The Breakthrough on the Legality Plight of Environmental Control in China

Article excerpt

Abstract

Due to the particularity of environmental problems, the environmental control of government exists an inherent tense relation of rule-governed and administrative discretion. After confirmed the following two points: Government is not value-neutral during the process of environmental control, the public interest of the environment is not a certainty and objectivity existence, legality plight of environmental control is then appeared in China. The way to breakthrough is that adopts the method of "self-legalization", by adding a large number of democratic factors to gain the legitimacy in the environmental control of modern society.

Key Words: Environmental control; Legitimacy; Self-legalization

After environmental issues become the prominent social issues, the government should experience three periods at environmental control of the formed environmental issues: Environmental control of the first period have the main features of government becoming fully involved and adopting coercive means. In this period, government almost arrange all of the environmental pollution control. This is determined from the obligations of the state which bear the protection of life, health and property of the people away from harm in the whole region. In this period, government has not taken a proactive approach to deal with the environmental issues. Rather, for timely processing of problems, it has not taken the attitude of active prevention. The reason why is because "Modern administrative law and its theory, made the freedom of civil society as the ideal, it focuses on trying to avoid exerting too much interference to civil society and inhibition of citizens freedom. Due to this focus, it has formed the jurisprudence of restrictions to administrative rights launched"1. Based on this, government in the face of environmental control object, that is the source of environmental hazards - encourage companies do not know how to start with this issue, "In the field of free enterprise, suddenly using the precautionary principle will cause a big political difficulties".2 If the government takes the tough measures, it may incur strong opposition from enterprises. Therefore, government hopes to take some effective measures to promote enterprise considering the environmental impact spontaneously. Thus, the environmental control of government can moved toward to second period, which is the government introducing market mechanisms for environmental control. Due to the consideration of the long-term strategy, enterprise will pay attention to the environmental impact of its own during operation. The most sensitive thing for enterprises is the market trends, however it cannot completely expect that the enterprise will wholeheartedly consider those behaviors in need to invest a lot of money on environmental protection. Government still needs to take some specific environmental economic means to promote enterprise. For example, via the fee or tax, financial subsidies, credit offers, rate difference and other methods, via the change on the costs and benefits of the corporate structure to change the enterprise's choice.3 In the 1990s, environmental control has entered the third period. The characteristic of environmental control in this period is that advocating broad participation. The role of government in the environmental control has a bid change: On the one hand, government has strengthened the government involvement in the environmental protection functions, changed in the past of negative attitude which only focus on the regulation of "fragmentation" on the stop-gap measures of environmental issues. While, it is breakaway from the preservation of the environment control law and turned to contain artificially management environment and plan to take advantage of the system of environmental management for development5; On the other hand, government has abandoned the initial order in the aspect of environmental management - regulatory means of control-oriented, it has taken the means based on the voluntary cooperation. …