An overview of Korean environmental law.

• Author: Cho, Hong Sik

1. INTRODUCTION

   The United States and Korea(1) have maintained a close relationship with each other for the last fifty years, since the United States participated in the Korean War to prevent communists from occupying the Korean peninsula. During this period, Korea has achieved miraculous economic development. At the moment, Korea and the United States are interdependent in terms of economy and security. Korea is one of the countries with which the United States has a large trade volume. In 1997, the value of Korea's worldwide exports and imports reached $136.16 billion and $144.62 billion respectively, totaling a combined foreign trade volume of $280.78 billion.(2) Korea is thus the twelfth largest trading nation in the world. Naturally, the United States is Korea's largest trade partner.(3) In 1997, Korea imported $30.12 billion from the United States in exchange for $21.63 billion in exports, making it the fifth largest trading partner of the United States.(4)

   There are four important reasons to be aware of Korean environmental law. First, Korean environmental law can be a barrier for exports from the United States to Korea. Second, while United States investment in Korea, whether direct or through other means, is expanding, environmental liability will be a crucial consideration for United States investors. Third, the United States has a number of military bases within Korea, all of which are considered a source of water pollution and soil contamination.(5) Finally and most importantly, Korean environmental law can be a model for developing and less-developed countries, just as Korea became a model for rapid economic growth.

   Focusing on the fourth issue, I will overview the past history, the present statutory structure, and the future challenges of Korean environmental law. Because Korea is one of "the incumbent economic leaders of developing Asia," its development efforts are illustrative of "the pitfalls and tradeoffs awaiting developing nations as they attempt to nurture a growing economy without poisoning the environment."(6) Lessons from Korea's experience may help prevent developing countries from repeating the same mistakes Korea has made.

2. A SHORT HISTORY OF KOREAN ENVIRONMENTAL LAW

   Korea's first national environmental law, the Pollution Prevention Act (PPA)(7) was enacted in 1963. That year was the first year of Korea's initial five-year economic plan initiated by then President Park Chung Hee, a symbolic hero of the Korean economic miracle.(8) As with most developing countries, Korea put first priority on economic development over environmental protection. In the middle of Ulsan City, a mecca of Korean industrialization, a monument tower displays the following inscription: "Dark smoke arising from factories are symbols of our nation's growth and prosperity.(9)

   Korea has accomplished tremendous economic growth, as evidenced by its average annual gross national product (GNP) growth rate of over eight percent--more than double that of most other countries.(10) However, this success came at a cost and gave rise to a number of social ills. Korean people thought everything had to be done "faster and faster."(11) In other words, "[t]he Korean government and people ignored the [deteriorating environment] until [the 1980s] despite worldwide concern for pollution because they were too busy concentrating on developing the economy and meeting basic needs."(12) Korea concentrated on heavy industries (such as automobiles, steel, and shipbuilding) and petrochemicals, resulting in serious deterioration of the environment.(13) Rapid urbanization made the situation much worse. More than twenty-five percent of Korea's population lives within the city limits of Seoul.(14) Indeed, Korea was plagued by industrialization and urbanization along with limited land availability and population increases.(15)

   Because of the severe environmental degradation that resulted from Korea's "poisoned prosperity,"(16) the people of Korea have reassessed the feasibility of the "faster and faster" idea. The Korean people have suffered from a number of severe environmental harms, such as the dumping of phenol into the Nakdong River.(17) Therefore, in the wake of the country's industrial growth in the late 1980s and 1990s, environmental protection became an "increasingly public issue."(18)

   As environmental degradation emerged as a serious social problem, a wide scope of people began participating in the efforts for environmental preservation.(19) Activities by a number of environmental nongovernmental organizations (NGOs) have been the predominant factor behind the public's increased awareness.(20) People who had devoted themselves to the democracy movement in the 1970s and 1980s became environmental activists. Environmental NGOs are becoming more active in their environmental preservation activities. This trend will continue because the Korean people are now more attuned to environmental issues than at any time in the past.(21)

   The Korean government also realized that strong responses were urgently needed.(22) One of those responses was the strengthening of existing environmental laws. The PPA had been crippled by the absence of an environmental agency to oversee the enforcement of its laws and regulations; hence, new statutes were enacted, numerous regulations promulgated, and new environmental agencies were created and elevated to the ministerial level to improve environmental protection.(23) In 1977, the National Assembly replaced the ineffective PPA with the Environmental Preservation Act.(24) Shortly thereafter, in 1979, the Environmental Administration (EA) was established to "orchestrate environmental duties that were then spread out `among a host of ministries and agencies.'"(25) In 1980, the Constitution of Korea was amended to provide all Korean people with the right to live in a healthy and clean environment.(26)

   While the new law provided for various administrative and criminal sanctions, it was not strictly enforced. The government's priority was to rebuild the Korean economy, which had been shattered by political turmoil during the early 1980s.(27) Furthermore, EA was structurally organized to deal primarily with pollution problems: "EA for the most part left nonpollution control issues, such as those concerned with parks and wildlife, to other divisions of the government."(28)

   In the early 1990s the Korean government launched a concerted effort to address the country's mounting environmental concerns. The first step was to substantially rework the existing legislation and to promulgate new laws to address pollution and other environmental issues.(29) While Korea's legal system is heavily influenced by the civil law traditions of Germany, the new environmental law system is modeled after that of the United States.(30) For example, the most important Korean environmental law, the Basic Environmental Policy Act (BEPA)(31) is patterned after the National Environmental Policy Act (NEPA)(32) of the United States.(33) Further, just as the United States has a number of medium-specific statutes below NEPA, Korea also has similar statutes below BEPA.

   Simultaneous with these legislative changes, EA was upgraded to full ministry level as the Ministry of Environment (MOE).(34) MOE has actively pursued efforts to implement new medium-based statutes.(35) At the moment, MOE successfully maintains its ministerial status despite sweeping governmental reorganization led by the new administration of President Kim Dae Jung.(36)

3. THE CURRENT STATUTORY STRUCTURE OF KOREAN ENVIRONMENTAL LAW

   Article Thirty-Five of the Constitution of Korea provides that "[a]ll citizens shall have the right to a healthy and pleasant environment."(37) As depicted in the Appendix, this right is at the top of the hierarchy of the environmental law system. Since the early 1990s, the general public has tried in vain to pursue its environmental goals through litigation based upon this provision. However, the Supreme Court of Korea has construed the provision as not self-executing.(38)

   Immediately below the Constitution is the "backbone" of Korean environmental law, BEPA. Like NEPA in the United States, BEPA sets forth general principles, fundamental policies, and an administrative framework for environmental preservation and remediation. It leaves the more detailed regulations and emission limits to separate environmental statutes targeting air, water, and solid waste and to national and local regulations, to the extent that they are consistent with BEPA.(39) The "polluter pays...