An overview of Korean environmental law.

I. 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.

II. 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)

III. 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 principle," the strict liability standard for environmental harm, and the environmental impact assessment are among the distinctive features of BEPA.(40) BEPA also authorizes the central and local governments to establish environmental quality standards to preserve the environment and to protect human health against environmental degradation.(41)

Below BEPA are a number of statutes--each of which is tuned to a specific medium--which further the general principles of BEPA.(42) The Air Environment Preservation Act (AEPA),(43) the Water Environment Preservation Act (WEPA),(44) the Noise and Vibration Control Act (NVCA),(45) the Waste Management Act (WMA),(46) and the Toxic Chemicals Control Act (TCCA)(47) are typical examples of these statutes. The specialization of environmental laws is still underway. As a result, new statutes such as the Environmental Impact Assessment Act (EIAA)(48) and the Soil Environment Preservation Act(49) have passed the National Assembly. Presently, twenty-eight environmental statutes are under the jurisdiction of MOE.(50) The president, prime minister, and various ministers implement the statutes by issuing regulations in the form of decrees.(51) Currently, environmental statutes and regulations are being enforced through gradually increasing criminal and administrative sanctions, as well as through civil liability.(52)

IV. THE LESSONS LEARNED FROM KOREA'S EXPERIENCE AND THE FUTURE CHALLENGE OF KOREAN ENVIRONMENTAL LAW

The developmental history of Korean environmental law demonstrates that two conditions must be satisfied in order for developing countries or less-developed countries to develop their own environmental protection laws. First, the general public must be aware of environmental ills and must be ready to mobilize as one unified voice. While it cannot be denied that the government itself has initiated the development of Korean law, its actions were spurred by "growing public discontent over environmental issues rather than the result of critical introspection."(53) In this context, nongovernmental environmental organizations have played a major role as "a formidable policy-influencing force and unofficial pollution watchdog" in Korea.(54)

In light of the importance of public awareness, increased environmental education is necessary, especially in developing countries, to correctly shepherd personnel and resources to appropriate areas and to create a grassroots movement for legal and organizational reform.(55) Realization of the significance of environmental problems will be the first step toward building a consensus for effective environmental protection. If environmental education is not appropriately provided to the general public, catastrophic environmental accidents, such as Chernobyl, Bhopal, and Nakdong River,(56) will take the place of education.

Second, economic development must occur. In Korea, economic development has brought democracy into full bloom. In turn, democracy has successfully created a social ambiance where people bring environmental issues into the light. Indeed, as democracy has developed in Korea, the Korean people's awareness of environmental protection has dramatically increased, affecting governmental and business practices both in the form of public protest(57) and by means of litigation.(58)

Despite the enactment of the Environmental Preservation Act in 1977 and the establishment of the Environmental Administration in 1979, Korea's environmental protection legislation, until recently, has had to compete with the long-standing national priority given to economic growth. But without economic growth, people cannot put enough emphasis on environmental concerns. Also, without economic development, government agencies responsible for environmental protection can stand only "at the low end of the bureaucratic pecking order with respect to prestige, influence, and the power to move events."(59) Ironically, this means that we are stuck in a quandary: if we want to protect the environment, we must first sacrifice the environment to pursue economic growth.

Current circumstances dictate that the western consumption-oriented culture prevails all over the world. This culture clashes directly with environmental concerns that ultimately effect sustainable growth. Given the worldwide information network, people in the less developed countries are exposed to the prominent lifestyle of western developed countries, which inspires them to do things "faster and faster." Obsessed with western consumption-oriented culture, they are left with no room to consider the environment. Developing countries will likely follow the same path that the developed countries have followed. Accordingly, the importance of the mass media's role in educating the general public about the value of environmental protection cannot be overemphasized.

As with developed countries, Korea has placed a continuing emphasis on preserving and enhancing the environment--especially since 1990.(60) MOE, for example, has expressed its strong willingness to gradually strengthen ambient air and effluent standards to keep pace with international standards.(61) Furthermore, the people of Korea have become more interested in environmental issues than ever before. Thus, there is an increasing need for the creation of new environmental policies, as well as the revision and strengthening of existing policies. Although the so-called IMF crisis casts dark clouds over this trend,(62) it will continue into the near future. To strengthen this momentum, Korean environmental law must take several steps in the coming century.

The first step is to develop a comprehensive theory to protect and preserve the environment like the public trust doctrine in the United States. Currently, Korea has no comprehensive theory except for a constitutional right to a healthy and clean environment. Moreover, the Korean Supreme Court has consistently stated that the constitutional right to a healthy and clean environment is not self-executing.(63) As a result, unless an environmental suit is based upon a specific statute, it must be pursued under tort or nuisance law. Unfortunately, there is a paucity of such precedents in Korea. For example, during the time when the enactment of a bill called the Wetlands Preservation Act(64) was pending, one could not compel the government to consider the ecological value of wetlands before reclaiming them unless he or she was the owner of adjacent property.(65) Except for property claims, one could not find any legal grounds upon which to establish a claim.

The second step is to soften prudential standing requirements or to enact citizen suit provisions. Just as the United States courts did prior to the Data Processing(66) decision, Korean courts presently apply a "legal interest" test for prudential standing, thereby prejudicing environmental interests. In other words, a plaintiff seeking redress for environmental harm must demonstrate injury to a legal interest in order to obtain judicial review of governmental agency action.(67) Unless an interest is founded in a statute that is interpreted to protect the interest of a private individual, he or she cannot seek judicial review of governmental agency action.(68) This means that individuals affected by a project cannot sue the government when it grants the permit for the project, because statutes are not interpreted to take into account the interests of local residents or the general public.

However, the current situation will not last long. In addition to the dynamic activities of environmental NGOs, new laws have surfaced. The Administrative Procedure Act,(69) which for the first time in Korean legal history authorizes the public to participate in various governmental agency procedures, came into effect in March 1998. The Act on Disclosure of Information by Public Agencies(70) recently came into effect, as well. Furthermore, the government has been considering the adoption of a citizen suit mechanism and has finished drafting such a bill.(71)

The third step is to develop rules for judicial remedies available to environmental victims. Public awareness first came in the form of victims' outrage, which instigated the public to come before the court in large numbers. Legal professionals should make efforts to transform public rage into specific legal principles. The establishment of legal doctrines should heavily affect the subsequent conduct of the general public, industry, bureaucracy, and legislature.(72)

In Korea, environmental victims' concerns are diverse; they range from recovery of pollution damages to permanent injunctions for environmental preservation. Recently, more attention has been focused on the availability of injunctions. However, constraints inherent in litigation processes keep the court from playing its expected roles. As in Germany and Japan, class actions, pretrial discovery, jury trials, and punitive damages are not available in Korea. Only in limited cases do the Korean courts provide permanent injunction remedies.(73) Furthermore, the Korean courts usually concentrate only on dispute resolution, as opposed to the United States courts, which focus on policy making in addition to dispute resolution.(74) These obstacles must be overcome in order for environmental victims to command substantial protection from environmental degradation. Given the high level of public awareness about the significance of environmental protection, the courts' activism and creativity may make a difference in Korea's environmental quality by filling a void in the law.

If Korean environmental law successfully addresses the above three issues, it will reap a number of advantages. With the creation of a comprehensive theory, expansion of standing, and diversification of judicial remedies, people can choose the court as an appropriate avenue for resolving environmental claims (whether or not a specific environmental statute has been enacted). Furthermore, people can substantiate their negotiating power against powerful industries and the government through the judicial process. The court, by responding to people's claims, can make polluters pay and prevent governmental agencies from taking unreasonable environmental risks, which will certainly educate the public about protection of the environment and internalize environmental externalities. Individuals as well as powerful industries and government will pay more attention to protection of the environment for fear that they may be forced to compensate for environmental damage and that their permits may be nullified for environmental reasons. In other words, they will consider environmental problems as their own immediate concern, not as one of the public's distant issues.

V. CONCLUSION

In recent decades, Korea has evidenced its prowess by accomplishing rapid economic growth. Korea has accomplished such astonishing economic growth that it has become a model for rapid economic development. However, Korea's success came only at the cost of degrading the environment. This tainted success was caused by the Korean government's prodevelopment policy coupled with the Korean people's hasty ("faster and faster") attitude. Until the late 1980s, both the Korean government and its people were too busy concentrating on developing the economy and meeting basic needs to have any appropriate consideration for the environment.

However, this costly economic development has paid off. It has created a democratic ambiance where the general public can be mobilized as one unified voice. In addition, a number of environmental harms, including unidentified diseases, have been severe enough to awaken the general public to the tragic truths of rapid industrialization. Undoubtedly, the growing public consciousness over environmental issues has spurred government action. Korean environmental NGOs have had a critical influence on the government's policy-making and enforcement activities.

One of the Korean government's responses has been legal and institutional reform. The Korean government followed the environmental law system of the United States by reworking existing environmental laws, promulgating new laws, and raising the environmental agency to a ministerial level. The modernization of environmental laws is still underway.

However, legal and institutional reform may fall short of making changes in governmental and business practices that affect environmental quality. To keep the public interested in environmental protection and to transform the public consciousness into a realistic impetus for a change toward sustainable development, the court should be a forum in which the public may play a contributory role with viable and innovative legal theories. If Korea successfully addresses this challenge, it will provide a model for developing countries once again.

(1) For purposes of this Article, I will use "Korea" to refer to the Republic of Korea, also known as South Korea.

(2) CUSTOMS SERVICE, REPUBLIC OF KOREA, STATISTICAL YEARBOOK OF FOREIGN TRADE 171 (1997).

(3) For information on trade statistics, see generally INTERNATIONAL MONETARY FUND, DIRECTION OF TRADE STATISTICS YEARBOOK 280--82 (1998). For important economic statistics of Korea in 1997, see MINISTRY OF ENVIRONMENT, REPUBLIC OF KOREA, 1998 ENVIRONMENTAL WHITE BOOK 7-8 (1998) [hereinafter 1998 ENVIRONMENTAL WHITE BOOK].

(4) CUSTOMS SERVICE, supra note 2, at 179.

(5) See Richard A. Wegman & Harold G. Bailey, Jr., The Challenge of Cleaning Up Military Wastes When U.S. Bases Are Closed, 21 ECOLOGY L.Q. 865, 923-43 (1994).

(6) Richard J. Ferris, Jr., Aspiration and Reality in Taiwan, Hong Kong, South Korea, and Singapore: An Introduction to the Environmental Regulatory Systems of Asia's Four New Dragons, 4 DUKE J. COMP. & INT'L L. 125, 126, 128 (1993).

(7) Law No. 1436 of Nov. 5, 1963 (S. Korea).

(8) Five-Year Economic Plan Announced; 3,214.5 Bil. Hwan will be Invested, KOREA TIMES, Jan. 14, 1962, at 1; Revised Five-Year Plan Foresees Average Annual Economic Growth of 7.1 Percent; Exports Stressed, KOREAN REPUB., Jan. 14, 1962, at 1. For an explanation of five-year economic development plans, see MINISTRY OF ENVIRONMENT, REPUBLIC OF KOREA, 1997 ENVIRONMENTAL PROTECTION IN KOREA 9-10 (1998) [hereinafter 1997 ENVIRONMENTAL PROTECTION IN KOREA].

(9) This quote is from the ceremonial address by Park Chung Hee at the groundbreaking ceremony for the construction of the Ulsan industrial complex, which was one of the major development projects in the first five-year economic development plan. Su-Hoon Lee, The Rise of Environmentalism in South Korea (1997) (unpublished manuscript, on file with author). For more information on the groundbreaking ceremony for the construction of the Ulsan industrial complex, see Groundbreaking Ceremony Held for Huge Construction of Ulsan Industrial Center, KOREA TIMES, Feb. 4, 1962, at 1.

(10) Ferris, supra note 6, at 127. Korea has attained remarkable economic growth recently, with per capita income surpassing the $10,000 mark. MINISTRY OF ENVIRONMENT, REPUBLIC OF KOREA, 1995 ENVIRONMENTAL PROTECTION IN KOREA 3 (1995) [hereinafter 1995 ENVIRONMENTAL PROTECTION IN KOREA].

(11) 1995 ENVIRONMENTAL PROTECTION IN KOREA, supra note 10, at 3.

(12) Ferris, supra note 6, at 160.

(13) In Korea in 1991, "only 31% of sewage [was] treated before it [was] dumped into waterways [leaving] many of the rivers and streams that [ran] through cities and industrial estates effectively dead." Id. at 127.

(14) Sang-Yeol Park, Environmental Law in Korea, J. ENVTL. L. & PRAC., Nov.-Dec. 1993, at 32.

(15) Id.

(16) See generally NORMAN EDER, POISONED PROSPERITY: DEVELOPMENT, MODERNIZATION AND THE ENVIRONMENT IN SOUTH KOREA (1996) (discussing environmental degradation resulting from development, industrialization, and modernization in Korea).

(17) See Six Doosan Plant Officials Arrested for Dumping 325 Tons of Waste Phenol into Nakdong River, KOREA HERALD, Mar. 22, 1991, at 3; Prosecution Pushes Probe into Doosan, Gov't Officials, KOREA HERALD, Mar. 23, 1991, at 1; Roh Orders Thorough Probe of Water Pollution--Urges Steps to Prevent Recurrence of Contamination, KOREA TIMES, Mar. 22, 1991, at 1; Son Key-Young, Environmentalists Contend Polluters of Rivers Should be Given Harsher Punishment, KOREA TIMES, Mar. 23, 1991, at 1.

(18) Mark R. Ruppert, Criminal Jurisdiction over Environmental Offenses Committed Overseas: How to Maximize and When to Say "No," 40 A.F.L. REV. 1, 29 (1996).

(19) As of February 1997, there were 371 environmental nongovernmental organizations (NGOs), including the Korea Environmental Preservation Association and the Korea Action Federation for the Environment. Forty-six of these organizations, such as the Citizens' Coalition for Economic Justice and the Korean Federation of Housewives Clubs, were established for purposes other than the environment, but they have nevertheless been involved in the environmental preservation campaign. MINISTRY OF ENVIRONMENT, REPUBLIC OF KOREA, 1997 ENVIRONMENTAL WHITE PAPER 217-18 (1997) [hereinafter 1997 ENVIRONMENTAL WHITE PAPER].

(20) For a study of the environmental movement in Korea, see Su-Hoon Lee, supra note 9, at 4-18. For more information on environmental preservation activities by environmental NGOs, see 1998 ENVIRONMENTAL WHITE BOOK, supra note 3, at 157-61.

(21) A number of reform policies have been aggressively sought since the Kim Dae Jung administration's inauguration. Kim Dae Jung's administration guaranteed to all Koreans basic human rights and equal opportunities, encouraging "people to be more productive, and interested and enthusiastic about leading pleasant and healthy lives." 1995 ENVIRONMENTAL PROTECTION IN KOREA, supra note 10, at 3.

(22) As the Ministry of Environment stated, "Ultimately, this led the country to reach a consensus that work should be done with the attention and time that it deserves and that investments should be made toward improving the quality of life rather than only rapid economic growth." Id.

(23) The PPA was enacted on November 5, 1963. See supra note 7 and accompanying text. However, the Environmental Administration at the vice ministerial level was not established until December 28, 1979. See CHONG MU CHEO, HISTORICAL CHANGE OF GOVERNMENT ORGANIZATION 127 (1987).

(24) Law No. 3078 of Dec. 31, 1977 (S. Korea). See generally Joseph S. Cha, Complying with International Standards for Environmental Protection: A Case Study of South Korea 39-44 (1994) (unpublished paper for the International Environmental Law Clinic, New York University School of Law) (on file with author).

(25) Ferris, supra note 6, at 162 (quoting Dong-Gun Byun, Development and Environment in Less Developed Countries: With Special Emphasis on the Economic Growth vs. Environmental Problems in Korea 246 (1983) (unpublished Ph.D. dissertation, State University of New York (Buffalo))).

(26) S. KOREA CONST. art. 35; see infra text accompanying note 37.

(27) Park, supra note 14, at 32-33.

(28) Ferris, supra note 6, at 162. The primary cause of EA's political ineffectiveness was "its status as a subordinate division of the Ministry of Health and Social Affairs (MHSA)." Id.

(29) Korea, along with Japan, has experienced "a large increase in the scope and complexity" of its environmental laws. Ruppert, supra note 18, at 28.

(30) Tae Hee Lee, Environmental Law of South Korea, in J. ANDREW SCHLICKMAN ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND REGULATION [sections] 1.2 S.Kor-5 (Nicholas A. Robinson ed., Michie 1995) (1991).

(31) Framework Act on Environmental Policy, Law No. 4257 of Aug. 1, 1990 (S. Korea).

(32) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1994 & Supp. III 1997).

(33) BEPA not only provides basic policy foundations for environmental protection, but also clarifies principles and basic policy directions for the nation's environmental preservation goals. 1997 ENVIRONMENTAL PROTECTION IN KOREA, supra note 8, at 45. Notably, BEPA imported the environmental impact assessment system from the United States. Other statutes govern specific areas of the environment according to the objectives of BEPA. Id.

(34) The Ministry of Environment (MOE) is presently comprised of internal bureaus that delegate most environmental duties to various regional subunits, which are in turn subdivided into departments. The Korean government has made efforts to reorganize both the executive branch and certain ministries in order to facilitate consensus building and cooperation in solving environmental problems. For a detailed description of MOE's organization, see id. at 39-46.

(35) Currently, MOE primarily enforces environmental legislation. While much responsibility is delegated to regional offices and local governments, MOE retains general jurisdiction over all environmental issues. MOE has the authority to publish administrative rules to aid in the interpretation of environmental laws. "Despite this nominal overall responsibility, specific environmental responsibility is still distributed among different ministries." Ferris, supra note 6, at 163. This necessitates interministerial coordination through committees when problems arise needing interministerial consultation. Id. For a description of Korean governmental efforts to implement environmental laws, see generally Julie Cheung, Implementation and Enforcement of CITES: An Assessment of Tiger and Rhinoceros Conservation Policy in Asia, 5 PAC. RIM L. & POL'Y J. 125, 142-43 (1995); Tae Hee Lee, supra note 30, [sections] 3.2 S.Kor-22 to -24.

(36) The prime law ordaining the government structure of Korea is the Government Organization Act, Law No. 5529 of Feb. 28, 1998 (S. Korea). For more information on the organization of EA, see 1997 ENVIRONMENTAL PROTECTION IN KOREA, supra note 8, at 105-07. For the historical development and present conditions of the environmental agency, see 1998 ENVIRONMENTAL WHITE BOOK, supra note 3, at 20-21.

(37) S. KOREA CONST. art. 35.

(38) See, e.g., Dae-bup-won [DBW] [Supreme Court] 94 ma 2218 (May 23, 1995) (S. Korea); DBW 95 da 23378 (Sept. 15, 1995) (S. Korea); DBW 96 da 56153 (July 22, 1997) (S. Korea). In these decisions, the Supreme Court of Korea held that the right to a healthy and pleasant environment is not self-executing. In order for this right to be acknowledged as a right to be exercised as a matter of private law, the right's owners, counterparties, content, and means of exercise must be explicitly identified by statutory provisions and supported by "jori"--the application of natural reason, an innate sense of justice, and dictates of conscience. DBW 94 ma 2218.

(39) Park, supra note 14, at 33.

(40) Law No. 4257 of Aug. 1, 1990, arts. 7, 31, 4 (S. Korea).

(41) Id. art. 4.

(42) According to one author, these new media-based laws "have begun to address environmental concerns on a more sophisticated level." Ruppert, supra note 18, at 29.

(43) Law No. 4262 of Feb. 1, 1991, amended by Law No. 5454 of Dec. 13, 1997 (S. Korea). AEPA regulates the emission of pollutants and odor into the air.

(44) Law No. 4260 of Feb. 1, 1991, amended by Law No. 5454 of Dec. 13, 1997 (S. Korea). WEPA regulates effluents released into surface waters. WEPA does not regulate groundwater contamination, which is regulated by BEPA.

(45) Law No. 4259 of Feb. 1, 1991, amended by Law No. 5454 of Dec. 13, 1997 (S. Korea). NVCA regulates levels of noise and vibration.

(46) Law No. 4363 of Mar. 8, 1991, amended by Law No. 5529 of Feb. 28, 1998 (S. Korea). WMA governs the generation and discharge of solid waste. WMA divides solid waste into two categories: "business place wastes" and "domestic wastes." Business place waste is subject to regulation by the central government, while local governments are responsible for regulating domestic waste.

(47) Law No. 5221 of Dec. 30, 1996, amended by Law No. 5453 of Dec. 13, 1997 (S. Korea). TCCA regulates the manufacture, transportation, and importation of virtually all chemicals, whether harmful or not.

(48) Law No. 4567 of June 11, 1993, amended by Law No. 5454 of Dec. 13, 1997 (S. Korea). The environmental impact assessment (EIA) mechanism was initially introduced by BEPA. The new EIAA expands the existing EIA mechanism by incorporating more specific provisions.

(49) Law No. 4906 of Jan. 5, 1995 (S. Korea).

(50) As of March 12, 1998, there were 27 environmental statutes under the jurisdiction of MOE. 1998 ENVIRONMENTAL WHITE BOOK, supra note 3, at 27-37, 573-76; see also 1997 ENVIRONMENTAL PROTECTION IN KOREA, supra note 8, at 44. A new statute, the Act Relating to Han River Watershed Water Quality Improvement and Local Community Support, Law No. 5932 of Feb. 8, 1999 (S. Korea), was recently enacted, bringing the total up to 28.

(51) S. KOREA CONST. arts. 75, 95.

(52) See 1997 ENVIRONMENTAL WHITE PAPERS, supra note 19, at 422, 430, 467, 503, and 614 for trends in the fields of air pollution, traffic pollution, wastewater, and toxic chemicals control.

(53) Ferris, supra note 6, at 163; see also South Korea, 13 Int'l Env't Rep. (BNA) 59 (Nov. 1990) (stating that the Korean government "hope[d] to pre-empt any possible attempts by social activists and a feisty parliamentary opposition from taking up the cudgels on the environment issue").

(54) Ferris, supra note 6, at 165. The public environmental movement developed in the 1980s "from a set of localized organizations to a more `militant and organized' movement with important links to labor and peace groups." Id. (quoting Seong Dun Lee, South Korea: A Case of Environmental Doom, KOREA REP., Winter 1992-93, at 10,131). The citizen environmental movement has influenced the business conglomerates, called "the chaebols," to begin importation of pollution control equipment and to increase spending on environmental projects. Id. at 165-66.

(55) Id. at 164.

(56) In 1991, phenol leaked into the Nakdong River; underwater pipes carrying phenol from a factory to a holding tank burst and eventually polluted the water supply of residential areas. The alleged result was an increased number of miscarriages among pregnant women as well as an increase in the number of voluntary abortions performed for fear of birth defects. In this case, the responsible company paid more than 20 billion won (approximately $25 million), which only accounted for the cost of cleanup of the river. This amount did not include damages for the victims. Park, supra note 14, at 38.

(57) Id. Environmental activism by the public has increased tremendously in the past decade. According to Sang-Yeol Park, a practitioner focusing on environmental law, foreign corporations in certain circumstances have been unable to proceed with business plans because of environmentally-related public opposition. For example, a major United States corporation's plan to build a plant to produce titanium dioxide was delayed when local residents clamorously opposed the new plant. Id.

(58) The threat of civil liability is both real and substantial. See, e.g., supra note 56.

(59) Ferris, supra note 6, at 162.

(60) There are two reasons for the continuing emphasis on the environment since 1990. First, an institutional reason: before 1990 there was no independent environmental agency. EA at the vice ministerial level was subordinate to the Ministry of Health and Society. In January 1990, MOE, at the ministerial level, was established to replace EA. See supra note 34 and accompanying text. After this, MOE began to take vigorous charge of the affairs concerning the preservation of the natural environment and the prevention of environmental pollution. Second, the number of environmental disasters such as the accidental dumping of phenol in the Nakdong river by Doosan Electronics in 1991 caused serious and expansive environmental harm in the southern part of Korea. See supra notes 17, 56 and accompanying text.

(61) See EDER, supra note 16, at 135-53; see also Nbo Joon-hun, Environmental Diplomacy Deserves Recognition to Fulfill Global Role, KOREA TIMES, Mar. 17, 1991, at 3.

(62) Michael Hirsh et al., Seoul Calls for Help, NEWSWEEK, Dec. 1, 1997, at 34-37.

(63) See supra note 38 and accompanying text.

(64) Law No. 5866 of Feb. 8, 1999 (S. Korea).

(65) See Dae-bup-won [DBW] [Supreme Court] 95 da 23378 (Sept. 15, 1995) (S. Korea); DBW 96 da 56153 (July 22, 1997) (S. Korea). As of now, Korea has no comprehensive legal theory like the public trust doctrine that successfully functions to protect valuable natural resources in the United States. Furthermore, as has been previously stated, the constitutional right to a clean environment is not self-executing. Therefore, a special statute must be enacted in order to protect certain natural resources. Without a specific statute, the Korean people have no alternative but to resort to property claims.

(66) Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153-57 (1970) (discarding "legal interest" test in favor of "zone of interest" test).

(67) See Dae-bup-won [DBW] [Supreme Court] 94 nu 14544 (Sept. 26, 1995) (S. Korea); DBW 94 nu 14148 (Oct. 17, 1995) (S. Korea); DBW 96 da 56153 (July 22, 1997) (S. Korea); DBW 97 nu 19571 (Sept. 22, 1998) (S. Korea).

(68) Administrative Litigation Act, Law No. 3754 of Dec. 15, 1984, amended by Law No. 4770 of July 27, 1994, arts. 2, 12 (S. Korea).

(69) Law No. 5241 of Dec. 31, 1996 (S. Korea).

(70) Law No. 5242 of Dec. 31, 1996 (S. Korea).

(71) See Joon-Hyun Hong, Present Conditions Concerning Mass Dispute and Problem of Its Settlement, 12 LAW & SOCIETY [KOREA] 16-45 (1995); Yun Chang Gu, Reviewing Civil Remedies for Environmental Protection, 10 ENVTL L. REV. [KOREA] 151-79 (1991).

(72) For the Japanese experience, see Shiro Kawashima, A Survey of Environmental Law and Policy in Japan, 20 N.C.J. INT'L L. & COM. REG. 231, 261-71 (1995).

(73) Because Korea is a civil law country, the Korean legal system does not have the concept of equity. This plays a crucial role in courts forming hostile attitudes toward injunctive relief. As a matter of fact, the Korean courts seldom grant permanent injunctions against large-scale corporate or governmental projects for environmental reasons.

(74) Sang-Hyun Song, The Roles of Judges in Korea, in KOREAN LAW IN THE GLOBAL ECONOMY 300--05 (Sang-Hyun Song ed. 1996).

APPENDIX

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HONG SIK CHO, Faculty of Law, Seoul National University (SNU) College of Law, Seoul, Korea; Member of the Korean Bar Association and the New York State Bar Association; Judge, Pusan District Court, Korea 1989-1991; Visiting Scholar, University of California, Berkeley, Boalt Hall School of Law, 1996; J.S.D. 1995, University of California, Berkeley, Boalt Hall School of Law; LL.M. 1995, University of California, Berkeley, Boalt Hall School of Law; LL.B. 1987, SNU College of Law. This essay reflects a revised version of my remarks at a panel discussion on "Law and the Environment at Home and Abroad" held at Berkeley on April 6, 1998. I would like to give special thanks to Professor David Caron, who was instrumental in steering me toward the issues touched upon in this article and for inviting me to the panel discussion. I also wish to thank Young Chul Eddie Dhong and Leslie Wells for their helpful comments and useful editorial suggestions.