第十九章：捧著金飯碗的乞丐公主與王子
公民參與
註腳
【1】 劉靜怡，當佔領變成青年的唯一選擇，蘋果日報，2014年3月21日，http://www.appledaily.com.tw/realtimenews/article/new/20140321/363812/（最後瀏覽日：2016年4月15日）。
【2】 劉靜怡，「身分」不明讓食品安全失控，蘋果日報，2014年10月17日，http://www.appledaily.com.tw/realtimenews/article/new/20141017/489268/（最後瀏覽日；2016年4月15日）。
【3】 反服貿立院抗爭傳單，「服貿協議」審查爭議程序部分，法律Q&A，http://occupy-ly-flyer.tumblr.com/post/80338645004/legal-qa（最後瀏覽日：2016年5月15日）。
【4】 行政程序法第150條：「本法所稱法規命令，係指行政機關基於法律授權，對多數不特定人民就一般事項所作抽象之對外發生法律效果之規定。法規命令之內容應明列其法律授權之依據，並不得逾越法律授權之範圍與立法精神。」。
【6】 即時新聞/綜合報導，保障食品安全！蔡英文要用「食安五環」把關，自由時報，2015年10月15日，http://news.ltn.com.tw/news/politics/breakingnews/1476221（最後瀏覽日：2016年5月15日）。
【7】 OMB Watch, Background on the Rulemaking Process, http://www.foreffectivegov.org/files/regs/rcenter/backgroundpdfs/I.-V..pdf
(last visited May 20, 2016) (“The regulatory process is unfamiliar to the
general public and these agencies are largely unknown. Regulatory issues tend
to be technical, detailed, and complex-everything that makes them unappealing
topics for the press and public. And yet we are governed by regulations
everyday: the standards for drinking water, home cleaning products, cars and
trucks (and their parts) and public transportation, the carpeting and flooring
in our homes and offices, the safety of electricity usage, and for much more.
The work of federal agencies is critically important.”).
【8】 Ralph Jennings, Taiwan’s Year of Deadly Disasters: The Real Damon,
Forbes, July 01, 2015, http://www.forbes.com/sites/ralphjennings/2015/07/01/taiwans-year-of-deadly-disasters-the-real-demon/
(last visited May 07, 2016).
【9】 Steven Croley, White House
Review of Agency Rulemaking: An empirical Investigation, 70 U. Chi. L. Rev. 821, 824-25 (2003) (“In
early 1981, President Ronald Reagan issued his famous Executive Order number
12291. Among other things, Executive Order required agencies to submit to the
Director of the Office of Management and Budget (“OMB”) a “Regulatory Impact
Analysis” for all of their “major” rules. Executive Order 12291 defines “major”
rules as any rule likely to (1) have an annual
effect on the economy of $100 million or more; (2) impose a major increase in
costs or prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or (3) have a significant adverse
effects on competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.”).
【10】Id. at
825 (“For such rules, agencies’ regulatory impact analyses had provided an
assessment of the costs and benefits, a calculation of a rule’s net benefits,
and a description of alternative courses of action that might achieve the same
regulatory goal together with an explanation of the reasons why those
alternatives, if cheaper, could not legally adopted. Executive Order 12291
further required agencies to submit regulatory impact analyses twice, once
accompanying a given “proposed” form and following the notice-and-comment
period, once again for the pending final version of the same rule.”).
【11】Docket ID: FDA-2014-P-2035, Agency: Food and Drug Administration (FDA),
Parent Agency: Department of
Health and Human Services (HHS), http://www.regulations.gov/#!docketDetail;D=FDA-2014-P-2035 (last visited May 15, 2016).
【12】行政程序法第153條：「受理前條提議之行政機關，應依下列情形分別處理︰一、非主管之事項，依第十七條之規定予以移送。二、依法不得以法規命令規定之事項，附述理由通知原提議者。三、無須訂定法規命令之事項，附述理由通知原提議者。四、有訂定法規命令之必要者，著手研擬草案。」。
【13】Massachusetts
v. EPA, 549 U.S. 497 (U.S. 2007).
【14】Id. (“On October 20, 1999, a group of 19 private
organizations filed a rulemaking petition asking EPA to regulate “greenhouse
gas emissions from new motor vehicles under §202 of the Clean Air Act.”
Petitioners maintained that 1998 was the “warmest year on record”; that carbon
dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping
greenhouse gases”; that greenhouse gas emissions have significantly accelerated
climate change; and that the IPCC’s 1995 report warned that “carbon dioxide
remains the most important contributor to [man-made] forcing of climate
change.” The petition further
alleged that climate change will have serious adverse effects on human health
and the environment. As to EPA’s
statutory authority, the petition observed that the agency itself had already
confirmed that it had the power to regulate carbon dioxide. ).
【15】Id. (“Fifteen months after the petition’s submission, EPA
requested public comment on “all the issues raised in [the] petition,” adding a
“particular” request for comments on “any scientific, technical, legal,
economic or other aspect of these issues that may be relevant to EPA’s
consideration of this petition.” 66 Fed. Reg. 7486, 7487 (2001). EPA received
more than 50,000 comments over the next five months. See 68 Fed. Reg. 52924
(2003).”).
【16】Id. (“On September 8, 2003, EPA entered an order denying the
rulemaking petition. The agency gave two reasons for its decision: (1) that contrary
to the opinions of its former general counsels, the Clean Air Act does not
authorize EPA to issue mandatory regulations to address global climate change,
and (2) that even if the agency had the authority to set greenhouse gas
emission standards, it would be unwise to do so at this time......The agency
furthermore characterized any EPA regulation of motor-vehicle emissions as a
“piecemeal approach” to climate change, and stated that such regulation would
conflict with the President’s “comprehensive approach” to the problem. That
approach involves additional support for technological innovation, the creation
of nonregulatory programs to encourage voluntary private-sector reductions in
greenhouse gas emissions, and further research on climate change—not actual
regulation. According to EPA,
unilateral EPA regulation of motor-vehicle greenhouse gas emissions might also
hamper the President’s ability to persuade key developing countries to reduce
greenhouse gas emissions.”).
【17】 Id. (“Petitioners,
now joined by intervenor States and local governments, sought review of EPA’s
order in the United States Court of Appeals for the District of Columbia
Circuit. Although each of the three judges on the panel wrote a separate
opinion, two judges agreed “that the EPA Administrator properly exercised his
discretion under §202(a)(1) in denying the petition for rule making.” The court
therefore denied the petition for review.”).
【18】Id. (“The scope of our review of the merits of the statutory
issues is narrow. As we have repeated time and again, an agency has broad
discretion to choose how best to marshal its limited resources and personnel to
carry out its delegated responsibilities.....EPA has refused to comply with
this clear statutory command. Instead, it has offered a laundry list of reasons
not to regulate. For example, EPA said that a number of voluntary executive
branch programs already provide an effective response to the threat of global
warming, that regulating greenhouse
gases might impair the President’s ability to negotiate with “key developing
nations” to reduce emissions, and
that curtailing motor-vehicle emissions would reflect “an inefficient,
piecemeal approach to address the climate change issue,” Although we have neither the expertise
nor the authority to evaluate these policy judgments, it is evident they have
nothing to do with whether greenhouse gas emissions contribute to climate
change. Still less do they amount to a reasoned justification for declining to
form a scientific judgment......In short, EPA has offered no reasoned
explanation for its refusal to decide whether greenhouse gases cause or
contribute to climate change. Its action was therefore “arbitrary, capricious,
… or otherwise not in accordance with law.” We need not and do not reach the
question whether on remand EPA must make an endangerment finding, or whether
policy concerns can inform EPA’s actions in the event that it makes such a
finding. We hold only that EPA must
ground its reasons for action or inaction in the statute.”).
【19】JUSTIA, Rulemaking /Writing Agency Regulations,
https://www.justia.com/administrative-law/rulemaking-writing-agency-regulations/
(last visited May 20, 2016).
【20】U.S. v. Florida East Coast Ry. Co., 410 U.S. 224,
234 (1973) (“In United States
v. Allegheny-Ludlum Steel Corp., supra, we held
that the language of s 1(14)(a) of the Interstate Commerce Act authorizing the
Commission to act ‘after hearing’ was not the equivalent of a requirement that
a rule be made ‘on the record after opportunity for an agency hearing’ as the
latter term is used in s 553(c) of the Administrative Procedure Act. Since the 1966
amendment to s 1(14)(a), under which the Commission was here proceeding, does not by its
terms add to the hearing requirement contained in the earlier language, the
same result should obtain here unless that amendment contains language that is
tantamount to such a requirement.”); See
Scott Rafferty, Section News and Event, 35-SUM Admin. & Reg. L. News 20, 21
(2010) (“Professor Jeffrey Lubbers of Washington
College of Law observed that, except for rate cases,
Congress has all but eliminated formal rulemaking…The Magnuson-Moss Act required the FTC to use special
procedures with built-in time lags, causing some rulemakings … to last almost a
decade. Where Congress has provided exemptions, the FTC has obtained public
input and completed significant rulemakings within 4-7 months.”).
【21】 Connecticut Light and Power Co. v. Nuclear Regulatory Comm’n, 673
F2d. 525, 531 (D.C. Cir. 1982) (“The purpose of
the comment period is to allow interested members of the public to communicate
information, concerns, and criticisms to the agency during the rule-making
process. If the notice of proposed rule-making fails to provide an accurate
picture of the reasoning that has led the agency to the proposed rule,
interested parties will not be able to comment meaningfully upon the agency's
proposals. As a result, the agency may operate with a one-sided or mistaken
picture of the issues at stake in a rule-making. In order to allow for useful
criticism, it is especially important for the agency to identify and make
available technical studies and data that it has employed in reaching the
decisions to propose particular rules.”).
【22】MCI Telecomm’n Corp. v. F.C.C., 57 F.3d 1136, 1142 (D.C. Cir. 1995) (“[A]n agency
may not turn the provision of notice into a bureaucratic game of hide and
seek.”).
【23】State of Maine, Guide to Rule-making, http://www.maine.gov/sos/cec/rules/guide.html#public
(last visited May 20, 2016) (“Interested persons
may also submit comments at a public hearing. When required by other statutes
or when requested by 5 persons, an agency must hold a hearing on its proposed
rules (5 MRSA sec. 8052 sub-sec. 1). The A.P.A. itself does not otherwise
require a hearing; however, an agency always may hold one if it wishes. Since
public access and input are major goals of the law, a hearing may be a very useful
method of informing and educating the public and for receiving public
response.”).
【24】Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385, 1400 (1992) (explaining
that “basis and purpose” of rule is understood to mean the Agency’s findings of
fact and policy judgments).
【25】Mark Seidenfeld, Demystifying
Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice
and Comment Rulemaking, 75
Tex. L. Rev. 483, 498-99 (1997) (“To the extent the hard look doctrine has imparted any
message to agencies, it is that agencies must collect data and provide analyses
to support their rejection of every reasonable alternative
to the approach they took and to respond to every plausible argument against
their approach.”).
【26】Auto. Parts & Accessories Ass’n v. Boyd, 407
F.2d 330, 338 (D.C. Cir. 1968) (“[T]he ‘concise
general statement of basis and purpose’ … will enable us to see what major
issues of policy were ventilated by the informal proceedings and why the agency
reacted to them as it did.”).
【27】Portland Cement Assoc. v. Ruckelshaus, 486 F.2d
375, 393 (D.C. Cir. 1973) (“We are not
establishing any broad principle that EPA must respond to every comment made by
manufacturers on the validity of its standards or the methodology and
scientific basis for their formulation.”).
【28】Id. at
394-95 (“ Manufacturers' comments must be significant enough to
step over a threshold requirement of materiality before any lack of agency
response or consideration becomes of concern. The comment cannot merely state
that a particular mistake was made in a sampling operation; it must show why
the mistake was of possible significance in the results of the test.”).
【29】Michael Ray Harris, Standing in the Way of
Judicial Review: Assertion of the Deliberative Process Privilege in APA Cases,
53 St. Louis U. L.J. 349, 370
(2009) (“In the years leading up to October 19,
1929, the American economy was a dichotomy. On one hand, the corporate world was
booming in the 1920s. On the other hand, neither the working class nor farmers
appeared to improve their economic conditions to “any substantial degree in the
ten years preceding 1929.”).
【30】Id. at
374 (“As the New Deal progressed under the leadership
of Roosevelt, a large number of administrative agencies came into being with
the blessing of Congress. These agencies were given enormous legal power to
interpret and execute often intricate new laws.”); Alexander Dill, Scope
of Review of Rulemaking After Chadha: A Case for the Delegation Doctrine?,
33 Emory L.J. 953, 953 (1984) (“[S]ince their widespread introduction during the New
Deal, federal administrative agencies have played an increasingly important
role in developing and implementing congressional policies in various areas of
national concern. Congress has routinely granted broad discretionary authority
to agencies in order to accord them the flexibility necessary in highly
technical areas of regulation such as nuclear energy and environmental health,
as well as in areas of economic regulation such as banking and corporate
securities ....”).
【31】See Robert L. Rabin, Federal
Regulation in Historical Perspective, 38 Stan.
L. Rev. 1189, 1263 (1986) (“The immediate
consequence was a barrage of criticism, emanating in part from the American Bar
Association, over the inadequacies of agency procedure and the limitations of
judicial review.”).
【32】Cass R. Sunstein, Law and Administration After Chevron, 90 Colum.
L. Rev. 2071, 2072 (1990) (stating that the
New Deal reformers sought new institutions better capable of handling modern
problems).
【33】Harris, supra
note 29, at 353 (“It was this steadfast view in
the early 1940s--that a system of checks and balances is an indispensable
constraint on administrative power--that helped give rise to the APA in
1946.”).
【34】Michael Asimow, The Influence
of the Federal Administrative Procedure Act on California's New Administrative
Procedure Act, 32 Tulsa L.J. 297, 297 (1986) (“[T]he APA prescribes the manner in which countless
thousands of federal adjudicatory and rulemaking proceedings are conducted each
year. In that sense, the APA has achieved quasi-constitutional status.”).
【35】Harris, supra
note 29, at 353 (“[I]t is important to see the APA
as the modern embodiment of the quintessential American system of checks and
balances among the three branches of government.”).
【36】5 U.S.C. § 706 (2002) (“To the extent necessary,
the reviewing court shall decide all relevant questions of law, [and] interpret
constitutional and statutory provisions. . . .”).
【37】Id.
【38】Id.
(authorizing courts to “compel agency action unlawfully withheld or
unreasonably delayed.”); see also Cass R. Sunstien, Section 1983 and the Private Enforcement of
Federal Law, 49 U. Chi. L. Rev.
394, 433 n.149 (1982) (“[T]he APA is generally
regarded as creating a right to seek judicial oversight of allegedly unlawful
agency inaction”).
【39】Id. at §
551; Administrative Conference of the United States, “Ex parte” communications in informal rulemaking, https://www.acus.gov/recommendation/ex-parte-communications-informal-rulemaking
(last visited May 20, 2016).
【40】行政程序法第47條：「公務員在行政程序中，除基於職務上之必要外，不得與當事人或代表其利益之人為行政程序外之接觸。公務員與當事人或代表其利益之人為行政程序外之接觸時，應將所有往來之書面文件附卷，並對其他當事人公開。前項接觸非以書面為之者，應作成書面紀錄，載明接觸對象、時間、地點及內容。」。
【41】Joshua K. Westmoreland, Global Warming and Originalism: The Role of the EPA in the Obama
Administration, 37 B.C. Envtl. Aff.
L. Rev. 225, 243 (2010) (“Congress passed the Administrative Procedure Act (APA)
in 1946, designing it to function as the bill of rights for the new regulatory
state.”).
【42】Patricia Ross McCubbin, The Risk in Technology-based Standards, 16 Duke Envtl. L. & Pol’y F., 1, 23-24 (2005) (“The Administrative Procedure Act is designed to ensure
the accountability of unelected agency officials by requiring all rulemakings
to be transparent to the citizenry, the President, Congress, and reviewing
courts, thus facilitating the political and judicial oversight necessary to
prevent an agency from violating the mandates of its governing statute or from
abusing the discretion left to it by the legislature.”).
【43】Principle 10 First Sentence: Environmental issues
are best handled with participation of all concerned citizens, at the relevant
level.
【44】Principle 10: At the national level, each
individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the opportunity to
participate in decision-making processes. States shall facilitate and encourage
public awareness and participation by making information widely available. Effective
access to judicial and administrative proceedings, including redress and
remedy, shall be provided.
【45】Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in Environmental Matters
(“Links environmental rights and human rights. Acknowledges that we owe an
obligation to future generations. Establishes that sustainable development can
be achieved only through the involvement of all stakeholders. Links government
accountability and environmental protection.”).
【46】最高行政法院93年裁字第385號裁定。
【47】Culvert Cliffs Coordinating Committee v. U. S.
Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971).
【48】Id. at
1111 (“These cases are only the beginning of what promises to become a flood of
new litigation-litigation seeking judicial assistance in protecting our natural
environment. Several recently enacted statutes attest to the commitment of the
Government to control, at long last, the destructive engine of material
“progress.” But it remains to be
seen whether the promise of this legislation will become a reality. Therein
lies the judicial role … Our duty … is to see that important legislative
purposes, heralded in the halls of Congress, are not lost or misdirected in the
vast hallways of the federal bureaucracy.”).
【49】蔡志揚，環境影響評估訴訟的「門戶開放」─近年行政法院環評訴訟實務變遷趨勢分析，技師報，2009年10月31日。
【50】同上。高雄高等行政法院90年度訴字第1869、1904號裁定（本件被告對環境影響說明書所為之審查結論，乃行政機關在實施行政程序之過程中以達成實體裁決為目的之相關行為，屬程序行為（內部行為），而非終局的裁決，開發行為最終准駁之權限係在目的事業主管機關，被告對環境影響說明書所為審查結論，僅提供目的事業主管機關裁量核准與否之內部參考，並未對外直接發生法律效果，自非屬行政處分）；最高行政法院92年度裁字第519號裁定（惟查本件系爭雲林縣ＢＯＯ垃圾焚化廠興建營運計畫環境影響說明書審查會審查結論謂：本案有條件通過環境影響評估審查，開發單位應依下列（一）至（十八）事項辦理，此有第二次審查會議記錄在卷可稽。經查其或係垃圾車輛經過地區應如何確保社區或校區之環境品質，或為有毒危害性污染物之防制及監測規定，難謂不具法律效果…此項審查結論，難謂對開發單位不具拘束力，原裁定認其未對外直接發生法律效果，非屬行政處分云云，自有違誤。應認抗告為有理由。且有由原法院調查後更為裁定之必要，爰為裁定如主文）。
【51】行政訴訟法第9條：「人民為維護公益，就無關自己權利及法律上利益之事項，對於行政機關之違法行為，得提起行政訴訟。但以法律有特別規定者為限。」。
【52】立法院公報第八十四卷、第十九期，頁491。
【53】同上。
【57】自己的服貿自己審，http://review-fumao.logdown.com/posts/190929-why-do-we-bother-to-watch-mast-public-hearings（最後瀏覽日：2016年6月9日）。
【58】同上。
【60】陳彥廷，服貿公聽會 學者激辯國安疑慮，自由時報，2013年10月25日，https://tw.news.yahoo.com/%E6%9C%8D%E8%B2%BF%E5%85%AC%E8%81%BD%E6%9C%83-%E5%AD%B8%E8%80%85%E6%BF%80%E8%BE%AF%E5%9C%8B%E5%AE%89%E7%96%91%E6%85%AE-221044537.html（最後瀏覽日：2016年5月15日）。
【61】服貿第九場公聽會中華經濟研究院WTO及RTA中心李淳副執行長發言，2014年3月29日，http://fumao-hearing.logdown.com/posts/191255（最後瀏覽日：2016年4月23日）。
【62】朱淑娟，國光石化第4次審查未過 補件再審，環境報導，2011年1月27日，http://shuchuan7.blogspot.tw/2011/01/blog-post_27.html（最後瀏覽日：2016年5月15日）。
【63】松菸公園催生聯盟，無恥的大巨蛋環評，扼殺台北第二座森林公園的劊子手，2011年5月26日，http://reader.roodo.com/getoutdome/archives/15712545.html（最後瀏覽日：2016年5月15日）。
【64】Bipartisan Congressional Trade Priority Act, H.R.
3830 (“(d) (3) CONTENT.—The guidelines developed under paragraph (1) shall
include procedures that—(A) provide for rapid disclosure of information in
forms that the public can readily find and use; and (B) provide frequent
opportunities for public input through Federal Register requests for comment
and other means.”).
【65】Bipartisan
Congressional Trade Priorities and Accountability Act of 2015.
【66】Id.
(“For example, the legislation requires the USTR to develop guidelines for
enhanced consultation with the public and to provide these guidelines no later
than 120 calendar days after the legislation’s entry into effect. The
legislation also requires the USTR to develop guidelines on consultations with
the private sector advisory committees no later than 120 days after the
legislation’s entry into effect. The President also would be required to make
public other mandated reports on the impact of future trade agreements on the
environment, employment, and labor rights in the United States”).
【67】Id (“(1)
GUIDELINES FOR PUBLIC ENGAGEMENT.—The United States Trade Representative, in
consultation with the chairmen and the ranking members of the Committee on Ways
and Means of the House of Representatives and the Committee on Finance of the
Senate, respectively—(A) shall, not later than 120 days after the date of the
enactment of this Act, develop written guidelines on public access to
information regarding negotiations conducted under this title; and (B) may make
such revisions to the guidelines as may be necessary from time to time. (2)
PURPOSES.—The guidelines developed under paragraph (1) shall—(A) facilitate
transparency; (B) encourage public participation; and (C) promote collaboration
in the negotiation process. (3) CONTENT.—The guidelines developed under
paragraph (1) shall include procedures that—(A) provide for rapid disclosure of
information in forms that the public can readily find and use; and (B) provide
frequent opportunities for public input through Federal Register requests for
comment and other Means.”); Guidelines for Consultation and Engagement Office
of the United States Trade Representative, October 27, 2015 (“USTR will issue
Federal Register notices for every trade agreement under negotiation
encouraging interested members of the public to submit comments,
recommendations, or concerns they may have to inform U.S. positions and
strategies in that negotiation...USTR will solicit additional public comment as
needed if significant new issues arise in connection with a trade
negotiation....To maximize public input and exchange, USTR will arrange and
host public hearings. These hearings will serve as a forum for receipt of
public comments by senior USTR officials and for meaningful exchanges of
views.”).
【68】李作珩，換個位子換了腦袋？一次看懂民進黨版兩岸監督條例6大爭議，關鍵評論，2016年4月13日，http://www.thenewslens.com/post/310996/（最後瀏覽日：2016年4月23日）；蕭長展、洪國鈞、王希、寧欣、謝繐吟，民進黨版兩岸監督條例——監督強度五大考驗！，沃草，2016年4月15日，https://musou.tw/focuses/1135（最後瀏覽日：2016年4月23 日）。
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