Written by Kuan-Wei Chen.
Image credit: Kyoto – Copenhague by Pierre Marcel / Flickr, license: CC BY-NC-ND 2.0.
Since the late 20th century, environmental protection has emerged as a significant theme in public law research in Taiwan. Climate change and environmental conservation have become crucial in today’s global discourse. While Taiwan has made notable legislative progress, such as the Basic Environment Act (2002) and the Climate Change Response Act (2023) derived from the Greenhouse Gas Reduction and Management Act (2015), it’s essential to observe the progress at the constitutional level. Since the 2000s, there have been continuous suggestions from civil society and academia about incorporating environmental rights into the constitution. However, how environmentally friendly Taiwan’s constitution currently is remains uncertain. Through this blog post, I aim to establish a basic framework via ecological constitutionalism.
Significance of Ecological Constitutionalism Perspective
Firstly, it’s crucial to elaborate on the concept of “ecological constitutionalism.” This inclusive concept encompasses the essence of “environmental constitutionalism,” referring to the integration of environmental protection into a nation’s constitution. Ecological constitutionalism emphasises principles of sustainability, intergenerational equity, and the rights, obligations, and principles related to human health, natural environment, and climate. It extends beyond human-centric approaches to include concerns for animals, plants, and entire ecosystems.
Given Taiwan’s current circumstances, characterised by geopolitical trends, frequent natural disasters, and an industrial structure dominated by small and medium-sized enterprises, people often pursue immediate interests. However, it is precisely for these reasons that thoughtful consideration of sustainability is of importance to Taiwan. From this perspective, fully considering ecology from a constitutional standpoint and pursuing ecological constitutionalism aimed at sustainability is also of noteworthy significance for Taiwan.
Elements of “Ecological” in the Constitution
In Taiwan, the constitutional-level requirements for environmental and ecological protection primarily stem from Article 10(2) of the Additional Articles of the Constitution, which states that environmental and ecological protection shall be given equal consideration with economic and technological development. This provision, known as the “equal consideration” clause, was added during the constitutional amendment in 1994. Initially viewed as a mere policy guideline, both legal scholars and constitutional practice now generally recognise the substantive effect of these Fundamental National Policy Clauses. In Judicial Yuan Interpretation No. 426 in 1997, the Justices acknowledged the state’s obligation to protect the environment and ecology. However, this provision lacks a subjective rights nature, meaning citizens cannot directly sue based on it. Nonetheless, legal scholars argue that courts should consider these Fundamental National Policy Clauses when interpreting fundamental rights to enrich their content.
The next question is which fundamental rights can serve as the foundation for the clause? The debate surrounding “environmental rights” often centres on whether to interpret them under Article 15’s “right to life” or to recognise an independent environmental right within the constitution. If we use the “right to life,” it is already a guarantee of survival provided by the Constitution. However, if we establish an independent “right to environment,” it would rely on the justices to create a specific right related to the environment under the general fundamental rights clause of Article 22 of the constitution. This independent right could encompass more aspects related to the environment, offering more comprehensive protection of rights concerning humans and the environment compared to solely using the “right to life.” Nevertheless, it would also bring challenges in compatibility with the existing system of fundamental rights. However, challenges persist regarding the lack of clarity in defining the content and ensuring compatibility with individual-centric rights protection systems. Nevertheless, recognising environmental rights in a rights-based manner is deemed necessary to prevent mere declarative rights.
Furthermore, regarding “climate,” legal scholars argue that the “right to health” could serve as a constitutional anchor. In Judicial Yuan Interpretation No. 785, the Justices stated that Article 22 of the Constitution, which guarantees the right to health, imposes obligations on the state to care for the physical and mental health of the people. This right could be extended to include threats posed by climate change to human health, thus providing a constitutional basis. By combining the aforementioned Fundamental National Policy Clause, which imposes obligations on the state to protect ecology, these elements could form the constitutional foundation for ecology. However, further development is needed to clarify their content.
Additionally, some legal scholars argue that the “environmental state principle,” meaning that any action of the state should take into account the aspect of environmental protection, should be as crucial a constitutional value determinant as democracy, the rule of law, and social state principles. While similar arguments exist in other countries, concrete implementation is yet to be realised.
Bottom-Up Endeavours
The aforementioned constitutional observations are top-down perspectives. However, to concretise their contents, citizens have initiated lawsuits to prompt courts to clarify constitutional contents or obtain further constitutional recognition. These constitutional requirements are then implemented into administrative and legislative actions to ensure the practical realisation of ecological protection goals—a fundamental aspect of ecological constitutionalism. As witnessed in global “climate litigation” trends, Taiwan has also initiated some climate litigation proceedings. Nevertheless, the primary challenge remains eligibility for litigation, even with the Climate Change Response Act (2023), which fails to include the citizen litigation clause advocated by environmental groups.
Recently, there have been two notable cases. One of them is the “Major Electricity Consumers Case.” Greenpeace, the Environmental Jurists Association, and four potential victims of climate disasters (residing in areas potentially affected by rising sea levels) filed a lawsuit. They argued that the regulations set forth in the Major Electricity Consumers Management Measures under the Renewable Energy Development Act impose excessively low requirements on corporations, neglecting their duty to reduce carbon emissions and infringing upon people’s basic right to survival. This case was dismissed by the Taipei High Administrative Court on procedural grounds. Specifically, the plaintiff did not meet the requirements for filing a lawsuit in this case. Or, they lacked the eligibility for litigation. Another constitutional lawsuit is directly challenging the Climate Change Response Act filed by the Environmental Rights Foundation. The applicants argue that the law fails to fulfill the nation’s carbon reduction responsibilities and that this generation’s failure to act will severely infringe upon the fundamental rights of future generations. They extensively referenced significant developments in the German Federal Constitutional Court in 2021. The applicants ask legislators to establish short- to medium-term regulatory targets for the nation or, at the very least, provide standards for the Environmental Protection Agency to set regulatory targets. These standards should include the temperature limits of 1.5°C and 1.7°C mentioned in the Paris Agreement and should link the remaining carbon budgets of different temperature limits to achieve intergenerational justice. However, due to procedural reasons, it is also difficult to anticipate that the Constitutional Court can directly review the substantive content of this case: This case did not go through the administrative court procedures and was instead brought directly to the Constitutional Court due to the inability to seek relief in the administrative court. The current Constitutional Court Procedure Act does not permit such procedures to skip the steps in administrative courts. Therefore, overcoming procedural difficulties is indeed a challenge.
From Environment and Climate to Ecology
In summary, Taiwan has made efforts in environmental, climate, and ecological protection from legislative, administrative, judicial, academic, and civil society perspectives. Nevertheless, the actual implementation still requires observation. Ecological constitutionalism may inspire a shift in viewing ecological protection as an “obligation” rather than merely an effort—especially given the urgency of climate change’s impact on humanity. Moreover, despite Taiwan’s inability to participate in many international agreements, the government seeks to align with international standards such as carbon reduction. However, environmental groups believe that the government’s goals are rather conservative. Considering the industrial structure, current circumstances, and public livelihood factors, the government views a reduction target of “24 ± 1% by 2030” as a more pragmatic approach. This dilemma underscores the importance of “ecological constitutionalism” in Taiwan. By embedding ecological considerations into the constitution, ecological factors may be more seriously implemented in legislation and across different government departments and actions. While there are challenges in aligning ecological considerations with other constitutional imperatives, we should anticipate more refined articulations of their interplay. By addressing these challenges and striving for a more comprehensive understanding of ecological constitutionalism, Taiwan can pave the way towards a more sustainable and environmentally conscious future.
Kuan-Wei Chen is a public law researcher. She holds a Doctor of Law title from LMU Munich, Germany, and an LL.M. and an LL.B. from National Taiwan University, Taiwan. In 2023, she completed a JSPS fellowship at the University of Tokyo. Her latest research interest lies in how East Asian democracies with advanced technology are shaping their own models of digital constitutionalism. Personal Website: https://kuan-wei-chen.com/
This article was published as part of a special issue on ‘Taiwan’s Legal Landscapes for Environmental Justice and Climate Action.’
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