A Study Of The Legal Nature Of Carbon Emission Trading

In the context of mitigation and adaptation of global climate change,as the Kyoto Protocol introduced carbon emission trading as a creative climate change policy,carbon emissions trading has emerged and has been considered to be one of the optimal allocation of atmospheric environmental resources,and also a significant means of mitigation of climate change.As the world’s largest greenhouse gas emission country,China is facing increasing pressure.But our country is also taking active efforts to deal with climate change.In September 2015,China and the United States issued the Joint Statement on Climate Change between China and the United States.In this statement,China has expressed its determination to actively mitigate climate change.China promised to reach its peak at around 2030 and reach its peak as early as possible,and announced that by 2030,China’s carbon emission intensity fell by 60%-65% comparing with 2005.As a responsible large country,China has positively carried out the work of greenhouse gas emission reduction,and has started the pilot of carbon emissions trading in seven provinces and cities,such as Beijing,Shanghai,Shenzhen,Guangdong,Tianjin,Chongqing and Hubei.The study of carbon emission trading involves economics,environmental science,law and other disciplines,in which the carbon emission right generated by Coase and a series of other legal and economic theory of deep impact,on this basis,the clear recognition of theoretical research such as the legal field of carbon emission right and other legal issues are the premise and basic conditions for the carbon emission transaction,which also plays a crucial role on the stable development of carbon emission trading.However,for the carbon emission right is newly-emerging right,as for what exactly kind of right carbon emissions right belongs to,there is a big controversy among academics,there are environmental right theory,property rights theory,new property rights theory and many other theories.In order to achieve the optimal allocation of environmental resources,Coase’s environmental property right theory considers a clear definition of the property rightsas one of its conditions.On one hand,carbon emission right is of economic value,and also exchangeable.In this perspective,carbon emission right is a private property;On the other hand,the exercise of carbon emission right involves the use of natural resources such as atmospheric environmental capacity,and the government has strong intervention and control of the carbon emissions trading system with respect to the production and circulation of carbon quotas and carbon credits.The participation and control of the public power plays a crucial role in the resulting benefits,which can even have influence on if the entire carbon emission trading system is a success or failure.In this perspective,carbon emission right possesses the character of public power.For one thing,the object of carbon emission right is an available environmental capacity resource with the characteristic such as usefulness,scarcity etc.,but for another,the environmental capacity of resources at the same time is of invisible,uncertainty and other characteristics.Therefore,carbon emission right does not fall into the framework of traditional property rights.Throughout the EU and China’s national legislation practice,it is controversial as to whether carbon emission is property right.From the current practice of legislation on carbon emission trading in China,our government is cautious about the property right of carbon emission.This is closely related to the background,policy objectives and institutional value of the carbon emissions trading system.At present,considering the shortage of China’s carbon emission trading practicing time,experience to be accumulated,the pros and cons is still difficult to fully grasp.If we consider carbon emission right as property right,it will undoubtedly cause a resistance to the future reform for the carbon emission regime.This paper argues that carbon emission right cannot be included in the concept of the traditional property right.Carbon emission right is a kind of independent right.It possesses the characteristic of both public and private right.Carbon emission right turns out to be a powerful tool to address climate change,control greenhouse gas emissions,and optimize environmental resource allocation.