Status and International Cooperation Aspects of Air Quality Control Laws and Policies in Korea

in Asian Yearbook of International Law
Open Access

i Introduction

1 Purpose and Object

The note focuses on the State practice of Korea with regard to air quality control, especially from 2015 to 2016, and some pieces of information before 2015. The main focus are Korean domestic laws and administrative policies, and their implications upon the State practice. The relevant domestic laws are ‘Clean Air Conservation Act,’ ‘Framework Act on Low Carbon, Green Growth,’ and ‘Act on the Allocation and Trading of Greenhouse-gas Emission Permits.’ The administrative practices are collected mainly from ‘The 2nd Comprehensive Plans to Improve the Atmospheric Environment (2016–2025)’ (2nd Comprehensive Plans), which were unveiled by the Ministry of Environment, the supervisory body of the atmospheric environment, on 31 December 2015. Assembly resolutions, in addition, are introduced.

2 Structure of Korean Air Quality Control Laws and Policies

Korean polices of air quality control include two pillars: one is ‘air pollutants control’ and the other is ‘greenhouse gas (ghg) mitigation.’ The former mainly relates to domestic vehicle policies and transboundary pollutants from China. The latter relates to internal regulations, incentives and investment and relating to international cooperation and international market mechanism.

A clear structure is drawn in the 2nd Comprehensive Plans, which demonstrates that the Korean government is trying to integrate and manage the two pillars for better efficiency. The Plans have an abundance of domestic policies which strengthen regulations, on the one hand, and support eco-friendly industries, on the other hand. It states international efforts heading for the conclusion of regional agreements among the Northeast Asian countries.

ii Domestic Laws

1 Clean Air Conservation Act

a Introduction

The Clean Air Conservation Act2 functions as a framework act managing air quality and atmospheric condition. The purpose of the Act is to enable all people to live in a healthy and comfortable environment by preventing air pollution which causes harm to people and atmospheric condition and by managing and preserving the atmospheric environment in a proper and sustainable manner.3 The Act identifies 22 terms such as air pollutant, air pollutants subject to watch for hazard, climate/ecosystem-changing substances, greenhouse gases, gas, granular matter, dust, exhaust fumes, soot, specified hazardous air pollutant, volatile organic compound, air pollutant-emitting facilities, air pollution prevention facilities, among others,4 which have direct and indirect effects on interpreting the other air quality control regulations. The Act mandates the Minister of Environment to establish and implement Comprehensive Plans every ten years in order to improve the atmospheric environment by reducing air pollutants and ghg.5 The act provides the legal basis that ensures the Comprehensive Plans works.

The current inclination of the Act, in accordance with recent amendments, shows two features. First, the amendments to the Act relate to damage prevention of long-range transboundary air pollutants and international cooperation for prevention. Second, articles on certain industries, especially vehicle industries, which produce specified hazardous air pollutants, are progressively tightened via amendments of the Enforcement Ordinance of the Act.

b Recent Amendment upon Long-Range Transboundary Air Pollutant

The amendment on 1 December 2015 implies the changing stance of the government toward transboundary pollution, which seems to mirror the public perception, that there is a more serious problem than “yellow sand.” The definition of ‘long-range transboundary air pollutant’ is newly introduced in the amendment. The term, strictly speaking, is replaced with the ‘yellow sand’ which is wind-brown dust from China to the Korean Peninsula. The article before the amendment regulated upon the operation of A Yellow Dust Prevention Committee and the prevention of yellow dust,6 but the revised one expands the object of regulation to the air pollutants over the yellow dust and the Committee also changed into A Long-Range Transboundary Air Pollutant Committee.

The amendment is more detailed than before. The original text put endeavors to cooperate with relevant nations to the government. The amendment, however, enumerates seven specific means that elaborate the endeavors to cooperate: (i) holding, supporting and participating in various events, such as international conferences and academic conferences; (ii) exchanges of technology and human resources, and cooperation, between relevant countries and with international organizations; (iii) supporting research on long-range transboundary air pollutants, and disseminating findings of the research; (iv) education and public relations on long-range transboundary air pollutants in the international community; (v) raising financial resources to prevent damage caused by long-range transboundary air pollutants; (vi) establishing an air pollution monitoring system and implementing environmental cooperation and conservation projects in Northeast Asia; (vii) any other matters necessary for international cooperation.7

c Strengthened Restrictions upon a Certain Industry

The amendment on 27 January 2016 focused on legal restrictions on the domestic vehicle industry. According to the amended Article 46(4) and Article 89.6-2, prohibits motor vehicle manufacturers from intentionally altering or manipulating the design of components related to exhaust gases differently from the details of certification obtained under relative provisions, and a wrongdoer shall be punished by imprisonment for not more than seven years or by a fine not exceeding 100 million krw, or about 90,000 usd. In addition, the wrongdoers who manufacture and sell motor vehicles without obtaining certification and/or motor vehicles different from the details of certification obtained may be imposed a penalty surcharge of up to 10 billion krw, or about 9 million usd.8 The amount decupled, or increased by ten times from one billion krw to 10 billion krw.

The amendment, in the meantime, promotes and incentives eco-friendly technologies in the industries. The newly inserted provisions allows the Minister of Environment to build the charging information network to manage the information of car charging, to install and operate charging facilities for electric motor vehicles, and to evaluate the performance of electric vehicles to determine persons eligible for subsidies or loans.9

d Comment

The amendment on 1 December 2015 introduced new regulations upon damage prevention caused by the long range transboundary air pollutant and revised related articles on the Act. The amendment on 16 January 2016 fortified the restriction on the vehicle industries and simultaneously tried to activate new eco-technologies. The amendment mirrored the perception of Korea that domestic air pollution has been resulting not only from national causes but also from foreign ones. However, any restriction against countries or foreign industries attributable is not found in the Act. The Act relies only upon such soft means as civil communications (especially, international academic exchange), international cooperation, research support and dissemination, education and public relations activities. Meanwhile, effluent gases from vehicle pipes are dealt with as objects of tough sanctions. And the goal and purpose of the sanctions is clearly declared to protect national health and to prevent aggravation of air pollution.

This may be interpreted that the government prefers a political approach to a legal approach that appeals to international settlement. Our opinion is that the approach is a good choice for Korea. International environmental laws have been perceived in the way that the enforcement of these laws is still weak since they are operated on the basis of reciprocity. In such an international atmosphere, Korea fortifies and implements strong regulations at the level of international environment agreements or over the level, which can be a bedrock to push other countries for fortified standards.

2 Framework Act on Low Carbon, Green Growth

a Introduction

The ‘Framework Act on Low Carbon, Green Growth’(‘Framework Act’),10 adopted at the 8th Cabinet Meeting held under the superintendence of the President on 25 February 2008 and enacted on 14 April 2010, highlights two aspects: the environment(‘low carbon’) and the economy (‘green growth’). The Framework Act pushes the government to build up a comprehensive national development strategy, and to vitalize market functions initiated by the private sector, at the same time. In other words, the Framework Act propels the maximal role of private markets to help the air quality better by minimizing nuisance restrictions to the economy. Article 1 envisages and underlines that its purpose is economic growth and the take-off to a mature, top-class, advanced country via the realization of a low-carbon society. The definitions of the terms in Article 2 focus mostly on such economics-related words such as growth, technology, industry, product, management, and so on.

b Governance of Climate Change Mitigation

The Framework Act proposes the legal frame of the climate change governance.11 The Cooperation and interdependence of each economic shaft such as the central government, local governments, business entities, and citizens is underlined.12 Article 38 envisages the understanding of gravity of the climate change caused by global warming and the need to cover-all countermeasures by the whole nation. Simultaneously, the provision orders that mid-term and long-term goal of national ghg mitigation shall be be set up. The specific roadmap is entrusted to the lower legislation such as Presidential Decrees and/or Enforcement Ordinances, but still it signposts the ways underlining the development and utilization of cutting-edge technologies and converging technologies.13 And the market mechanism is adopted with provisions to provide for international carbon market.

The Chapter 2 of the Act provides that ‘National Strategy for Low Carbon, Green Growth’ shall be established and implemented by the government, and the National Strategy may be under the control of the Prime Minister. Action Plans implementing the National Strategy, furthermore, shall be established by the central government and each local government respectively. The realization of green economic system, green technology and green industries, policies for coping with climate change, policies on energy and policies on sustainable development, and matters concerning negotiations and cooperation in relation to low carbon, green growth including climate change are included in the National Strategy. They are deliberated by the Presidential Committee on Green Growth, which is the core deliberation agency upon low carbon and green growth policies, and then brought to the State Council.

The amendment on 24 May 2016 includes transfer of jurisdiction over the Integrated Information Center for Greenhouse Gases to the Office for Government Coordination from the Ministry of Environment, which means that the Center came under the jurisdiction of the Prime Minister, in order to peak efficiency.14 The role of the Center is deeply relating to the establishment of specific targets via studies and research. After the evaluation of its status, the Ministers of many relating agencies shall cooperate with the Center upon the work of it.

c Implementation of the Paris Agreement

The Framework Act implies that the target mitigation shall be regulated by the lower legislation, and the Enforcement Decree of the Framework Act stipulates the national reduction target. The Article 25 of the Enforcement Decree provides, “The target for the reduction of greenhouse gases … shall be to reduce total nationwide emissions of ghg in 2030 to 37/100 of the estimated emissions of ghg in 2020.” The provision incorporates the Paris Agreement, signed on 22 April 2016 and entered into force 3 December 2016, and, interestingly, it was amended on 24 May 2016 even before the entry into force of the Agreement. The 36% (compared to bau) is the same numerical value with the figure of the indc which Korea voluntarily announced in June 2015.

The Framework Act provides establishment of the med- and long-term targets and the goals attached to each particular phase, and measures necessary for accomplishing the targets by the government.15 And the government may require appropriate ‘central administrative agencies, local governments, and public institutions’ to set up targets for energy saving and targets for the reduction of greenhouse gases.16 Furthermore, a measurable, reportable and verifiable manner is required so as to hit the targets for such sectors as industry, traffic, transportation, household, and commerce, which established and managed by the government.17

d Comment

The title of the Framework Act consists of two key words; low carbon and green growth. The provisions, however, seem to give weight to green growth rather than environmental protection. Thus, some criticize that the Act puts economic growth before the environment. Some provisions of the Framework Act, in addition, are inconsistent with the Paris Agreement unlike the purpose of the Act and the announcement of the government. However, two ideas require concern. First, it should be considered that a change of a formed system may cost quit expenses, especially when the system had been formed without economic consideration. The system designed to cost can be sophisticated and refined. Second, swift amendments of the Framework Act can help prevent “race to the bottom,” on which each country would alleviate their environmental standard to accelerate capital attraction.

3 Act on the Allocation and Trading of Greenhouse-Gas Emission Permits

a Introduction

‘Act on Allocation and Trading of Greenhous-gas Emission Permits’ (‘Emission Permits Act’) aims at the realization of the market mechanism enshrined in the Framework Act. In other words, the Emission Permits Act is a legal ground for the market system to allocate and transact emission permits so as to achieve the mitigation goal established in accordance with the Framework Act, and its lower legislations.

b Amendment Relating to the Paris Agreement

The Enforcement Decree18 was amended on 24 May 2016, which the amendment was almost about the change of jurisdiction over the ghg allocation and trading. The general controller was changed to the Deputy Prime Minister for Economic Affairs. National emission allowances, emission trade exchange, Emissions Certificate Committee, and other tasks in general are placed under the agency. Allocation plans, emission permits in reserve, designation of emission trade exchange, measures for market stabilization, the organization and operation of the Certificate Committee, and the designation of recognition agencies became under the control of the Minister of Strategy and Finance, which is held concurrently by the Deputy Prime Minister for Economic Affairs.19 Such executive tasks as permits allocation, adjustment of permits allocation, report-authentication, and penalty surcharging were transferred from the Minister of Environment to the Minister of Agriculture, Food and Rural Affairs, Minister of Trade, Industry and Energy, Minister of Environment, Minister of Land, Infrastructure and Transport, and/or Minister of Maritime Affairs and Fisheries, respectively.20

c Comment

Empowerment into various government branches, which looks like an effort to connect domestic transaction to the international carbon exchanges, is the highlight of the amendment of the Emission Permits Act. In spite of some criticisms that such empowerment may result in the absence of coherence of the policy, it may produce positive results. First, it may enhance flexibility and responsibility for the system of the controllers. Second, such an effort to active carbon exchanges may boost autonomous technical development by private industries and lower ghg emissions. This seems important because the relative new comer, Korea, in carbon exchanges has not been equipped with a complete market to enter the international market system. The effort of the government policy, however, should be rated ‘positive’ because the Korean exchange continues to grow and, simultaneously, the flow of permits is also slightly growing.

iii Administrative Measures

1 Background

In accordance with the specifics of the 1st Comprehensive Plans, which is the first package of nationwide 10-year-plans in the atmosphere-climate sector by a planning law, or Article 11 of Clean Air Conservative Act. The Plans affirms such schemes as ghg mitigation, integrated climate-atmosphere systems, climate change adaptation, establishment on management system for greenhouse gas emission, establishment on implementation process for Kyoto mechanism, technical development for support businesses, incentives to induce reduction, and international cooperation. For forcing the plans, the government drafted and the Assembly enacted ‘Framework Act of Low Carbon, Green Growth’ in April 2010, and ‘Act on the Allocation and Trading of Greenhouse-gas Emission Permits’ in May 2012 and the domestic emission trading system has been operating from 2015. The government, furthermore, invited Green Climate Fund and has been enhancing its negotiating leverage at international bargaining tables.

The 2nd Comprehensive Plans, meanwhile, focuses on integrated response to climate change and lowing damage caused by certain air pollutants. The change is attributable to the fact: While climate change has been resulting in increasing damage due to extreme weather in Korean Peninsula,21 increasing damage seems to be cumulating owing to growing consumption of natural resources by both Korea and China recently. The 2nd Plans shows explicit numerical numbers that back up such an assumption that domestic find dust, Nitrogen (NO2), Ozone (O3), and other Hazardous Air Pollutants (haps) has been resulting in serious air pollution.22 The Plans also anticipates the increasing risk factors, or transboundary air pollutants, from the growing economy.23

2 Cores of the 2nd Comprehensive Plans

a Air Quality Improvement

The current state and prospect of air pollutants, targets and measures to decrease air pollutant including haps, and atmosphere management system integrating air pollutants with ghgs are dealt with in the 2nd Comprehensive Plans.24 Air quality improvement includes six major objectives: establishment of atmosphere management system, advancement emission management of workplaces, reduction in all steps of vehicle operation, eradication of hidden pollutants in the daily living, safe atmospheric environment from haps, and promoting technological foundation. While the 5 metropolitan cities and the cities with populations of 500 thousand or more were under management by the 1st Comprehensive Plans, the 2nd Plans administers the nationwide area taking into comprehensive consideration of regional statue of pollution and environmental risk. The objects to be managed by priority are the level of fine dust under PM10/PM25, Ozone and Nitrogen, emission quantity of Nitrogen and volatile organic compounds (vocs), and the risk of haps.

The 2nd Comprehensive Plans included detailed solutions upon certain vehicle industries. The solutions, so called ‘mobile pollution sources measures’, deals with production cars, moving cars, two wheels motors, and non-road mobile pollution sources. This may be regarded as stepped-up emission management over the conventional vehicles. Meanwhile, the Plans provides for various ideas to expand eco-vehicle consumption. It presents a specific numerical value and eco-cars over 3,300,000 goes to road in 2025. In order to get to the goal, enlargement of consumer benefit such as consumer subsidies and eco-incentives are laid out.

b Climate Change Response Plans

Climate mitigation response establishes long-term carbon reduction plans, adaptation, and international cooperation. Following the Paris Agreement and the ratification by Korea, first of all, the government is to increase in the bau reductions in comparison with the reductions of the 1st Comprehensive Plan. Four sections to propel are ghg reductions in industrial department, the leading country for low-carbon life, reinforcement of adaptation capacity in the whole society, a win-win approach between climate and economy.

The 2nd Comprehensive Plans in the industrial department help advance carbon exchanges, support the business participating the exchanges, activate emissions offsetting in non-industrial sectors, and give efforts to join in international carbon markets. For the leading country for low-carbon life, in addition, the Plans propel the climate change response capacity of local governments, expansion of ghg reduction in the transportation sector, management of ghgs like freon gas, development of programs for green life, enlargement of low-carbon production and consumption. And reinforcement of adaptation capacity in the whole society includes the adaptation governance, observation-forecast-analysis capacity, fosterage of adaptation industries taking advantage of climate change, and social security system from the climate change. Lastly, for a win-win approach between climate and economy, the Plans devise schemes such as climate-energy ties, increased investment in R&Ds, neo-climate regime negotiations and international cooperation, and enhanced operation for exhaust statistics.

c Comment

The air quality improvement covers a reinforced restriction over a certain vehicle industry and activation of new eco-industries, and international trade dispute may arise in terms of the wto regime. Though the specific figures and policies seem to be induced because of the gravity and severity of national air environment, the point may be seen is the prohibited protection of a national industry in conjunction with the wto Regime which prohibits discriminatory protection of home industries. However, wto cases such as us-Gasoline, us-Shrimp, and ec-Asbestos recognized the need of environment protection, which is not the disguised restriction benefiting to national industry. The plans to low-carbon vehicles will enlarge the portion of high efficient and low-carbon cars and result in significant carbon reduction in the transportation sector and the plans does not distinguish Korea from foreign countries.

The climate change response is to hit the indc goal in a manner of the total participation of central government-local government-(juristic/natural) person and international cooperation. In the meantime, the 2nd Comprehensive Plans anticipate the national side effects of mitigation, especially economic ones, and emphasize economic growth making the best use of carbon mitigation. The integrated effort may help secure the sustainability of climate change response.

iv National Assembly Resolutions

The last meaningful action is the recursive announcement of Assembly Resolutions. Almost every year, the assembly or some members of the assembly calls for substantial reduction of the domestic fine dust and support for it, and substantial cooperation with neighboring States. A Resolution in 2014 starts with the mention, “For years to come, more frequent breakouts are expected, and repeating yellow sand may result in national disaster.”25 And it states, “A benchmark of the ‘unece Convention on Long Range Transboundary Air Pollution’ is in need … we strongly insist that Korea-China-Japan Convention on Long Range Transboundary Air Pollution’ to set up the unified standard of air pollutant emission and enforce the standard.” The resolution in 2015 starts with a prod for instant and active measures to reduce fine dust. It shows well the perception of Korean nationals upon the fine dust. It states “… to be free from fear of fine dust …” and “Korean government must give efforts to strengthen cooperation with China and neighboring countries … and support internal industries relating to lowering fine dust.”26

1 Comment

The Assembly Resolution, as a way to represent the will of people, offers a navigation of further legislation. Even though the serious wordings and grave nuance of the sentences, the law-makers appeal to cooperation not to international liability for damage in international relations. And internally, they are looking to alleviate the air pollution by the promotion and support for new technology. This is similar to the stance of the government.

v Conclusion

Scratching the surface of the practices, a few tendencies can be found. First, the stance of Korea is to appeal not to international responsibility but to international cooperation, especially between/among East Asian counties. Second, Korea responds quickly to meet the obligations under international agreements such as the ipcc recommendation. Third, Korea is eager to make certain industries developed, or to become eco-vehicle industries.

This approach seems to be induced, on the surface, because fine dust from Korea and China are getting more and more serious and air pollution threatens Korean nationals. Climate change will have a substantial effect on the Korean Peninsula. One other reason for the approach is reciprocity. International law on the environment are still under development and imperfect. So Korea seems hard to meet her expectation in the way of an appeal to the international environmental laws. However, Korean implementation of the international standards such as ipcc recommendation can be a basis to urge other State with stronger implementation on the basis of reciprocity. A very good example of normalization of reciprocity are the Articles upon Harmonization under the sps Agreement, and Mutual Recognition under tbt Agreement which became normalized in the wto legal system. In the same manner, many elements of the environmental sphere may be normalized in the form of mutual recognition and reciprocity. The 2nd Comprehensive Pans expressly declare that Korea will make efforts to take a lead in the field of environment protection. This declaration may be based on the philosophy and principle of philosophy.

On investments made to the car industry, some wto-related problems may be raised. The international economic sector, however, is also changing to consider environment protection. And formal wto cases such as us-Gasoline, us-Shrimp, and ec-Asbestos showed that regulations for the purpose of environmental protection can be recognized. As long as Korea avoids to operate its policies without disguised trade restrictions, there may be no need for future settlement of disputes.

Kyung Hee University, Korea.

Act No. 13874, Partially amended on 27 January 2016.

Ibid. art. 1.

Ibid. art. 2.

Ibid. art. 11.

Art. 13, 14, and 15, Act No. 13034, Partially amended 20 January 2015.

Art. 1, supra note 2.

Ibid. art. 56.

Ibid. art. 58(15)~(17).

Act No. 13874, Partially amended on 27 January 2016.

Ibid. art. 4(1).

Ibid. art. 5(1) and 6.

Ibid. art. 38(3).

Art. 36(1) of Enforcement Decree of the Framework Act on Low Carbon, Green Growth. Enforced on 1 June 2016, Presidential Decree No. 27180, amended on 24 May 2016.

Supra note 10, art. 42(1)1.

Ibid. art. 42(1)3.

Ibid. art. 42(5).

Presidential Decree No. 27181, partially amended on 24 May 2016.

Ibid. art. 3, 4, 5 and 32.

Ibid. art. 6(1)2 and 26(3).

Yeora Chae, et al. Economic Analysis of Climate Change in Korea, Research Report, 2012.

The 2nd Comprehensive Plans to Improve the Atmospheric Environment (2016–2025), announced by the Ministry of Environment on 31 January 2015, at. 35–36.

Ibid. at. 32.

Ibid. at. 1.

Assembly Resolution Insisting Conclusion of Korea-China-Japan Convention on Long Range Transboundary Air Pollution, submitted on 28 February 2014.

Assembly Resolution Insisting Measures to Protect the National Health from Fine Dust, announced on 30 April 2015.

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