Judicial Review Of Cases Involving Public Participation In Environmental Impact Assessment

It has been 20 years since the implementation of the Environmental Impact Assessment Law in 2003,which confirmed the legal status of public participation in environmental impact assessment(EIA).With the enactment and continuous revision of relevant laws and regulations on public participation in EIA,the system of public participation in EIA is improving day by day.Public participation is the core procedure of EIA,which provides the risk communication field of government power,scientific rationality and public discourse for the “decision in the unknown” EIA decision.However,the frequent occurrence of environmental mass incidents and nimby incidents in recent years reveals the shortcomings of public participation in EIA,including the defects in the design of administrative procedure rules and the absence of judicial relief.Therefore,this paper takes the judicial review of cases involving public participation in EIA as the research object,selects a series of relevant and representative cases involving public participation in EIA in the past ten years as research samples,and adopts the research idea of combining overall analysis and case study to observe the current situation of judicial review of cases involving public participation in EIA from three perspectives: macro,meso and micro.Summarize the problems existing in the current review and make targeted recommendations.Specifically,this paper will start from four parts: overview of the judicial review of public participation in EIA cases,observation of the current situation of judicial review,existing problems and suggestions for improvement:The first part firstly explains the concept of public participation in EIA,then sort out the content of public participation in EIA document preparation stage and EIA approval stage respectively,and then expounds the meaning and legal basis of public participation in the judicial review of EIA cases.Finally,according to the procedural law,the judicial review of public participation in EIA cases is discussed from the two perspectives of prosecution conditions and the legality of administrative acts.In the second part,557 judgment documents that may be related to public participation in EIA are initially screened by using the “Judgment Documents Network”and the “Peking University Talisman” database,and then 99 judgment documents that really involve the contention points of public participation in EIA are manually selected as research samples.After a statistical analysis of the basic characteristics of the research samples,The current situation of public participation in the judicial review of EIA cases was further observed from three aspects: the review of prosecution conditions,the review of procedural legality and the review of entity legality.The third part,based on the observation of the current situation of judicial review,summarizes the existing problems in the judicial review of public participation in EIA cases: in the review of the prosecution conditions,the court’s recognition of the plaintiff’s qualifications is not clear;In the examination of the legality of the procedure,the court has a different recognition of the effectiveness of publicity,and tends to examine the legitimacy of the form of publicity procedure,and the recognition of the applicable conditions of the hearing procedure is not clear;In the examination of the legitimacy of the entity,the court has a deviation in the examination of the authenticity of public participation.The fourth part puts forward specific suggestions and countermeasures for the problems existing in the judicial review of EIA public participation cases.On the examination of the plaintiff’s qualification,it introduces the theory of protection norms to define the plaintiff’s qualification in EIA public participation cases.In the examination of the legality of the procedure,the distinction between “publicity” and“notification” should be clarified in the way of detailed examination of EIA information disclosure,the substantive legality of the publicity procedure should be examined to effectively protect the public’s environmental information right,and the connotation of“significant interest relationship” and the unique role of hearing should be clarified to determine the applicable conditions of the hearing procedure.In the examination of the legitimacy of the entity,the responsibility of the EIA examination and approval authority for the authenticity of public participation should be clarified,and the normal errors in public opinion surveys should be prudently identified.