Ministry of Government Legislation blocks expanded climate-review enforcement

South Korea's Ministry of Government Legislation has ruled that authorities cannot impose post-management duties under the Environmental Impact Assessment Act on those conducting climate change impact assessments, curbing the enforcement provisions available for the newer review system. Released in an interpretation dated May 6, the decision answered a question from the Ministry of Climate, Energy and Environment about consultations accompanying climate change impact assessments. The ministry said the requirements cannot be incorporated either by an express cross-application or by analogy, because the carbon-neutrality law contains no provision authorizing their use.

Under the Framework Act on Carbon Neutrality and Green Growth to Respond to the Climate Crisis, climate change impact assessments are conducted as part of strategic or regular environmental impact assessments. The process examines how a policy or development project affects climate change and how climate change may affect it, rather than examining environmental impacts alone. It applies to plans and projects, including those with large greenhouse-gas emissions, for which the underlying environmental assessment procedures are required.

The system began in Korea on September 25, 2022, after a one-year grace period following its introduction under the carbon-neutrality law. It was designed to assess climate effects from major national plans and large development projects in advance, encouraging adaptation to the climate crisis and cuts in greenhouse gases. When an agency or project operator requests consultation on its environmental assessment, it must also request consultation on the review of the accompanying climate assessment. Under the law, the minister reviews assessment results and may collect necessary information or request it from project operators when needed.

The Environmental Impact Assessment Act's provisions cited in the query require project operators to follow consultation terms reflected in their project plans and to keep records of implementation at construction sites. They also call for an appointed manager to oversee compliance and notify the Ministry of Climate, Energy and Environment and, where applicable, the approving authority. Separate provisions require operators to investigate a project's environmental effects after construction starts and report both results and necessary preventive measures. If follow-up investigations show steps are needed to prevent environmental harm, operators must promptly notify the ministry and approving authority and take those measures.

The query also covered rules requiring approving authorities to verify whether operators have fulfilled consultation terms, obtain related materials and inspect project sites. Under those rules, authorities undertaking completion inspections must check compliance and notify the ministry, and they can seek a joint confirmation of compliance. Approving authorities can order measures needed to enforce consultation terms, and may halt all or part of a project when an unfulfilled order creates a serious environmental impact. The ministry reviews follow-up investigation results and can hear from experts, commission field inspections, or seek relevant documents from operators or approving authorities.

Despite that framework, the Ministry of Government Legislation said the carbon-neutrality law only directs that climate assessments be included in environmental assessments and reviewed through joint consultation. It does not explicitly say that the post-management provisions of the Environmental Impact Assessment Act apply to climate impact assessment operators, the ministry said. Nor does it set out a duty to inform operators of climate assessment consultation terms before holding them responsible for performing those duties.

The ministry said applying provisions by reference is a legislative technique that needs an explicit clause, with any cross-application confined to provisions named by law. No such clause covers climate assessments, it found, and the difference between environmental and climate reviews also prevents automatic application by analogy. Environmental assessments consider a plan's suitability and likely environmental effects before developing ways to eliminate or reduce harm, whereas climate assessments consider emissions reductions and adaptation measures. The two reviews are separate assessments with different purposes and methods, even when they are completed within the same administrative process.

The requirement to conduct climate review alongside environmental assessments is a procedural combination for administrative convenience and efficiency, not a transfer or consolidation of substantive powers, the ministry said. It said the system's introductory approach was centred on consultation and recommendations, rather than making compliance with consultation terms mandatory or ordering action for failures. Reading the Environmental Impact Assessment Act into the climate assessment system would expand regulation and potential punishment without explicit authority, the interpretation said. Operators that fail to conduct required follow-up environmental impact investigations face penalties under the Environmental Impact Assessment Act, while ignored corrective orders can draw fines. The ministry recommended clearly writing the requirements into the carbon-neutrality law if post-management of climate assessment consultation terms is to follow the Environmental Impact Assessment Act.