Against the Viability of Private Enforcement: Focusing on Korean Environmental Law

Abstract

This essay concerns whether, how much, and under what condition private enforcement can solve the problem caused by under-enforcement of environmental law. Although the policy debate yields no universal conclusion, this essay concludes that the viability of private enforcement depends upon how well its specific design fits the relevant context.

With respect to the design of private enforcement, the following points should be noted. First, the essential question is whether and to what extent private individuals can be allowed to use the judiciary to compel far-reaching changes in society, especially where such changes are directed not at individuals rights but at the publics common interest. Therefore, the question concerns a variety of complicated issues such as the proper role of courts in democratic government, the proper relationship between individuals and the community, and so on. Decisions regarding such issues must derive, at least in part, from a societys common set of ideological or other commitments. This essay argues that the existing enforcement scheme may properly reflect our societys common idea about such issues.

Second, since the cost of private enforcement is higher than it looks, the decision of whether to adopt private enforcement in a particular context requires a pragmatic balancing that is best undertaken not by courts, but by legislatures responsible for the underlying law being enforced. Having said that, this essay claims that the first step to remedy the under-enforcement problem must be to overhaul and realign the existing enforcement scheme. If this step is not sufficient, then let concerned citizens sue the government (not polluters directly) to correct government wrongful actions and inactions. Only concerned citizens in the context of neighborhood claims can detect legal wrongs easily and cheaply with relatively less cost on the existing enforcement scheme. If the Private Attorney

General (PAG) type of private enforcement is chosen, then the government should retain the power to structure private settlement and rewards. Given the current circumstances, this essay concludes that there is little likelihood and less need for the Korean government to adopt the PAG type of private enforcement.