환경영향평가와 사법심사 - 환경영향평가의 하자에 대한 판례의 검토를 중심으로 -

Abstract

Criticisms continue to be raised that the system of Environmental Impact Assessment is becoming a mere formality, and the major reason is that judicial precedents adopt too strict standards in recognizing flaws in Environmental Impact Assessment. In the standing to sue, the residents within the region of Environmental Impact Assessment are divided from the people living out of the region. While the former is accepted for standing to sue, the latter has to prove that their legal interests have been infringed upon. However, the burden of proof needs to be alleviated as the area of environment is a professional and technological field. Precedents judge that authorization of the project which does not undergo an Environmental Impact Assessment is illegal and invalid. In case the environmental impact assessment is started and there is no public hearing or opinion gathering process in the process, the case sees it as illegal and cancelable. There is no definite precedent for other procedural flaws, except that in the case of minor flaws based on theoretical viewpoint, there is an element to be considered as an element that examines whether discretion is deviated or abused, rather than a ground for an offense. The consultation process would be regarded as an act of violation if the environmental impact assessment procedure does not go through because it performs the function of consensus. The Environment Impact Assessment Act stipulates consultation with the Minister of Environment when an Environmental Impact Assessment sheet is prepared. Precedents regard that the consulted opinion of the Minister of Environment is no more than simple consultation. But it should not be regarded as a simple opinion of consultation as, in fact, the matters which need consultation with the Minister of Environment are the essential contents of the Environmental Impact Assessment. Consultation issue is procedural and substantive flaws. The substantive flaw in Environmental Impact Assessment means poor investigation and representation of alternatives. Precedents do not promptly deny the effectiveness of the project plan or project for the reason of such flaw unless the flaw is so serious that the purpose of legislation of the Environmental Impact Assessment system cannot be achieved. In general, precedents judge the approval of the project plan or project in overall consideration of various flaws, in fact there are few cases of rejection of the approval of the project plan or project. The main reason for the magnanimous stance of precedents about flaws in Environmental Impact Assessment is the irreversibility of the project. It can be the intrinsic limitation of Environmental Impact Assessment. Therefore, it is necessary to filter out in advance the factors which may infringe upon environmental interests by conducting Strategic Environmental Impact Assessment properly in order to overcome such a limitation and protect environmental interests.