環境法, 分權이 答인가?

Abstract

In the field of environmental law, a total of 390 national affairs have been transferred to local governments. And the demands to transfer the affairs to local governments are expected to increase continuously. However, many believe that the transfer of environmental affairs from the national government to local governments would lower the level of enforcement of environmental law and consequently infringe on people’s environmental rights. With this awareness of the problem, this article presents some factors that must be considered in decentralization in the field of environmental law. To achieve this, this article examines the progress of decentralization in South Korea and the current situation of transferring environmental affairs to local governments. It also analyzes the roles of the national government and local governments in some major environmental cases, such as the Gumi hydrofluoric acid leakage accident, the Uiseong Trash Mountain case, and the Bonghwa Young Poong Seokpo smelter case. Based on these analyses, this article suggests several essential factors to be considered in determining whether the State will devolve its environmental affairs within its jurisdiction to local governments, and which of its affairs the State will devolve to local governments. First, if environmental pollution caused by a certain company affects other regions beyond the one where it is located, the affairs to regulate the type of company should be carried out by the State rather than by the local government. Second, it is also necessary to consider whether the local government will neglect to enforce environmental regulations for a company, because of the local government’s economic dependency on the company or the company’s economic influence within the region. The greater the economic or political influence of the regulated company within the region, the more appropriate it would be for it to be regulated by the State rather than by the local government. Third, to minimize the adverse impact of the transfer of the State’s environmental affairs to local governments, it is also necessary to consider regulatory capabilities such as the professionals, equipment, and financial resources necessary to carry out environmental affairs such as environmental regulations. The more complex the content is and the more expertise or advanced technology it requires, the more expensive it is to enforce, so the more the State will need to take charge of the affairs until local governments can supply the necessary human resources, equipment, and financial resources. Fourth, transferring the State’s environmental affairs to local governments in situations where regulatory capabilities are different for each local government can lead to environmental injustice or worsen existing injustice. Therefore, it is necessary to establish or supplement the institutional mechnism to correct environmental injustice. As a result of applying these factors to integrated pollution prevention and control (IPPC) system, the local transfer of which has recently become increasingly demanded, it would be more appropriate to maintain them as State affairs rather than transferring them to local governments in all four aspects. This is not only from the viewpoint of protecting environmental rights and achieving environmental conservation, but also from the viewpoint of the principles of allocation of administrative affairs under the Special Act on Local Autonomy and Decentralization and Restructuring of Local Administrative Systems. Decentralization does not mean that local governments should take charge of all administrative affairs, but reasonable allocation of the powers and responsibilities of the State and local governments and ensuring that the functions of the State and local governments are in harmony. The question of how to allocate the powers and responsibilities between the State and local governments in the environmental laws is not an easy one, but one which we all should continue to endeavor to solve together.