By LindaGail Arrigo, Tze-Luen Lin, and Yvonne M. Lin Source: Capria, Antonella et al. eds. (1996). Aworld Survey of Environmental Law, pp. 765 - 777. Milano, Italy. Giuffre Editore

Environmental Nightmare of the Economic Miracle

Environmental law in Taiwan is a fig leaf barely disguising rape of the environment. It is only in the last few years that popular mobilization and international attention, such as the 1994 outcry over sale of tiger parts in Taiwan, have led to enough embarrassment that the Taiwan government has felt the need for a fig leaf. It may be too little, too late, to save this once-beautiful island, "Formosa" as the Portuguese called it. There is a sudden proliferation of environmental law, but little sign of effective enforcement.

Taiwan is a large island, 375 km. long from north to south, 165 km. off the south coast of China and about 400 km. north of the Philippines; three-quarters of its territory is a spine of steep mountain ranges. Semi-tropical and well-watered, Taiwan's coastal plains have been intensely green and highly productive in the past. As a Japanese colony, 1895-1945, Taiwan exported half of its rice and four-fifths of its sugar to Japan.

Now Taiwan has a population of 22 million, mostly crowded along the west coast in large industrialized cities and in suburban sprawl that has choked once-productive rice land. By the early 1980s Taiwan had become a net importer of grain. Following on the phenomenal industrial growth of the 1970s and 80s, an estimated 30% of rice land has been contaminated with heavy metals; in only one county on the east coast is the rice crop 100% free from contamination from industry or excessive fertilizers and pesticides. The narrow east coast is still pristine in a few places, but it is fast being invaded by industry and land speculators.

The capital city of Taiwan, Taipei, has an affluent metropolitan population of over five million. Only in the last few years has a sewage collection and treatment system been designed for the city; over 95% of effluent is dumped into the rivers without treatment. Construction for a raised-train rapid transit system with six lines for the city began in 1988, with cost projection of US$ 16.3 billion. The first line began operation in April 1996, after much delay, cost overruns and safety concerns following revelations of kick-backs, shoddy construction and malfunctioning of equipment. Completion is projected for the year 2000, two decades behind Hong Kong's and one decade behind Seoul's rapid transit systems. Meanwhile the city has remained snarled in traffic, with cars and ubiquitous motorcycles spewing fumes of lead-spiked fuels.

It is not inappropriate to call this outcome of unbridled industrial development "the environmental nightmare of the economic miracle".

Taiwan is ranked as one of the "four little dragons" of Asian economic development, along with South Korea, Hong Kong, and Singapore, but it has also been named the dirtiest country in Asia by the Far Eastern Economic Review. Its industrial development has been envied and emulated by China and Vietnam, which are busy repeating the same process of "slash-and-burn" capitalism. It has been held up as a model for countries as far afield as South Africa. However, it would be wise for other countries to heed as well the mistakes made in this model, mistakes that have seriously eroded the quality of life in this land-short environment and produced sky-rocketing rates of respiratory disease and cancer. Taiwan could be considered a case study of what happens when timely planning and regulation are scarified for accelerated economic development.

The Sources of Environmental Destruction

Before considering the letter of the present environmental law in Taiwan, we will lay out the general social and political conditions in recent history that have led to the present predicament. The environmental problems of Taiwan can be traced to three basic sources:

1. A HISTORY OF POLITICAL REPRESSION

Taiwan was under martial law for forty years, 1947-1987, during which period the population's participation in national or even local development plans, not to say political dissent, was severely restricted. The government's own perspective on development was that of an embattled refugee regime, Chiang Kai-Shek's forces having retreated from the communist insurgency on mainland China. Until the late 1970s its political and economic plans were short-range and short-sighted, setting "reclaiming the mainland" as its priority; the ruling Kuomintang (Nationalist) Party and its supporters did not expect to remain in Taiwan for the long run. Gradually the anti-communist rhetoric gave way to legitimization of dictatorship through economic development under an export economy. But still for a long time there was little concern for environmental costs or long-term viability of development.

2. SMALL-SCALE AND UNREGULATED INDUSTRIAL STRUCTURE

In the 1970s small and medium-scale export industry mushroomed under the stimulus of an open U.S. consumer-goods market, an outgrowth of U.S. designs to showcase its protege, "Free China". Especially after the oil crisis of 1975, sub-contracting industry spread throughout city fringes and the countryside, resolving employment problems but also widely dispersing shoe-making, electroplating, plastics injection, painting, materials recovery (incineration of electronics equipment to yield copper and gold), and other processes. Neither large nor small industry was originally zoned or planned for control or collection of wastes. These processes produce chemical wastes and bulky trimmings that have generally been dumped surreptitiously. Now the geographical dispersion of industry and its small scale as well makes it extremely difficult to remedy the lack of earlier planning.

The same lack of regulation and search for short-term profits has led to serious problems in the agricultural sector, also one of small-scale agribusiness: land erosion and flooding following on illegal deforestation of public lands; land subsidence due to over-pumping of ground water for fish and shrimp ponds; overuse of pesticides and fertilizers on rice and vegetable land; and fouling of local waterways by offal from pig and chicken farms.

Large-scale industry, largely government-owned or protected, such as in cement, steel, paper, and petroleum, has likewise shown no concern for environmental consequences, though it has more easily become a target for popular protest by farmers, fishermen and townspeople. Government-owned industry itself makes little pretense of obeying environmental law.

3. URBAN SPRAWL AND LAND SPECULATION

Following Nationalist government takeover of much housing and land and the settlement of half-a-million Chinese refugees in 1949, uncertainties of ownership prevailed; no one dared gainsay government confiscation under eminent domain, but its rationale often appeared arbitrary. Land reform and land registration imposed regulations transferred from mainland China, though never applied there, such as tenants' and dwellers' rights in the land.

Following on this confusion in land rights, in subsequent decades the zoning and confiscation of land for development projects have been mired in commercial and political intrigue. The prosperity of the 1980s has led to a building spree, while zoning and city development plans have been rumored to be the capricious short-term designs of land speculators with under-the-table pull.

But Taiwanese farmers and smallholders as well have cashed in on their ancestral patrimony, or are expecting to do so. Land that was recently mud flats or fish ponds on the edges of cities in southern Taiwan may be priced at US$13 million and up per acre. Row upon row of four-story concrete apartments, often set at rakish angles to the streets, have advanced upon the rice fields outside of cities, with no provisions for parks or open land. Perversely, the cash value of the land leads it to be held idle for speculation rather than protected for agricultural or other productive use. Vacant land is routinely heaped with the detritus of construction from other sites, or industrial and household garbage.

Although city environmental agencies post signs threatening dumpers with fines of US$160, the signs themselves usually stick out from a heap of garbage. Construction companies dump truckloads of their demolition and excavation waste on any unused land that their vehicles can get access to, whether vacant lots, graveyards, road-side ravines, or public and park lands. The same process of construction and dumping is now proceeding on the east coast of Taiwan.

The Onset of Environmental Concern

With these conditions of near-anarchy, it is almost futile to ask what is the condition of environmental law. The government, now subject to popular vote, wants to continue in the mode of economic development. It cannot press the astronomical costs of cleanup on large industry except at great political and economic cost, and to do so might accelerate industrial flight to China and Southeast Asia. Likewise, it cannot discipline the thousands of small industries and individual polluters since its dictatorial powers have declined in the 1980s along with the populace's fear and respect for its martial law teeth.

So far even minor ameliorative measures that would require public compliance, such as mandatory deposits on soft-drink containers, have not been put into effect, despite the millions of individual drink cartons and cans that this high-consuming society tosses daily. Newspaper, cardboard and aluminum are generally collected by elderly ragpickers, but this recycling is not government-subsidized or aided. Some schools and private organizations sort out paper, tin, glass and PVC material for recycling, but the process of collection often mixes them again.

All the same, new democratic processes have focused public outcry over the deteriorating physical environment. This has particularly been seen since the first legislature fully elected by popular vote (albeit with massive vote-buying) took office in January 1993. The vocal opposition Democratic Progressive Party, with about 30% of the seats, has facilitated a hearing for environmental issues in the legislature, although it has not consistently backed environmental legislation. But where the opposition party has taken city or county government, it has stopped police from cracking down on environmental protest. Now promises to stop garbage dumping and clean up the environment are general for all candidates for office, though contributions from major polluters are also generally not refused.

The other factor raising the visibility of environmental issues is that Taiwan's government, seeking to maneuver out of China's diplomatic encirclement and achieve greater international recognition, has been hypersensitive to international criticism of its environmental record.

The result of the contradiction between a continuing legacy of industry-driven environmental destruction and the general internal and international recognition of its severity seems to have been a rash of legislation and a higher profile for the official Environmental Protection Administration, but still very little enforcement of environmental protections. Yet increasing response to public concern can be seen in recent legislation and statements by government figures.

The Advance of Environmental Law

The Taiwan government passed its first comprehensive environmental policy plan, the "Guidelines for Environmental Policy at the Current Stage" in October 1987, not long after the Lukang community struggle against government approval for a titanium dioxide plant to be built by Dupont there reached national headlines. Protests had also been building against government plans for several more nuclear reactors, despite frequent earthquakes in Taiwan and the generally substandard quality of government-contracted construction; and against the government siting of a large nuclear waste dump on Orchid Island, 90 km. off the southeast coast, which is one of the few preserves of the indigenous Austronesian people's culture.

While merely a guideline, the government plan stated "Based upon the long-term interests of the nation, equal effort and care shall be given to both environmental protection and economic development. If there is a severe negative impact on the environment in the course of economic development, priority consideration shall be given to environmental protection."

Taiwan's EPA was formed in 1987 by elevating the rank of the Bureau of Environmental Protection which was under the National Health Administration in the executive branch of the government. Although the EPA is now directly under the Executive Yuan, it is still not a cabinet-level government unit. The Taiwan EPA is not a single governmental unit administering environment-related affairs. Its responsibilities are distributed among several central governmental departments and agencies, such as the Ministry of the Interior (National Park services and land use), the Council of Agriculture (forest, natural conservation and wildlife protection), and the Atomic Energy Council (nuclear power and radiation). Forest and natural resource management, wildlife conservation, radiation protection, and cultural heritage preservation are not the responsibility of the EPA under the organization's charter. More specifically, what the Taiwan EPA administers and has responsibility for is only environmental pollution control and regulation. And it has been increasingly recognized that the EPA has been starved of the personnel, resources, and judicial remedies necessary to enable effective enforcement. All of this has been strongly criticized by environmental groups in Taiwan recently. They have unanimously called upon the government to elevate the Taiwan EPA to the cabinet-level position in government, as the Ministry of Environment, in order to improve the integration of environmental policy and the enforcement of environmental legislation.

The Taiwan Environmental Protection Union was formally founded in 1989 by professors and student activists with links to the opposition party, and other environmental activist organizations have coalesced in following years, despite the determination of Hau Po-tsun, military general-turned-premier who served May 1990- February 1993, to squelch social protest. From1988 on, the enactment of major new environmental laws and important amendments of older laws greatly expanded the EPA's responsibilities, even though the legislature was then still under virtually rubber-stamp control by the ruling Nationalist Party. The Taiwan EPA now administers several comprehensive environmental protection laws which mainly include: the Toxic Chemicals Control Act, amended 1988; the Waste Disposal Act, amended 1988; the Water Pollution Control Act, amended 1991; the Air Pollution Control Act, amended 1992; the Public Nuisance Dispute Resolution Act, enacted 1992; and most recently the Environmental Impact Assessment Act, enacted 1994.

Among the major pieces of environmental legislation, there are some characteristics that need to be addressed: First, the enactment of Taiwan's environmental laws has basically followed in the footsteps of industrialized countries, particularly the United States and Japan. This is partly because Taiwan has been pursuing an "economic growth first" strategy, and has been confronted with similar environmental challenges. For example, the enactment of the Public Nuisance Dispute Resolution Act in response to growing environmental disputes was modelled on Japan's earlier legislation. Second, command-and-control regulation strategy dominates in most of the environmental laws. Though this conventional regulatory strategy has achieved some successes, the situation that has evolved is far from optimum. Old-fashioned air and water pollution is still serious, with little sign of abatement. Therefore, in the last few years, the Taiwan EPA has begun to introduce a market-based instrument levying a pollution tax on both stationary and mobile sources of air pollution. Similar systems of levies are being considered for water pollution and solid waste treatment. Third, recent amendments to the pollution control laws have added or increased the fines and penalties for illegal effluence or dumping. However, the enforcement of environmental laws has been persistently interfered with by elected officials, while the ruling party turns a blind eye. The environmental legislation is considered by many to be merely token lip-service.

Since 1987, Taiwan's EPA has drafted 56 bills, regulations and amendments about water, air, noise, and dispute resolution that have been passed by the legislature. However, due to the inefficiency of the Legislative Yuan and the impasse on many issues of national constitution and national identity, over 50 important environment-related laws and regulations are still pending. The Taiwan government hesitates to push the enactment of the "Environmental Protection Fundamental Act", worrying that it will retard economic growth. This proposed law would serve as a kind of constitution for environmental protection; it has been pending for seven years in the Legislative Yuan. Despite the apparent weakness of legislation and enforcement, new environmental measures have been noted by and elicited a stream of objection from industry. President Lee Teng-Hui seemed to be responding to this in an August 31, 1993 statement (summarized in Independence Evening Post No. 171, September 12, 1992, p. 10), to wit: Environmental regulation must be set at a "suitable" level, lest it affect industrial production. Moreover, regulation must be particularly directed to matters which immediately affect the people, such as garbage disposal and river pollution. The means for promulgation of environmental protection should be incentives and education. This August 1993 statement implied a gradualistic approach to environmental rectification, or perhaps even a turning away.

Rising Tide of Public Concern over Environmental Issues

The public has in the past had much less voice than industry on environmental matters. Before 1993 the major pieces of environmental law in Taiwan excluded the participation of citizens and environmental interest groups. There was not even any formal access for the general public to obtain governmental information. The Public Nuisance Dispute Resolution Act of 1992 may have been one of the first environmental laws to partially incorporate citizens into the environmental decision-making process. It refers to citizen participation in environmental mediation and arbitration processes, but the "citizens" are confined to scholars and environmental professionals.

The Wildlife Conservation Act of 1994 requires that the central government should form a wildlife conservation consulting committee and that representatives of experts, environmental interest groups and indigenous people in the committee should be not less than one-third. This grants environmental interest groups a legal standing in participating in wildlife conservation affairs. In addition, one of the features of the Wildlife Conservation Act is that it requires the authorities to hold public hearings. The consulting committee is to be responsible for the conservation listing of wildlife and permission for wildlife preserves. This is an example of a matter that has been hotly contested according to different interests of sectors of the populace.

The indigenous Austronesian peoples claim that prohibition on killing wildlife criminalizes their ancestral culture and traditional rights to hunt; though they may just as much fear the loss of their meager cash income from sale of exotic fish and meats served in tourist restaurants.

The Environmental Impact Assessment Act is the latest environmental legislation and includes more participatory procedures for citizens and environmental interest groups. This may be because environmental impact assessment itself is an administrative procedure that can serve to forestall negative social reaction. The Act requires that the authorities establish a review committee and that it should be composed of not less than two-thirds scholars and environmental professionals.

It appears that the government will continue to face mounting public unrest over environmental issues. Last year the race for mayor of Taipei, the capital city, was won by Chen Shui-bien of the opposition Democratic Progressive Party; the party is against the construction of a fourth nuclear plant, slated to be built on the northeast coast not far from the city. A non-binding plebiscite was held on the same day as the presidential elections, March 23, 1996, which conferred on President Lee Teng-hui new stature as the first democratically-elected president in Taiwan's history. In this nuclear referendum, the city voted 54% against the nuclear plant; turnout was 59% of Taipei's 1.84 million eligible voters.

But it remains to be seen whether the political and social will to control continuing environmental deterioration can be mustered by either government or populace in Taiwan. Garbage being burned in fields next to factories can plainly be seen from the major highway nightly in industrialized areas of southern Taiwan. An abbot of a monastery in Tainan has for ten years tried to stop the illegal nighttime emissions of a nearby plastics factory, to no avail. In May 1994 one of the authors of this article took pictures of the illegal brown-frothed effluent of a large government-owned paper mill on Taiwan's east coast, which local environmental activists said they had been reporting on to the Environmental Protection Administration for years, again without effect. It is rumored that inspectors and even community leaders, and environmental activists themselves are routinely bought off. But there are also signs that government agencies are increasing responsive, and that environmental activists are mobilizing public opinion and are increasingly determined to restore Taiwan's natural beauty.

Let us hope it is not already too late.