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Environmental Law Review


Content of Issue1

Feature Article

Research on the Characteristics of Environmental Legal Relationship                         

                                                                                                                                          Lyu Zhongmei (3)

Environmental Public Interest is the Core of the Development of Environmental Public Interest Litigation                                                                                                                                                  

                                                                                                                                            Cai Shouqiu (22)

Actual Challenges, System Responses and Future Trends of the Revising of Environmental Protection Law                                                                                                                                              

                                                                                                                                         Yang Zhaofei (45)

Efforts to Improve the Legal Protection of Environmental Governance: Research Review of the Revision of Environmental Protection Law                                                                                                

                                                                                                                                                  Wang Xi (67)

 

Cutting-edge Theory

The Historical Origin and Normative Significance of Constitutional Obligations of Citizens’ Environmental Protection                        

                                                                                                                                         Chen Haisong (97)

The Polluter-Pays Principle and its Implications for Environmental Governance in China                                                                                                                                                                

                                                                                                                                   Alexander Zahar (115)

The Environmental Pollution Crime from the Perspective of Environmental Ethics: Concurrently Discuss the Development of the Non-Anthropocentrism Criminal Legal View                                           

                                                                                                                            Zhu Xiao; Xiao Peng (140)

Hot topics

Citizen suit of water pollution control in the United States and its enlightenment

                                                                                                                                            Li Chunlin (171)

The Development and Enlightenment of Water Protection Supervision Mechanism and Governance notion in German

                                                                                            Shen Baixin, Wolfgang Koeck [German] (198)

Empirical Research of Environmental Public Interest Litigation

An empirical review on the development of Environmental Public Interest Litigation: Take 208 environmental public interest litigation cases accepted in 2015 and 2016 as samples                                                                                                                                              

                                                                                                     Zhang Zhongmin, Huang Jianyong (219)

Overview of social organizations' environmental public interest litigation in 2016 and suggestions for system development          

                                                                                                      Ge Feng, Wang Qi, Ma Rongzhen (248)

 

Translation Collection 

Review of Symposium

Environmental interests under the rule of law: Origin, status quo and prospect

--a review of Wuhan University's “Doctoral Forum on environmental law in 2017”

                                                                                                                                        Fan Xingjia (337)



Abstracts of Issue1 

Research on the Characteristics of Environmental Legal Relationship  

 Lyu Zhongmei

Abstract

“Legal relationships” is a theoretical concept and is the “largest common divisor” in legal knowledge. Environmental legal relationship is the basic category of environmental law, which is different from the traditional legal relationships. The environmental legal relationship is based on the environmental legal norms and is the interaction among subjects where environment acts as medium, it has the nature of both universality and complexity. The core of environmental legal relationship theory lies in reconstructing the relationship between subject and object, acknowledging that the object has a certain subjectivity, and its scope is not limited to the “object” in traditional legal relationships, but is the "environmental resource" with certain self-value and subject equality. Environmental legal relationships include pollution prevention legal relationships and ecological protection legal relationships, equal-rights environmental legal relationships and subordinate environmental legal relationships, absolute environmental legal relationships and relative environmental legal relationships, abstract environmental legal relationships and concrete environmental legal relationships.


Environmental Public Interest is the Core of the Development of Environmental Public Interest Litigation  

Cai Shouqiu

Abstract

Environmental interest is a non-exclusive interest named after the object of interest. Environmental public interest means that the environment is a kind of public interest or a carrier for public interest, and environmental protection is a kind of public interest activity or public interest undertaking. Basic consensus has been reached on this. Environmental public interest has the characteristics of indefiniteness of the number of subjects, non-excludability of the nature of objects (entirety and relevance and indivisibility), and the common enjoyment (or mutual benefit, common need) of interest subjects using interest objects. Judging from the perspective of environmental resources law, environmental public interest litigation is caused by the environment or environmental public interest as public goods being harmed, or public environmental rights as public rights to use public goods being infringed and the affected subjects of the environmental public interest or the environmental right take legal actions, this is, the lawsuit filed by the public according to law. Environmental public interest has important significance and role for environmental public interest litigation: It is the driving force for the occurrence and development of environmental public interest litigation, it is a guideline for the smooth development of environmental public interest litigation, and it is the key to dealing with various interest relationships in environmental public interest litigation.


Actual Challenges, System Responses and Future Trends of the Revising of Environmental Protection Law  

Yang Zhaofei

Abstract

The environmental legal system is facing with many difficult challenges such as severe environmental conditions, frequent environmental group events, unbalanced environmental equity, and imperfect environmental regulations. In view of this, the newly revised Environmental Protection Law has achieved institutional innovation and provided a legal basis for the environmental quality accountability system of the local governments, the supervisory and regulatory measures aiming at low illegal costs, the policies dealing with the low price of environment and resources, and the environmental social governance system, which also has emphasized the need to rely on technological innovation to solve environmental problems. In the future, the policy direction of the environmental legal system should be to change government functions, distinguish between two different types of pollutant discharge behaviors, sort out the historical issues left over from environmental monitoring once and for all, strictly enforce liability for pollution damages, change the exit mechanism of heavily polluting enterprises and the awareness and methods of environmental law enforcement, establish a variety of financial mechanisms for environmental risk prevention, compensation and rehabilitation, etc. based on the preconditions of the rule of law and market mechanisms. In addition, international experience should be appropriately drawn on in combination with national conditions.


Efforts to Improve the Legal System of Environmental Process: Research Review of the Revision of Environmental Protection Law

Wang xi

Abstract

The author and his research team members participated in the research on legal system sub-projects of the environmental macro-strategic research in China and the “Environmental Protection Law” revision study from 2007 to 2014. Through these two intertwined and mutually beneficial researches, on the one hand, we have provided amendments of “Environmental Protection Law” to the national legislature and relevant departments with revised ideas and proposals centered on regulation and restriction of government environmental behaviors. On the other hand, a number of theoretical achievements with important academic values have been formed, including new breakthroughs in environmental law research aimed at overcoming “government failures” in the field of resources and environment, as well as a new understanding of environmental governance and political economy principles of environmental law, and the conceptual model of China's environmental governance. These two aspects of research results have made important contributions to the construction of China’s environmental legal system from the perspective of application, and have opened new horizons and new methods for the study of environmental law in China at the theoretical level. In these studies, we are becoming “institutional improvers” or “institutionalists” who are highly concerned with the government’s environmental behaviors.


The Historical Origin and Normative Significance of Constitutional Obligations of Citizens’ Environmental Protection

Chen Haisong

Abstract

The citizen's environmental protection obligation is essential to achieve environmental protection goals. However, it may cause excessive violations of civil rights, since it is simply based on the “requirement of environmental protection” and legal provisions to prove the citizens’ environmental protection obligation. In order to avoid the "ecological despotism", it is necessary to justify the argument from the perspective of public law. The citizen's constitutional obligation is an integral part of modern constitution. The environmental protection obligation is the latest "third generation" of constitutional obligation. From the perspective of normative jurisprudence, the citizen's constitutional obligation has no logical and structural correspondence with citizen's environmental rights. Each has its own normative meaning and does not have “consistent of right and obligation”. From the perspective of function, constitutional obligation of citizens’ environmental protection means that citizens’ basic civil rights (property right, freedom right) are subject to certain restrictions due to environmental protection. This is to further explore the specific application of citizens’ environmental protection obligation and its legal (constitutional) boundaries.


The Environmental Pollution Crime from the Perspective of Environmental Ethics—— Concurrently Discuss the Development of the Non-Anthropocentrism Criminal Legal View

Zhu Xiao, Xiao Peng

Abstract

The revision of the environmental pollution crime in “Criminal Law Amendments” (VIII) have caused many theoretical problems, and the key to solve these problems is to clarify the legal interest of the environmental pollution crime. To discern the legal interest of the environmental pollution crime, we should clarify the basic standpoint of environmental ethics of anthropocentrism and non-anthropocentrism. Non-anthropocentrism environmental ethics has advantages in value, and it does not violate the legal theory and the norms of positive law. It should be used as the guiding ideology for judging the legal interest of the environmental pollution crime. Based on this basic position, the legal interest of the environmental pollution crime should include the state's environmental management order and environmental rights. The environmental pollution crime belongs to intentional crime, consequential offense and actual damage offense. The non-anthropocentrism criminal law perspective not only applies to environmental crimes, but also influencing the entire criminal law system. The public security provisions in the Chapter II of the special provisions of criminal law includes environmental safety. The premise that the pollution act constitutes the crime of throwing dangerous substances is the action should be sufficient to cause major environmental damage which is beyond the ability of the environment to recover itself, and caused the specific danger or actual disaster. The above explanation can fill in the punishment gap of environmental pollution crime while maintaining the coordination of the criminal law system.

 

Citizen Suit of Water Pollution Control in the United States and Its Enlightenment

Li Chunlin

Abstract

The history of water pollution control in the United States is relatively long, but little effect has been achieved before Congress promulgated Clean Water Act of 1972 and introduced citizen suit. Compared with citizen suit in Clean Air Act, citizen suit in Clean Water Act has similarities and uniqueness in terms of system design. The incorporation of civil suit system has a revolutionary significance for the prevention and control of water pollution in the United States. It not only effectively promotes water pollution control in the United States by breaking the bilateral mode of the administrative state, but also makes Clean Water Act sufficiently implemented by remolding the traditional law enforcement system in the United States. Also, it has developed Clean Water Act through breaking judicial review’s respect of interpretation of government agencies. In order to strengthen the prevention and control of water pollution in China, it is necessary to take American citizen suit system as a mirror to relocate the basic nature, central purpose, fundamental function, legislative mode, system design and auxiliary support of the environmental public interest litigation system in our country.


An Empirical Review on the Development of Environmental Public Interest Litigation: Take 208 Environmental Public Interest Litigation Cases Accepted in 2015 and 2016 as Samples

Zhang Zhongmin, Huang Jianyong 

Abstract

Through the analysis of 208 environmental public interest litigation cases which have been accepted in 2015 and 2016, it is found that the number of cases is rising but the total amount is not large, the increase of environmental administrative litigation is obvious, the categorization of environmental public interest litigation is insufficient, the environmental civil public interest litigation involves many environmental elements, and the distribution of environmental public interest litigation varies in regions. The number of environmental public interest litigation filed by the procuratorial organs is more than that of the social organizations, and the social organizations as plaintiff have increased. The structure of petition of environmental civil public interest litigation is reasonable. In environmental public interest litigation, the number of special legal persons that became defendants is rising rapidly. The trend from the single defendant to the co defendant is apparent. Pollution and inaction are the main object of litigation. The court has almost supported all claims of plaintiff, and the rate of settlement and conciliation is high. Besides, the trial time was shortened as a whole. For healthy development of environmental public interest litigation, we should scientifically design cause of action of environmental public interest litigation, establish and develop the procedure design of environmental public interest litigation filed by the procuratorial organs, standardize the establishment and management of environmental public interest litigation fund, and clarify the relationship between environmental public interest litigation and ecological damage compensation litigation.

 

Overview of Social Organizations' Environmental Public Interest Litigation in 2016 and Suggestions for System Development

Ge Feng, Wang Qi, Ma Rongzhen 

Abstract

2016 is the second year that social organizations started filing environmental public interest litigation. Compared with 2015, in 2016, social organization environmental public interest litigation has been developed more stably, but some problems have also been presented in practice and shall be solved by developing the legal regime. The paper objectively presents the whole situation of the social organization environmental public interest litigation in 2016, and analyzes the existing problems and puts forward the corresponding suggestions, so that the social organization environmental public interest litigation can maximize the protection of the public interests, and play its due role.