환경영향평가제도 상 협의의 독립쟁송 ― 인･허가 의제되는 협의의 경우와의 비교 ―

The environmental impact assessment(EIA) process, in which likely environmental impacts of a proposed project is evaluated and mitigation measures are identified, has evolved to further expand the environmental agency's authority to secure its effectiveness as a key means of sustainable development. The courts regard an EIA as a procedural tool for project approval, while yielding its judgement out of deference to the expertise of the environmental agency. Additionally, strict standing requirements combined with the lack of a screening procedure to determine whether to conduct an EIA of a specific project make judicial review of EIAs extremely difficult. The adequacy of an EIA’s procedural role of promoting transparency and accountability through public participation and information sharing among agencies, experts, and stakeholders is often left overlooked despite it is an irreplaceable feature of an EIA and can only be controlled by the environmental agency. Given that the shared sovereignty between the permit-issuing agency and the environmental agency within an EIA process is intended by the lawmakers as a way of controlling the permit agency’s discretion with respect to the environmental impact, the environmental agency’s discretion should be considered independently as well. Recently, the Supreme Court recognized cancellations or withdrawals of constructive permits, and their reviewability in court even though their issuances are exempt and replaced with inter-agency consultation. These cases support the reviewability of the environmental agency’s EIA decisions, apart from the issuances of permits or enforcement orders. It is possible to confine judiciary intervention to environmental aspects and EIA’s key procedural functions by allowing judicial review of the intermediate environmental agency decisions rather than the final approval or disapproval of a project. The environmental agency makes various decisions in the review process an EIA, and they directly affect not only the developer’s rights, but also the interested third parties’ environmental rights. Withdrawals of these decisions should be allowed independently from the project approval in order for the environmental agency to be able to verify compliance. If independent judicial review of those decisions is allowed, developers may be able to seek early remedies from administrative vans or project disapprovals directly against the environmental agency. In addition, the chances of ineffective and overdue rulings such as the “under consideration” court decisions being made for projects well in progress can be reduced.