken some measures to try to lessen the impact of environmental charges on households, such as reductions to and exemptions from water charges for low-income households and users aged over 65, distribution of free volume-based waste disposal bags under local ordinance, and targeted energy efficiency initiatives under broader welfare services. Certain measures could be better tailored to address distributional concerns. For example, it is unclear whether the government has assessed the economic, environmental and social impact of its water tariff policy (Section 3.1). Similarly, maintaining electricity prices below production cost, in part to ensure affordability for low-income households (Chapter 3), may in fact hurt the poor by depriving service operators of revenue to improve service quality. Providing a direct support mechanism decoupled from electricity use, as the government has through its introduction of an energy voucher in 2015, is more efficient at achieving both efficiency and equity (Chapter 3; Jung, 2013; Im, 2013).
Like most OECD countries (OECD, 2015b), Korea lacks processes to systematically assess and address the potential distributive impact of environmental policy reform and decision making on households and labour markets. Important issues such as energy welfare and possible effects on the sectoral composition of employment do not appear to have been taken into account when formulating recent major environmental acts such as the Framework Act on Low Carbon, Green Growth. The act “neglects questions of social and intergenerational justice” such as who benefits from and pays for environmental protection (Kim, 2015), which can also represent significant obstacles to reform if not well handled. While the MOE’s 2013 environmental impact assessment (EIA) guidelines require project operators to visit residents and note their views and concerns, operators are not required to take active measures to assess and address any potential distributional impact on socially disadvantaged groups specifically or adjust or cancel plans that are likely to disproportionally affect disadvantaged households. The important role of the EIA process in addressing environment-related distributive impacts in the United States, including for low-income and foreign-born groups, was explicitly identified in Executive Order 12898 (Box 5.1). The government has paid more attention to managing any potential competitiveness impact on industry, offering, for instance, free allocation of Emissions Trading Scheme (ETS) allowances in all three initial ETS stages for energy-intensive, trade-exposed industry.
A 2015 OECD report assessing progress regarding green growth identifies greater emphasis on the social impact of environmental reform as a major future priority across countries (OECD, 2015b). Transitional, targeted compensation programmes that go beyond compensation offered by well-functioning tax and welfare systems may be necessary to address disproportionate effects of reform on vulnerable households. To ensure policy responses are effective, governments first need to understand i) how environmental policy reform can affect households, e.g. the likely impact of energy taxes on energy affordability at household level – a point relevant to Korea given recent discussions on electricity price reform (Chapter 3); ii) under what circumstances reform can have regressive effects; and iii) policy responses, such as social transfers, that could alleviate any negative impact on the poorest households. Understanding barriers to environmental tax reform and how to address them is also important because of the role revenue recycling can play in supporting low-income households. Any aid for vulnerable households should reflect rigorous, evidence-based assessment of disproportionate consequences.
Policies can also help address negative short-term labour market effects of environmental policy by helping to minimise skill bottlenecks, to prevent increases in structural unemployment and to assist workers in moving between contracting and expanding sectors. The transition to a low-carbon, resource-efficient economy is unlikely to provoke significant job reallocations overall, but there can be large shifts in labour demand in certain industries, such as those in the energy sector (OECD, 2012b). It is important to ensure accurate projections of likely structural changes and labour market reactions at country level, along with the potential impact of reform on skill patterns and demand, and on workers with different occupations, skills and income sources. Labour market mobility, skill development policies and training programmes should be responsive to demand. Labour and social policy systems also need to respond flexibly as environmental reform leads to demand for more green skills (OECD, 2015b).
3.4. Judicial precedents taking account of intra-generational equity
Korea’s judiciary appears to play a very limited a role in promoting intra-generational equity on environmental matters. The government was unable to provide examples of authoritative judicial precedent taking into account intra-generational equity considerations.
4. Fair treatment of future citizens
The responsibility to protect and improve the environment for future as well as present generations (inter-generational justice) was recognised at the international level in the 1972 Stockholm Conference and the so-called Brundtland Report in 1987 by the World Commission on Environment and Development (UNWCED, 1987). Korea’s Framework Act on Environmental Policy reflects this responsibility in declaring that the right of future generations to enjoy the same environmental benefits as current ones is a fundamental policy priority (MOLEG, 2016). The third Comprehensive National Environment Plan (2007-15) set out to establish a framework to ensure equity across and within generations, including environmental equity as one of seven strategic priorities.
Inter-generational justice implies an obligation on current generations to limit natural resource use and avoid irreversible environmental harm so the needs and interests of future generations can be met: in short, to pursue sustainable development (Dinah, 2008; Brown Weiss, 2008). The obligation is threefold. First, current generations should take care to “conserve the options” available to future generations by maintaining the diversity of the natural resource base, as an environment characterised by “a robust and flexible heritage” is more likely to promote health and well-being. Second, they should “conserve the quality” of the environment to ensure it remains broadly comparable across generations, taking into account factors like natural resource depletion and pollution, but also those that present the possibility of substitutes and solutions, like knowledge and capital. Third, inter-generational justice implies “conservation of access” – i.e. conservation of natural heritage to ensure equitable access for future generations (Brown Weiss, 1992).
Translating the theory on inter-generational justice into effective policy and integrating longer-term perspectives into public decision making has proved challenging in practice (Schneeberger, 2011), including in Korea.
4.1. Pursuing inter-generational justice through green growth
Since 2009, Korea has framed its efforts to pursue sustainable development through the conceptual lens of green growth, which focuses on fostering innovation, investment and competition to create sources of growth that are consistent with sustainable and resilient ecosystems (OECD, 2011). The country’s strong institutional framework and international engagement on green growth (Chapter 3) demonstrated intent to shift from its resource-intensive industrial growth path to a more sustainable trajectory, with obvious potential benefits for inter-generational justice. However, Korea has not fully translated its green growth leadership and vision into action, and green growth is no longer the top political priority, with the paradigm shifting to “creative economy” (Chapter 3).
Respecting critical environmental thresholds and limits on the use of natural capital to ensure support for human well-being and growth is the essence of both inter-generational justice and green growth. It follows that reinvigorating and extending Korea’s efforts to realise green growth would help protect future generations’ environmental interests. Chapter 3 provides extensive advice on how Korea might enhance the ambition of its green growth policies. Because the implications of environmental harm for future generations vary by pollutant or action, policy action may be more pressing in some areas than others from an inter-generational justice perspective. For example, climate change-inducing greenhouse gas (GHG) emissions are likely to be more detrimental for future generations than more localised, transient air pollutants. The high carbon-intensity of Korea’s economy is relevant in this regard, as is the precedence afforded to development and investment over biodiversity conservation (Chapter 2).
4.2. Targeted policy measures for inter-generational justice
Beyond the basic building block of sound and ambitious environmental policy, more targeted measures can help attune government decision makers and broader economic actors to future generations’ interests. Korea’s fourth Comprehensive National Environment Plan (2016-35) flags the need to develop policies that ensure environmental rights, including across generations, as an unresolved area coming out of the third plan (although the fourth plan does not list advancing environmental equality among its strategic objectives). Further policy development is needed in this area, but some relevant measures are in place. For example, KRW 619 billion (USD 588 million2) was collected from the ecosystem conservation tax over 2006-14 and used to fund ecosystem restoration or other conservation projects (Chapter 3). However, there is opportunity for using EIA information to link the tax to the type of damage and define priority restoration projects (Lee, 2015). In addition, since 1 July 2016 the Liability and Relief Act has obliged businesses posing “significant environmental risk” to purchase adequate environmental liability insurance (Section 5).
Priority measures that form the backbone of green growth policy and should be pursued are: taking an anticipatory approach to national and regional planning to help conserve future generations’ access to a diverse, high quality resource base; pricing pollution to better integrate environmental and social externalities; and pursuing efficient resource use. Other potential measures include (Young, 1999):
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Applying adaptive environmental management: taking a cautious, flexible approach to long-term conditions and risk when assessing or implementing policies or projects, to help conserve the diversity and quality of the resource base in case of uncertainty or error. Examples are determining initial constraints, using monitoring and remediation mechanisms, and providing for periodic reviews and mechanisms to incorporate changes.
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Better reflecting future generations’ environmental rights in policy and project assessment: for example, making better use of EIA and cost-benefit analysis to assess and address environmental risks for future as well as present generations (Box 5.2).
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Hedging against future harm: using offsetting projects and “countervailing policies” if a policy or project is to proceed despite likely or potential environmental impact. For example, if an endangered species’ habitat is to be cleared, developers might have to reclaim an equivalent or greater habitat. If long-term costs are uncertain, requiring project operators to obtain financial instruments such as environmental assurance bonds can help future generations meet any damage and provide incentives to firms to minimise risk.
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Appointing a guardian to represent future generations’ interests: as future generations cannot participate in present-day administrative and judicial decision making with potential impact on their welfare, appointing a representative such as an ombudsman (Box 5.3) to advocate for their interests can help ensure that their voice is considered (Brown Weiss, 2008; Schneeberger, 2011).
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Setting standards: ensuring that environmental risk is kept within acceptable limits.
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Linking markets with sustainability constraints for conditionally renewable resources: ensuring that rights to use resources respect ecologically sustainable limits.
Cost-benefit analysis of policies and projects ought to be used to support public decisions with a potentially significant impact, including in sectors like energy and transport. There is much scope to improve ex ante and ex post assessment of policy proposals and investment projects through more and better use of such analysis (Atkinson and Mourato, 2015). There is also scope to improve the way future generations’ interests are reflected.
Long-term environmental challenges are difficult to assess in cost-benefit analysis because of uncertainty over future economic and environmental developments and because markets “express consumer rather than community values” and do not fully take into account uncertainty (Young, 1999). Appropriate discount rates to take into account future costs and benefits are also perpetually under debate.
Challenges associated with integrating estimates of the marginal value of changes in CO2 emissions in policy appraisals demonstrate potential difficulties in trying to account for costs and benefits in an inter-generational context. Assessing changes in the “social cost of carbon” is one method to estimate the change in worldwide damage caused per additional tonne of CO2 emitted. Discounting – valuing future costs and benefits in relation to current terms – is common in cost-benefit analysis, but is challenging when it comes to climate change because the consequences of current policy stretch far into the future. Debate over whether and how far existing discounting conventions are relevant has been rigorous and there is no widespread agreement on rates. Furthermore, because of the long timescale, the discount rate applied has a dramatic effect on the estimated social cost of carbon (Smith and Braathen, 2015).
Consequently, estimates of the social cost of carbon span a wide range; judgements about treatment of equity and weight to be given to high-damage scenarios of unknown but probably low probability also come into play. The US Interagency Working Group on Social Cost of Carbon recently recommended assessing policy based on four possible values, acknowledging this uncertainty. The estimates could in principle be adopted by other countries to assist in policy appraisal and evaluation. The United Kingdom assesses the value of changes in carbon emissions with reference to legally binding targets for future emissions.
Source: Atkinson and Mourato (2015), “Cost-Benefit Analysis and the Environment”; Smith and Braathen (2015), “Monetary Carbon Values in Policy Appraisal: An Overview of Current Practice and Key Issues”; Young (1999), “The Precautionary Principles as a Key Element of Ecologically Sustainable Development”.
In Hungary, an “ombudsman for future generations” has the task of protecting the constitutional right to a healthy environment, including for future generations. The ombudsman, elected by the parliament, can fulfil that task by:
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challenging national or local legislation in the Constitutional Court, where there is a “strong belief” of violation of the right to a health environment
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intervening in public administrative court cases relevant to environmental protection
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initiating and participating in the investigation of complaints or ex officio investigations conducted under the auspices of the Commissioner for Fundamental Rights, under whom the ombudsman sits
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monitoring legislative and policy proposals to ensure they do not “pose a severe or irreversible threat to the environment or harm the interests of future generations”
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issuing non-binding statements to public authorities.
Source: AJBH (2016), “The role of the Ombudsman”.
4.3. The role of the judiciary
The judiciary can play a role by taking into account inter-generational equity in enforcing and giving effect to environmental law. Korea has no authoritative judicial precedent explicitly taking into account inter-generational equity, but instructive jurisprudence exists in other countries. The landmark Urgenda Foundation case in the Netherlands, which for the first time required a state to take steps against climate change, demonstrates the potentially instrumental role of the judicial system in advancing inter-generational environmental equity (Box 5.4).
On 24 June 2015 the District Court of The Hague handed down its decision in the case brought by the Urgenda Foundation against the Dutch government seeking an order that the government should drastically reduce CO2 emissions to the level determined by scientists to be in line with the international 2 degree goal. The court invoked inter-generational equity considerations in ruling in Urgenda’s favour and ordering the government to take enhanced action to reduce the country’s GHG emissions.
The court took into account the objectives and principles of the UN climate change convention, including the principle that parties are obliged to protect the climate system for the benefit of current and future generations on the basis of equity (Article 3). It held that the principle of equity as set out in the convention meant policy “should not only start from what is most beneficial to the current generation at this moment, but also what this means for future generations, so that future generations are not exclusively and disproportionately burdened with the consequences of climate change”. If current insights demonstrate that on balance it is cheaper to act on climate now, the state “has a serious obligation, arising from due care, towards future generations to act accordingly”. The court held that the possibility of damage for current and future generations of Dutch nationals was “so great and concrete that given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change”. The government has appealed the decision.
A potential obstacle in intergenerational equity cases is that they seek to uphold rights for plaintiffs that by definition are not immediately identifiable. In a case seeking an order for the government to discontinue existing and future timber licence agreements to reduce environmental damage from deforestation, the 1993 Philippine Supreme Court decision in Minors Oposa v. Secretary of the Department of Environment and Natural Resources affirmed standing for the plaintiffs to represent present and future generations. Every generation, the court found, has a “responsibility to the next to preserve … the full enjoyment of a balanced and healthful ecology”. The plaintiffs’ “assertion of their right to a sound environment” was simultaneously the “performance of their obligation to ensure the protection of that right for the generations to come”, and the plaintiffs were therefore able to act on behalf of future generations (Dinah, 2008).
Source: de Rechtspraak (2015), Case number C/09/456689/HA ZA 13-1396 (English translation), Rechtbank Den Haag; Dinah (2008), “Equity”.
5. Environmental liability
Korea’s environmental liability regime has been the focus of recent government measures on environmental justice, as a dramatic increase in the number of chemical accidents (from 13 in 2004 to 70 in 2013)3 created momentum for a comprehensive overhaul of the traditional tort regime.
5.1. Liability for damage to human life, health and property
The Liability and Relief Act, which the National Assembly adopted in December 2014, came into force in January 2016. The act represents a significant step forward for Korea’s environmental remedies framework in clarifying the liability of polluters to compensate for damage to human life, human health and property arising from pollution, and facilitating claims by victims. Under the previous system of fault-based liability, victims of damage from environmental pollution had to pursue compensation claims under general liability provisions in the Civil Act;4 there was no dedicated liability and compensation programme. As in all civil proceedings, the victim had to prove the polluter’s unlawful intent or negligence, the damage, and causation between the two, which entailed substantial time and cost (KEI, 2014).5 Moreover, challenges in getting access to the necessary information made it difficult for victims to prove liability. In cases of large accidents causing extensive damage, the liable parties often lacked the means to compensate victims and pay for environmental remediation, and so declared bankruptcy, leaving victims in the lurch unless government intervened with taxpayers’ money.
The Liability and Relief Act stipulates the legal principle of liability without fault (strict liability) for damage to human life, health and property arising from pollution cases related to defined facilities, and it shifts to business the burden of disproving the causal relationship between its activities and the damage. Strict liability applies to facilities rather than actions; i.e. the facility is regarded as responsible for pollution if the evidence suggests it is highly probable (based on features of its production process, time and place of damage, etc.) that its activity caused it. Liability for environmental damage caused by consumer products (e.g. those containing toxic chemicals) is regulated by the Product Liability Act (2000, last amended in 2013). Victims have the right to obtain access to information on the incident from implicated businesses or from public institutions, aiming to facilitate proof of damage and probability of cause. The act provides that the MOE may assist socially disadvantaged victims bringing claims under the act, in particular by operating a group of lawyers to support litigation. It is too early to assess how well the act has been operating in practice.
If two or more companies are implicated and the principal party at fault cannot be determined, the law stipulates that all businesses involved are jointly and severally responsible6 for compensation even if the exact cause of the damage cannot be specified. The act sets limits on liability depending on what is deemed to be the facility’s level of environmental risk: KRW 200 billion (about USD 177 million) for high risk, KRW 100 billion (about USD 88 million) for medium risk and KRW 50 billion (about USD 44 million7) for low risk. The risk levels are based on multiple criteria of environmental impact (which, however, are not used for targeting inspections or for any other regulatory instrument). The limits do not apply in cases of intention or gross negligence, which provides a strong incentive for businesses to take accident prevention measures.
In addition to the new act, several legal regimes impose tort liability for environmental damage, including oil pollution and environment-related disease. The Compensation for Oil Pollution Damage Guarantee Act (2009) establishes ship owner responsibility for compensating oil pollution victims. Another prominent instrument for compensating pollution victims is the Asbestos Injury Relief System (Box 5.5).
The Korean government and industries that earned profit from the use of asbestos assumed joint responsibility for this environmental health issue with the creation of a programme to compensate ordinary people (as opposed to workplace victims) made ill by asbestos. The Asbestos Injury Relief Act, which came into effect on 1 January 2011, aims to provide fair, prompt relief to victims of asbestos-related disease and their families. Previously, such victims found it hard to obtain compensation due to difficulty in establishing causation.
To be eligible for relief payment, victims or their families must apply to the local government, which requests the MOE agency KECO to verify that the disease was induced by asbestos. Decisions on whether to grant relief, and how much, are made within 90 days, and applicants can review them. Compensation comes primarily from the Asbestos Injury Relief Fund, with local governments providing the remainder.
The money required for the fund is around KRW 15 billion (about USD 13 million)1 per year. At first, local governments and industry contributed to it in equal shares, with industry’s contribution to rise to 70%. Businesses that used or manufactured more than a cumulative total of 10 000 tonnes of asbestos must pay an additional sum. The fund can be used for out-of-pocket medical expenses, a monthly medical treatment allowance and funeral expenses, among other payments. It also covers operating costs for the programme, asbestos damage prevention projects and studies on the health impact of asbestos. Between 2011 and end-March 2016, 2 966 cases were handled and KRW 37.5 billion disbursed.
← 1. Calculated using the 2015 average exchange rate.
Source: KEI (2011), “Asbestos Damage Relief System”.
5.2. Liability for damage to the environment
Korea does not have an overarching liability system for remediation of damage to the environment similar to the one for health and property damage relief. There is administrative liability in cases of environmental violations, whereby local or national government inspectors can order offenders to take corrective actions, where possible, to clean up their pollution releases. However, soil contamination is the only area where the liability regime covering past pollution is well developed (Box 5.6); there is no similar regime for damage to water bodies or ecosystems.
The Soil Environment Conservation Act (1995, last amended in 2015) specifies that if the MOE discovers soil contamination, the local government can investigate and order the responsible party to decontaminate the site; non-compliance entails criminal penalties. This is a strict liability regime: a physical or legal person that owned, occupied or operated a soil-contaminating facility when pollution occurred is deemed responsible unless it can prove it did not cause the contamination. For cases where two or more parties may have been responsible, the law provides for joint and several liability. An entity that acquires a facility that had caused soil contamination can be regarded as a responsible party unless it can prove due diligence, including a soil quality assessment at the time of the acquisition.
Korea has specified 21 substances, including cadmium, copper, arsenic, mercury, oils and organic solvents, as controlled soil contaminants in the Soil Environment Conservation Act. For these substances, Korea also prescribes “soil contamination warning limits” describing the degree of contamination that may undermine human health, property, animal and plant growth, and development; and “soil contamination counterplan limits”, in which contamination exceeds the warning limits, undermining human health and requiring measures to address the contamination.
Source: Park et al. (2012), “Environmental law and practice in South Korea: overview”.
The Soil Environment Conservation Act was inspired by the US Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 1980). At the time of its adoption in 1995 it was a very progressive piece of legislation, envisaging the creation of a remediation fund (similar to the US Superfund) based on revenue from fees on hazardous industrial facilities. However, in 2012 the Constitutional Court exempted landowners who acquired the land prior to the act’s entry into force from liability for clean-up. The remediation fund was also discontinued. The amended act established a Soil Decontamination Advisory Committee which determines the allocation of clean-up responsibilities among multiple parties that are held responsible for the contamination.
The government has put priority on contaminated sites for which no responsible party can be identified, mostly abandoned metal, asbestos and coal mines. By 2015, Korea had identified 2 428 abandoned metal mines, 423 abandoned coal mines and 36 abandoned asbestos mines, most of them developed before the 1940s (MOE, 2015b). By 2015, soil contamination surveys had been completed for 1 489 of the abandoned metal mines; the rest are to be surveyed by 2023 in a joint effort by the MOE and the Ministry of Trade, Industry and Energy.
5.3. Financial instruments to address future environmental risk
Insurance is the main instrument used in Korea to address financial risk from environmental accidents. Two kinds of insurance are available for environmental damage or liability: commercial general liability insurance, under which environmental accidents can be covered as an option; or special insurance for damage to third parties or clean-up costs due to environmental accidents.
Since 1 July 2016, the Liability and Relief Act has required businesses posing significant environmental risk (waste processing facilities, companies handling hazardous chemicals or discharging hazardous air or water pollutants, etc.) to buy adequate Environmental Impairment Liability insurance. The requirement is expected to apply to 17 000 industrial facilities. The law sets mandatory minimum insurance values depending on the general level of risk: KRW 30 billion (about USD 27 million) for high-risk facilities, KRW 10 billion (about USD 9 million) for medium-risk facilities and KRW 5 billion (about USD 4 million8) for low-risk ones. Proof of insurance is a condition for receiving or renewing an environmental permit. This requirement serves as an incentive for businesses to reduce their environmental risk by taking preventive measures and thus lower their insurance premiums.
Insurance companies providing environmental liability insurance should be approved by the MOE. Insurance companies cannot refuse to cover industrial facilities regardless of their level of environmental risk. Facilities whose level of risk is deemed very high are covered by a guarantee programme run by the government-owned Korea Environmental Industry and Technology Institute rather than by insurance companies. These provisions dampen companies’ incentive to reduce their environmental risk, unlike in a system that exists in many OECD member countries where insurers may refuse to cover excessive risky companies (Box 5.7).
Financial responsibility (assurance) rules require potential polluters to demonstrate – before the fact – that they have the financial resources to correct and compensate for any future environmental damage. Financial responsibility instruments provide timely, relatively low-cost public access to compensation. They also ensure that the expected cost of environmental risk appears on a firm’s balance sheet and in its business calculations. As a result, firms and their underwriters have a strong incentive to monitor environmental safety and fulfil their restoration obligations.
Firms can purchase financial security in the form of insurance, bank letters of credit and deposit certificates. Alternatively they can establish trust funds or escrow accounts dedicated to future obligations. Most industrial operators are not proactive in managing their environmental liabilities and leave themselves exposed to environmental risk. Therefore, a system of mandatory financial security – at least for activities that are particularly dangerous for the environment – may be an appropriate solution.
Financial assurance is widely practised in the US: it is required for a variety of commercial operations, including municipal landfills, ships carrying oil or hazardous cargo, hazardous waste treatment facilities, offshore oil and gas installations, underground gas tanks, nuclear power stations and mines. Several EU countries, including the Czech Republic, Spain and Portugal, have followed suit and introduced mandatory financial security for such industrial activities. Lower-risk activities may be exempted on the basis of certain criteria: for example, Spain and the Czech Republic exempt operators with a certified environmental management system.
Importantly, the mandatory environmental insurance regimes in OECD countries are unilateral; that is, rather than require insurance companies to insure individual operators, each operator must buy coverage to be allowed to operate, and insurers may refuse to cover anyone at their own discretion. Environmental insurance policies are tailor-made and site-specific, and not every facility has the characteristics to be insurable.
Most European countries rely on voluntary financial security. For instance, France and Germany decided that compulsory insurance would not make sense in an emerging insurance market with a limited number of insurers, which could result in high premiums. In voluntary systems, insurers and operators negotiate limits on the kinds and size of damage to be covered. The maximum insured amount should be based on an economic assessment reflecting the risk involved and the insurance companies’ financial capacity. Too high an amount would lead to excessive insurance costs for firms. Too low, and the insured enterprises would have to cover the remainder of the damage or, if they cannot, the government would have to pay.
A strict environmental liability regime without any requirement of financial security can lead to increased litigation and transaction costs. However, it is ultimately the enforcement of liability by administrative and judicial means, not a regulatory mandate, that drives demand for environmental liability insurance.
Source: OECD (2012c), Liability for Environmental Damage in Eastern Europe, Caucasus and Central Asia (EECCA): Implementation of Good International Practices; Boyd (2001), Financial Responsibility for Environmental Obligations: Are Bonding and Assurance Rules Fulfilling Their Promise?.
A national reinsurance programme provides for insurance companies to pay a portion of their premium income to the government as a reinsurance premium in order to share the risk between the government and insurance companies for large environmental damage amounts that would exceed compensation liability limits.
Under the Liability and Relief Act, the government manages a pollution indemnification account intended for cases where damage is caused by unknown, non-existent or incompetent offenders or where its size exceeds polluters’ liability limits. Funded primarily by reinsurance premiums and government contributions, this account can be used to make compensation payments to victims9 and reinsurance pay-outs to insurance companies, as well as to cover the cost of investigation into the accident and damage assessment.
Another financial instrument, performance guarantee bonds, is used to ensure post-closure landfill management under the Waste Control Act (2007). Money deposited by landfill operators in a special account is refunded upon verification by the MOE of completion of environmentally safe close-down measures; failing that, the government uses the money to carry out measures instead of the operator. An insurance policy may substitute for the guarantee bond.
6. Environmental democracy: progress on core procedural rights
Korea recognised the procedural rights of access to information, public participation in decision making and access to justice at the international level in Principle 10 of the 1992 Rio Declaration on Environment and Development (UN, 1992). Principle 10 affirms that “environmental issues are best handled with the participation of all concerned citizens”. States agree to provide appropriate access to environmental information held by public authorities, including on hazardous materials and activities in communities; the opportunity to participate in decision-making processes, facilitated and encouraged by information provision; and effective access to judicial and administrative proceedings, including redress and remedy. Principle 10 was reaffirmed at the 2012 UN Conference on Sustainable Development (Rio+20). In addition to promoting social justice aims and helping ensure that community needs are taken into account, public involvement enhances the effectiveness of environmental decision making and implementation, thereby promoting environmental interests for the public good. Involvement of non-state actors can help give legitimacy to laws and policies. Involving the public also promotes “exchanging ’second thoughts’” and “thinking in terms of alternatives”, both important for sound environmental policy (Ebbesson, 2009).
No global legal instrument has been developed to implement the Principle 10 rights, but they have been given legal force for ratifying parties to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (UNECE, 1998), and other regional initiatives have moved forward (Box 5.8). The Aarhus Convention is an instrument of the UN Economic Commission for Europe (ECE), but non-ECE countries that are UN members can accede if parties agree.10 Country evidence gathered for the online Environmental Democracy Index, developed by The Access Initiative and World Resources Institute to track country progress on Principle 10 rights, suggests that these rights enjoy better legal protection in countries that are party to the Aarhus Convention (AI-WRI, 2016).
Latin American and Caribbean countries adopted the Declaration on the Application of Principle 10 in Latin America and the Caribbean at the Rio+20 Conference, agreeing to work towards implementing a regional instrument to ensure full exercise of the rights of access and more concerted, proactive and effective regional action. Countries committed to drafting and implementing a plan of action over 2012-14, supported by the Economic Commission for Latin America and the Caribbean (ECLAC). Following adoption of founding documents (roadmap, plan of action, vision statement, priority action for capacity building and co-operation, content guide), formal negotiations on the regional instrument were launched in November 2014 with the Santiago Decision and establishment of a negotiating committee to have significant participation from the public. The committee is due to complete its functions by December 2016, which may lead to adoption of a binding regional instrument on the rights of access to information, public participation and access to justice in environmental matters. Draft texts of the regional instrument, issued in late 2015, are available on the ECLAC website. As of September 2016, there were 21 signatory countries.
Source: ECLAC (2016), “Principle 10”.
Governments adopted voluntary guidelines to accelerate implementation of Principle 10 at a session of the United Nations Environment Programme (UNEP) Governing Council in 2010 (Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters, or Bali Guidelines) (UNEP, 2010). While not legally binding, the 26 Bali Guidelines are internationally recognised good practice principles intended to help governments interpret and translate Principle 10 into effective and complete national law.
The 2006 EPR recommended that Korea “further strengthen mechanisms for preventing and resolving environmental conflicts”, including “conflicts over new infrastructure and other development projects and over competition for the use of scarce land”. Giving full expression to environmental democracy is a major element. This section uses the Bali Guidelines, supplemented by indicators used in the Environmental Democracy Index, as a benchmark to assess Korea’s progress. As in many other countries (WRI, 2015; UNEP, 2015), Korean measures remain a work in progress. The gaps between them and the guidelines are important, as they point to ways the government might strengthen national measures to better engage the public in environmental decision making, constructively address and resolve conflicts and strengthen environmental outcomes.
6.1. Access to environmental information
Beyond its inherent value as a right, access to information is essential in enabling meaningful public participation in environmental decision making. Bali Guidelines 1-7 (Table 5.3) relate to this right. Guideline 1 sets out the basic right: any natural or legal person should have affordable, effective and timely access to environmental information held by public authorities upon request, without having to prove a legal or other interest. Guideline 2 defines the basic scope of information to be made available and Guideline 3 provides guidance on grounds for refusing information requests. At a minimum, the public should have access to information about environmental quality, environmental impact on health and related factors, information about legislation and policy, and advice about how to obtain information. Grounds on which a request for information can be refused should be clearly defined in law and interpreted narrowly, weighed against the public interest served by disclosure. Guidelines 4-6 set out additional requirements relating to collection, maintenance and dissemination of public information, reflecting the idea that states’ possession of certain information is fundamental to sound environmental management, and that the information must be made accessible in a structured way to enable the public to make effective use of it (UNEP, 2015). Guideline 7 relates to capacity building to facilitate access to information.
In Korea, the public is entitled to access to environmental information under the Official Information Disclosure Act, except in cases where the disclosure “may interfere with government business” or damage the company or organisation in question. Any applicant denied access to information is entitled under the Administrative Procedures Act to an administrative hearing or administrative court action.
Public availably of information on the state of the environment minimises the need for individual requests, so the extent to which the government collects and makes environmental information freely available is a threshold consideration. The MOE provides a range of environmental information to the public, including the annual Environmental Statistics Yearbook and the biennial White Paper. Websites give the public access to information on the general environment, environmental and industrial technology, GHG emissions, air quality and water quality. Korea has operated a pollutant release and transfer register (PRTR) since 1999. Pollution release data by industry sector and by pollutant are publicly available on the PRTR website.
Environmental authorities maintain records on all regulated entities, including permit applications, regular self-monitoring reports and inspection reports. The Government 3.0 initiative, launched in 2013, aims to open up public data and foster its reuse by businesses as well as inside the public administration. As a result, the disclosure rate of environmental information produced or managed by government rose from 24% in 2012 to 55% in 2013 (MOE, 2016a). The MOE intends to disclose 80% of government-held environmental information by 2017 through Korea’s main information portal (www.data.go.kr) or on the MOE website. However, other environmental records concerning private enterprises are not generally open to, or easily accessible by, the public. Although businesses must provide formal justification for non-disclosure of information for commercial confidentiality reasons to a special government commission for approval, many civil society groups feel it is difficult to obtain timely information from private enterprises.
6.2. Public participation
Beyond direct benefit to the public in terms of facilitating its right of engagement and helping ensure that community needs are taken into account, enabling meaningful public participation in environmental decision making brings governments benefits as well. Public participation brings additional resources to bear on environmental management and can help strengthen government policy and decision making through better information and more effective assessment of challenges and needs, helping avoid actions that result in unnecessary impacts to the environment, public health, cultural resources and other socio-economic and quality of life interests of individuals and communities. It “brings the public along”, building trust and enhancing the likelihood of public support for government decisions. Meaningful public participation mechanisms also help avoid and diffuse conflict by providing a clear and constructive avenue for public input.
Bali Guidelines 8-14 (Table 5.4) relate to this point. Guidelines 8-10 deal with the nature and quality of participation. States should seek early and effective public participation in a proactive, transparent and consultative manner, providing adequate information and opportunity for public views to be expressed. The relevant public constitutes those people affected or likely to be affected by or having an interest in a given decision. Environmental NGOs meeting any requirements under national law are deemed to have an interest. Guidelines 12 and 13 extend the scope of decisions to include preparation of laws and policies, and cases where a review process is carried out and previously unconsidered environmentally significant issues or circumstances arise. The state is to ensure that public comments are taken into account and make decisions publicly available (Guideline 11). Guideline 14 deals with capacity building to promote public participation.
The main national-level stakeholder consultation body on environment is the Central Environmental Policy Committee, which is involved in developing the National Environmental Plan, environmental conservation master plans and other policy documents. It has almost 200 members from academia, research institutions, private companies, etc. There are also several issue-specific stakeholder committees: river basin management committees in each of the four major river basins, the Environmental Health Committee, the Chemicals Evaluation and Management Committee, etc.
Large NGOs, such as the Korean Foundation for Environmental Movements and Green Korea United, actively seek to influence national environmental policy making. NGO representatives can participate as technical experts in consultative bodies but not promote their organisation’s policy agenda. The number of stakeholder co-ordination bodies has been significantly reduced in recent years, which has contributed to distrust between the government and civil society groups. Unlike in most OECD countries, NGOs in Korea generally do not receive government financial support.
In accordance with the Administrative Procedures Act (1996) and the Operational Regulation of Legislative Affairs (1998), the main provisions of every draft law and most executive regulations are announced in the media and on the government public relations portal (www.epeople.go.kr). The public then has 40 days to submit comments and opinions.
Public participation in EIA and strategic environmental assessment (SEA) is restricted to residents living in the area affected by a proposed project or plan (defined by government authorities) and does not include the wider public. Processes that pertain to areas with “high ecological value” are the sole exception: non-residents (but not environmental NGOs) may also participate. If citizens live outside a designated “impact area” but feel affected by a project or plan, they can appeal to the MOE or their local government, but do not have judicial recourse. EIAs do not have to be announced in the mainstream media, public hearings come late in the process – in the implementation phase – so serve mostly to inform the public of decisions already made rather than seek its input, and there is no obligation for authorities to accept citizens’ proposals. The integrated permitting reform (Chapter 2) does not envisage public participation in permitting decisions.
These shortcomings in the environmental decision-making process has led to strong, sometimes unconstructive, public opposition to government-promoted projects such as the Four Rivers Restoration Project (Chapter 3), construction of nuclear power plants and high voltage transmission lines, and siting of nuclear waste storage and other hazardous facilities (Bell, 2014). This in turn has heightened tension over specific projects and government-citizen relations on environmental matters more broadly. An effective conflict resolution mechanism is needed to address this issue and ensure that government works in partnership with NGOs.
6.3. Access to justice in environmental matters
The right of access to judicial and administrative proceedings in environmental matters underpins the procedural rights set out in Principle 10, as it enables enforcement of the right to have access to information, participate in environmental decision making and challenge decisions affecting the environment or violating environmental norms in a fair and impartial manner. It serves to operationalise the role of the public in enforcing environmental law and promoting good governance in environmental matters, as recognised in Principle 10 (UNEP, 2015). Table 5.5 sets out the detailed requirements of the Bali Guidelines on access to justice (Guidelines 15-26). Guidelines 15, 16 and 17 are the core provisions dealing with the three access rights (access to review for information requests not handled in accordance with the law, requests on the legality of decisions relating to public participation in environmental decision making, and those on decisions affecting the environment or allegedly violating environmental legal norms). Guidelines 18-26 provide guidance to governments on complementary measures that support full enjoyment of the access rights: on legal standing, quality and affordability of review mechanisms, access to remedies, enforcement of decisions, alternative dispute resolution, etc.
As in most countries, Korea’s access to justice framework is the least advanced of the three access rights (OECD, 2012d), with progress confined to access to compensation, and tentative in other areas. In terms of access to judicial or other independent and impartial review mechanisms for information requests, use of the legal entitlement to an administrative hearing or court action when an applicant is denied information appears to be limited in practice: for example, there were no administrative appeals or administrative litigation proceedings filed against MOE decisions under the Official Information Disclosure Act in 2015 (Section 6.1). Similarly, the government was able to provide only a limited number of examples of cases involving review procedures related to public participation, the potential of which is already limited by the narrow scope of public participation rights (Section 6.2). The United States has issued guidance clarifying how existing legal tools confer opportunities to pursue environmental justice aims (EPA, 2014); Korea could consider a similar initiative to enhance use of existing instruments.
Korea takes a narrow approach to standing, with direct implications for access to review procedures for decisions affecting the environment or allegedly violating environmental legal norms (Box 5.9). Natural or legal entities must have a specific and direct proprietary interest to bring environmental proceedings, which effectively restricts standing to local residents, or those with actual or probable damage to environmental interests. Environmental NGOs do not have standing without a “substantial or direct” legal interest of their own at stake (i.e. a direct infringement of a right of an organisation as a result of the infraction in question), consistent with a historic tendency to limit their role in government decision making (Kim, 2015).11 The public has certain consultation rights tied to draft EIA processes, but again these only apply to local residents and do not amount to a formal right of review. The requirements for consultation vary but include notice, inspection, presentation of the assessment to the public, public hearing and information provision, with final EIA reports to state whether public opinions are reflected. EIA processes, moreover, represent only one aspect of the wide range of decisions, acts or omissions that affect the environment or have the potential to violate legal norms (e.g. laws, broader government policy, environmental permitting decisions, actions by private actors outside EIA processes). The Administrative Litigation Act provides a mechanism for residents to appeal administrative decisions granting approval to development projects that may cause environmental pollution or damage, and request temporary suspension of approval while the appeal is under way. The Constitutional Court Act also provides for appeal to the court if the fundamentalright to a healthy and pleasant environment is infringed due to the exercise or non-exercise of public authority. Again, only limited examples of cases involving the exercise of these provisions were provided, suggesting their use remains limited in practice.
In 2012, Chile passed a law to create environmental courts, following the example of the US EPA’s Environmental Appeals Board. In doing so it substantially enhanced access to review procedures with respect to environmental law and decisions, including standards, EIA decisions and enforcement actions of the environmental superintendent. It has also enabled claimants to seek environmental remediation measures. The Santiago court handled 133 cases over 2013-15, the majority of which dealt with EIA. Each environmental court is staffed by three judges: two lawyers and one environmental scientist, increasing the technical level of environmental rulings. Hearings are open to the public and streamed live on the internet. The courts are independent, but their decisions can be overturned by the Supreme Court or a Court of Appeals.
Mexico recently expanded the interpretation of standing in environmental proceedings. In 2011 it passed a law to enable collective action by certain groups affected by environmental decisions, with a right to seek resolution of disputes affecting environmental rights and seek compensation for environmental harm and the restoration of damage.
Source: OECD/ECLAC (2016), OECD Environmental Performance Reviews: Chile 2016; UNEP (2015), Putting RIO Principle 10 into Action: An Implementation Guide.
Korea’s Liability Relief Act and Asbestos Injury Relief System represent important progress in facilitating access to justice (Section 5.1). The reforms are in line with an initial focus of Korea’s environmental justice movement on the impact of localised air pollution from rapid industrialisation on human health and ensuring appropriate compensation for victims in specific cases rather than ecosystem preservation or the social implications of environmental damage more broadly (Lee, 2009). Remedies beyond compensation are also important to environmental justice, a point forcefully underscored in 2015 by the UN special rapporteur on human rights and hazardous substances and waste, in view of the well-known “humidifier disinfectant” case that killed 140 people and injured over 500, and vulnerability of workers to hazardous substances (UNOHCHR, 2015). From a victim’s perspective, prevention is better than a cure; also, compensation will not necessarily result in “full restoration of ecological services given the irreversible impacts of many environmentally hazardous acts and activities” (UNEP, 2015). The remedies set out in the Framework Act on Environmental Policy are broader than those provided for in the Liability and Relief and Asbestos Injury Relief acts: it imposes liability without fault for damage caused by pollution by any person and an obligation to compensate victims, prevent relevant pollution or damage, and recover and restore polluted or damaged environments. However, the scope of responsibility is so broad as to be “no more than a declaratory regulation” with no force in practice (KEI, 2014). Because a framework for remedies relies on the underlying liability framework to provide the right of action, based on a transgression of law, the relatively narrow scope of Korea’s liability regime also acts as a limitation.
Korea’s long-standing alternative dispute resolution (ADR) system similarly focuses on compensation. The Environmental Dispute Conciliation Act was approved in 1990 to provide “rapid, fair and efficient” relief for damage to health and property through adjudication, mediation and recommendation procedures in environmental disputes. The system is overseen by the National Environment Dispute Resolution Commission under the MOE, together with equivalent regional entities. Collectively, the commissions had handled 3 853 cases by the end of 2014; 260 applications were made in 2014 alone, of which 236 were resolved, with an average turn-around time of 5.5 months from filing. The figures demonstrate the utility of the quasi-judicial commissions in facilitating compensation for damage in environmental disputes. Yet, as with the broader relief system, the compensation focus of Korea’s ADR system is to the expense of a focus on avoiding damage to the environment through the ability to challenge decisions, acts or omissions that affect the environment or breach environmental laws; or indeed resolving disputes associated with the rights of access to environmental information and public participation. In addition, the system focuses on individual disputes, which means it is basically ineffective when it comes to major environmental conflicts. Environmental NGOs do not have independent standing rights and their involvement in the ADR system is limited.
As Bali Guideline 25 underlines, capacity-building programmes in environmental law targeted at judicial officers, other legal professionals and other relevant stakeholders are one avenue to promote access to justice, as well as the other Principle 10 rights and broader environmental justice issues. This may be particularly relevant in Korea, given the apparently very limited role of the legal profession in promoting environmental justice (Box 5.10). Capacity issues have also been flagged in the context of the ADR system (KEI, 2012a). Enhancing commission members’ expert knowledge would help reduce financial and time burdens on disputing parties, given the members’ role in fact-finding and establishing causation.
UNEP (2015) sets out numerous examples of initiatives aimed at enhancing the capacity of judges and other legal officers on application of laws relevant to the effective implementation of Principle 10. UNEP itself has a programme for judges that includes training modules, manuals, judgement summaries and other materials on environmental law. The Asian Development Bank initiated the Asian Judges Network, which enables senior judges from countries of the Association of Southeast Asian Nations and the South Asian Association for Regional Cooperation to share information and experience to help build capacity on environmental adjudication through forums such as a symposium on environmental issues in 2010. The Regional Environmental Center for Central and Eastern Europe and the Organization for Security and Cooperation in Europe have conducted activities to enhance capacity on access to justice in Central and Eastern Europe, including round-table meetings and training initiatives for judicial officers.
Source: UNEP (2015), Putting RIO Principle 10 into Action: An Implementation Guide.
Policy framework
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Clarify environmental justice objectives in relevant legal or policy texts, and ensure consistency across documents, to clarify policy priorities, responsibilities across ministries and environmental justice rights of the public. Implement environmental justice objectives through appropriate laws and policies.
Environmental justice and broader equity challenges
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Reduce social inequality to improve the effectiveness of environmental policy and reduce environmental inequalities; strengthen the social safety net through increased public social spending.
Fair treatment of current citizens
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Assess the economic efficiency of further expanding wide area/municipal waterworks beyond certain threshold levels compared with measures to improve the quality of small-scale and village waterworks (e.g. supply of drinking wells, improved reporting requirements). Ensure effective measures to encourage independent water service providers to secure continued improvements in efficiency, cost reduction, cost recovery and environmental performance.
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Evaluate the economic, environmental and distributional impact of water supply and sanitation service pricing policies with a view to ensuring the financial sustainability of the sector and equitable access to these services.
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Prioritise information gathering on access of vulnerable populations to green space in metropolitan areas to promote more green space in areas identified as priorities. Encourage full consideration of green space issues in urban planning.
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Continue to expand analysis of environmental health issues associated with large cities, industrial complexes and contaminated sites, including through economic analysis, and ensure effective follow-up to manage identified risk.
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Improve data collection on exposure to environmental risk in rural vs. urban areas and with respect to vulnerable households.
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Take distributive impact into account as part of site selection and policy formulation to help promote distributive justice in the face of ongoing development pressures.
Fair treatment of future citizens
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Make sure the environmental interests of future generations are considered in policy and decision making, for example by reinvigorating green growth and sustainable development policies.
Environmental liability
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Introduce a strict liability regime to assign responsibility for past damage to water bodies and ecosystems, following the example of the liability system for soil contamination. Continue to update a register of all abandoned contaminated industrial sites and develop a financing mechanism for their gradual decontamination.
Environmental democracy
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Strengthen expression of the core procedural rights of access to information, public participation in environmental decision making and access to justice in law and policy to better marshal public support in effective environmental stewardship, including of development projects, and to constructively address and resolve environmental conflicts.
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Improve public participation in environmental decision making by introducing mechanisms for public involvement in the development of environmental permitting decisions, and by opening the EIA process to input from the general public (beyond local residents) and NGOs.
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Enhance access to environmental information by broadening disclosure of records on environmental behaviour of economic entities, including permit applications, regular self-monitoring reports and inspection reports, and data on air pollutants.
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Strengthen access to justice on environmental matters:
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Facilitate access to review procedures for information requests and decisions relating to public participation, and broadening legal standing rights in environmental proceedings, including for environmental NGOs.
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Ensure effective access to remedies beyond compensation (e.g. those geared to prevention or remediation), including as part of the ADR system. Consider capacity-building programmes for judicial officers and other legal professionals to promote their role in facilitating access to justice.
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Make systematic efforts to ensure that Rio Principle 10 is codified in Korean law, using the internationally agreed 2010 Bali Guidelines as a benchmark. Consider acceding to the Aarhus Convention to signal commitment to facilitating public participation in environmental decision making and provide impetus to strengthen implementation of these rights in law.
-
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Notes
← 1. Percentage of persons living with less than 50% of median equivalised disposable income.
← 2. Calculated using the 2014 average exchange rate.
← 3. In particular, the hydrofluoric acid gas accident at a chemical factory in the Gumi National Industrial Complex in September 2012, causing KRW 55 billion worth of human health and property damage.
← 4. Article 750, liability for damage caused by an unlawful act; Article 758, liability for damage caused by defect in the construction or maintenance of a structure.
← 5. The very real difficulties experienced by claimants were underscored by a United Nation special rapporteur on human rights and hazardous substances and waste following a country visit in October 2015; see www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16639&LangID=E.
← 6. Joint and several liability means a claimant may pursue an obligation against any potentially responsible party as if all were jointly liable and it becomes the responsibility of the defendants to sort out the respective proportions of liability and payment.
← 7. Calculated using the 2015 average exchange rate.
← 8. Calculated using the 2015 average exchange rate.
← 9. The amount of compensation for health damage is based on the degree of damage (class 1-10); for property losses it is based on expert assessment, with a cap of KRW 50 million.
← 10. To date, no non-ECE countries have done so.
← 11. Supreme Court Decision 97Nu19571 of 22 September 1998. While the decision does not have formal precedential value under Korean law, in practice it is highly persuasive and has been applied in subsequent cases as binding.