On The Distributive Justice Of China’s Carbon Emission Rights And Its Legal Realization

In view of the increasing risk of climate change,the international community has been exploring more effective emission reduction models.The carbon emission rights trading system based on the market mechanism is favored by more and more countries.China has clearly defined the carbon market as an important measure to cope with climate change and promote the construction of ecological civilization.The initial allocation of carbon emission rights is the key link of carbon market operation,which is directly related to the implementation effect of carbon emission rights trading system,and ultimately affects the overall situation of climate change mitigation and economic and social development.At the value level,the initial allocation of carbon emission rights in China must pursue distributive justice,and the environmental law must answer the question of how to understand and realize it legally.This paper focuses on the six contents of distributive justice in the China’s carbon emission rights,namely the basic connotation,social needs,specific principles,realization theory,system construction and judicial guarantee.The first chapter explains the basic connotation of the distributive justice of China’s carbon emission rights,which answers the question of what is the distributive justice of carbon emission rights.As for the "carbon emission right",the relevant legislation of our country has defined it,but has not made its legal nature clear.This paper discusses the carbon emission right in the context of China’s carbon market,which does not involve the carbon emission right in international law,carbon emission reduction responsibility allocated by the government in administrative regions at all levels and the carbon emission right that does not belong to legal rights.Although carbon emission right is basically the same as emission right in nature,they should not be simply classified as one.In terms of "carbon emission rights allocation",this paper specifically refers to the quota allocation in the mandatory cap-and-trade carbon market.In terms of its attributes,carbon emission rights allocation is also market commodity allocation,air capacity resource allocation,production factor allocation and legal rights allocation.As for "distributive justice",the author thinks that distributive justice is the expression of justice in the field of distribution,comprehensive value,substantive justice,social justice,special justice and institutional justice.The distributive justice of carbon emission rights should be based on teleology,with interests as the main axis to understand and deal with related issues,but should not go to the utilitarianism in the typical sense.The second chapter analyzes the social needs of the distributive justice of China’s carbon emission rights,and answers the question why we should pursue it.In the final analysis,the pursuit stems from the practical needs,which are rooted in the international and domestic social background.At the international level,to mitigate climate change,the path of emission reduction is inevitable,but under the condition of limited human resources as a whole,the issue of emission reduction is competitive with the others.From the Kyoto Protocol to the Paris Agreement,China’s way of assuming international responsibility for emission reduction has changed,and the external constraints have gradually tightened.At the domestic level,the situation of politics,economy,policies,laws and social culture shows that it is imperative to continue to reduce emissions.The allocation of carbon emission rights in China’s pilot provinces and cities is relatively smooth as a whole,and the national carbon market has not yet started the allocation work.The realistic demand of the distributive justice of carbon emission rights lies in the proper handling of various conflicts of interest,which is manifested in the pursuit of various legitimate values and the "ought to be" handling of relevant value conflicts.There are two kinds of conflicts of interest in the allocation of carbon emission rights in China.One is the conflict between the ecological interests from the climate system as public interests and the resource interests of greenhouse gas atmospheric capacity as private interests,the other is the conflict among different subjects in the allocation of carbon emission rights as resource interests.The third chapter discusses the specific principles of distributive justice in China’s carbon emission rights,and answers the question of what kind of justice principles should be followed in such allocation.As far as the practice of distributive justice is concerned,it is necessary to put forward substantive specific principles of distributive justice,which is also the basis of constructing specific allocation system.The principle of distributive justice is subjective,because different subjects inevitably agree with different specific principles based on their own backgrounds,beliefs,interests,positions and other factors.The principle of distributive justice is fundamentally a standard of interest distribution,so there must be competition between different principles.The distributive justice is special justice,and its specific principles must be special with objectivity,historicity and locality.The distributive justice of China’s carbon emission rights should follow two principles.One is the principle of maximizing social interests from the national perspective,that is,carbon emission rights allocation should be conducive to economic development and environmental protection,and strive to maximize the social interests including but not limited to economic interests and environmental interests.The other is the principle of desert based on contribution from the perspective of emission units,that is,the moral basis for obtaining carbon emission rights should be its contribution to the economic growth and environmental improvement.Both principles can be proved by contractualism and reach the balance of reflection,so they have logical self-consistency.The principles can be widely accepted,more in line with the social system background and technically feasible,so they have practical feasibility.These principles should transform from morality to law,mainly through legislation in China.The fourth chapter explores the system realization theory of carbon emission rights’ distributive justice,and answers the question of how to realize the distributive justice through legal system.According to functionalism,carbon emission rights allocation system is a normative functional system that includes four modules: what to allocate,who to allocate,allocate to whom and how to allocate.It has dual social functions of solving allocation problems and maintaining distributive justice.The life cycle of carbon emission rights allocation system roughly includes four stages: system purpose,system structure,system implementation and system change,which is also the realization process of its social function.From the perspective of function,it can be found that the allocation systems in Europe and the United States have essential commonness.That is to say,both systems are based on market economy and society ruled by law,have almost the same optional items of the normative path,and should be committed to solving allocation problems and realizing distributive justice.However,there are differences,mainly in the social conditions and scale,in the use of the two systems.As far as the carbon emission rights allocation system itself,the differences between Europe and America are mainly reflected in the purpose and structure of the system.The reason is that the European Union pays more attention to solving the emission reduction problem than the United States,and their understanding of the specific content of distributive justice is obviously different,and the difference in purpose eventually leads to the structural difference.Inspired by this,the construction of China’s carbon emission rights allocation system must have a clear purpose,optimize the structural details,and constantly promote its benign changes.The fifth chapter discusses the system construction of distributive justice of China’s carbon emission rights,and solves the problem of how to construct the system in order to better realize the distributive justice.From the perspective of justice,to judge the allocation system of carbon emission rights,the essential criterion is whether the conflicts of interest and value can be properly resolved,and the formal criterion is whether the conflict of interest or value can be resolved according to the established principle of distributive justice.According to the above criteria,we can judge the justice character of each functional module of the existing local allocation system,and rationally construct the national system.For the latter,the current total amount setting should adopt the historical intensity reduction method,and the types of control gas can be set flexibly according to the specific industry,and gradually increase as a whole.The allocation should not be set on provincial level,and the allocation democracy should be strengthened.The covering industries should be gradually increased,while the threshold should be gradually reduced.The allocation method should be distinguished according to the specific industry and flexible according to the situation.The sixth chapter studies the judicial guarantee of the distributive justice of China’s carbon emission rights,and answers the question of how to guarantee its realization through judicial activities.The lack of distributive justice in the allocation of carbon emission rights mainly includes two situations.One is that the ecological interests or the collective resource interests of emission units are not properly protected,which is reflected in the dispute over the setting of total amount;the other is that the resource interests are not properly allocated,which is reflected in the dispute over quota allocation.The act of total amount setting is a kind of administrative planning from the content,which belongs to the atypical specific administrative behavior in the nature.The quota allocation of China’s mandatory carbon market is an administrative act,while the quota allocation in narrow sense is an administrative franchise.The act of setting the total amount should be litigable.It can bring administrative litigation for the purpose of private interest relief and environmental administrative public interest litigation for the purpose of protecting public welfare as well.The petition of revoking the total amount setting is a kind of claim to exclude the infringement in the administrative law.The basis of the claim has not been fully established in the current law.If it is a suit for public interest,the people’s procuratorate should be the qualified plaintiff;if it is for private interest,the court should inform the damaged emission units to propose representatives to participate in the suit.In the litigation of total amount setting,we should not only give full play to the judicial initiative,but also pay attention not to exceed its reasonable limit.There are two types of quota allocation disputes,that is,the abstract administrative act disputes for allocation basis and the specific administrative act disputes for allocating behavior and results.In addition to the plaintiff’s claims,the scope of judicial review of quota allocation disputes should also cover the normative documents as the basis of allocation.