By Amendment to the Constitution, Article 9, Paragraph 2, which provides that “environmental and ecological protection shall be given equal consideration with economic and technological development,” the state is charged with the duty to maintain the living environment and the natural ecology. To put air pollution under control is one of the important undertakings. The enactment of the Air Pollution Control Act is consistent with the purpose embodied in the Constitution. On the principle of “the polluter pays”, the air pollution control fees charged under said Act are fees levied on sources of pollution with the common characteristics of producing air pollution, with the hope of minimizing the air pollution through the function of behavior constraint to be realized by payment of fees. An Air Pollution Control Fund is also established under the competent environmental protection agency with the money so collected to be applied for the exclusive purpose of improving the quality of the air to insure the health of the nation. As the fees are burdens imposed upon nationals with specific legal relation to meet the need of the state for specific policies and are subject to limitations in terms of their application, they are called in jurisprudence theories “special common levies” and are mechanisms widely adopted by modern industrialized nations. Special common levies are different from taxes in that taxes are levied on ordinary citizens to meet the expenditure for the implementation of the government’s regular or special policies and are collected by taxing authorities insofar as the elements for tax payment specifically prescribed by law are met, that all taxes collected are turned in to the National Treasury and that the revenue of taxes may be expended in pursuance of the regular budgetary procedure; whereas special common levies, although different from taxes by nature, are after all monetary burdens imposed on those liable to pay, and as such, the purposes and application of the levies as well as the persons on whom such levies are charged must of course be prescribed by law. It will also be constitutional if such matters are prescribed by administrative ordinances as authorized by law in a specific and unequivocal manner. The so-called specific and unequivocal authorization of law must be judged from the viewpoint of the relevancy as expressed by the enabling statute in its entirety rather than being judged by rigid adherence to the language of any particular provision (see our J.Y. Interpretation No. 394). When read within the context of the Air Pollution Control Act as a whole, the text of Article 10, Paragraph 1, of the Act: “The competent authority at each level of the government shall levy air pollution control fees based on the type of pollutants and quantity of emission from pollution sources”; and Paragraph 2: “The classes of pollution sources and payment of fees as referred to in the preceding paragraph shall be established by the central competent authority upon consultation with other agencies concerned” can hardly be deemed to lack specificity and clarity in the purposes, places and application of the levies as well as the persons on whom such levies are charged. Under the Act, the Environmental Protection Administration under the Executive Yuan promulgated on March 23, 1995, the Rules on the Assessment of Air Pollution Control Fees to supplement the Act. To the extent that the rates and classes of the fees being assessed currently are entered by the competent authority into the Air Pollution Control Fund as an agency budget together with the amounts of anticipated revenue and annual expenditure and incorporated into the general annual budget of the central government as required by the Budget Act and are put under implementation upon adoption by the Legislature, such assessment and the items assessed are based on law and budget and are not in conflict with the Constitution. Nevertheless, there are certain particularities to a budgetary bill that make it different from statutory bills. There are also differences in the key points to be reviewed by the legislature in cases of budgetary bills and statutory bills (See J.Y. Interpretation No. 391). The assessment of air pollution control fees also involves the power of local governments, and the expenditure of the Fund is especially relevant to the local environmental protection work. The provisions of a budgetary bill are by no means comprehensive because such a bill is subject to certain limitations on its form and substance. Thus, the competent authority must endeavor to make review of and improvements to the classification of fees, items of expenditure, etc., in the light of the local conditions and set out by law necessary regulation thereof. It goes without saying that all fees collected by the competent authority must be managed and applied well so as to be consistent with the aim of the environmental protection policy as contemplated by the legislation without any departure from the purposes for which such special common levies are assessed.
What the Air Pollution Control Act is designed to prevent and control are pollution sources that emit air pollutants, including stationary sources of pollution installed at public places and private premises and mobile sources of pollution composed of pollutants emitted by motor vehicles, as explicitly provided by the Act under Articles 8, 23 to 27, and other relevant articles. As mobile air pollutants are not precluded by Article 10 of the Act, mobile pollution sources such as automobiles and motorcycles are undoubtedly included for the purpose of assessment of air pollution control fees. Article 4 of the Rules on the Assessment of Air Pollution Control Fees requiring payment of fees on the basis of the volume of pollutants emitted by mobile sources of pollution in line with the quantity of fuel consumed thereby is reasonable because the emission of pollutants is closely related with the quantity of fuel consumed. And, viewed from the point that both technical and cost issues must be taken into consideration in the implementation of a law, we do not consider said article to be against the purpose of authorization of the law. Even so, it is desirable that the competent authority establishes promptly a periodical inspection system for mobile pollution sources and a system of assessment with more encouraging economic reasons. Since July 1, 1995, the competent authority has been charging fees on fuel consumption only, ignoring other pollutants emitted by stationary pollution sources. This is obviously contrary to the principle of fair payment of common levies based on pollution sources and is apt to lead to the misunderstanding by the general public that collecting common levies for the real purpose of financial revenue is in the guise of behavior constraint. The competent authority must therefore promptly take appropriate actions to make improvements.