The Research On The Supervision Mechanism Of Environmental Administrative Power

The power of theory is to make persuasive explanations to the social phenomena from a special angel of view. To explain the status quo of the implementation of environmental law, it is essential to outline the operation structure, logic and process of our environmental law and analyze the leading factor during the operation. The operation of law includes two facets: the establishment and the implementation of the law. The establishment of law is legislation in other words, while the implementation of law means the execution, judicature and abidance of the law. In the aspect of establishment the national environmental administrative department plays an important role in whether programming or drafting of the law, because of technical character of our environmental laws, codes and regulations and other normative juristical documents. While in the aspect of implementation, as the environmental law is a newly-established law branch during the past 30 years, there are just a few environmental law cases, so its effect of the protection of the environment is limited. Abidance of the law means the citizens comply with the law consciously to fulfil the obligation of environmental protection. Because in our country there aren't extensive mass environmental protection movements like in western countries, the citizen's environmental awareness is generally not high. The existing environmental laws are mostly the restricted and prohibitive regulations as to the utility of the natural environment, thus to control the behavior of discharging the pollutant and improper use of the natural ecological environment in the production and living field. If there is not outside compulsion, rational and selfish citizen or enterprise generally finds it difficult to observe environmental regulation voluntarily, therefore it mainly depends on the enforcement of the environmental administrative departments. So in the environmental legal system of our country theenvironmental administrative organ occupies the leading place, and to a great extent, the obtaining of the environmental protection goal depends on the execution of the environmental administrative power.However, can the environmental administrative organs of so important position exercise the administrative power of the environment correctly and positively? According to study of the bureaucracy in the public choice theory and our daily observation and living experience, the possibility is not big that the same person is selfish in economic activity, while selfless in public affair, under normal conditions. Officers engaged in environmental administration have their own interests, and the organ made up of these officers is like this too. Perhaps and necessarily these interests are not identical with public environmental interests. If there are conflicts, which in fact often happens, how to guarantee that the public environmental interests will not be damaged? There are two possible ways: First, to depend on the administrator's self-restraint; Second, to depend on the supervision of external strength. In fact, in a sharply-transforming society, multiple morals and values collide each other, and there are lots of misbehavior, hence it is very fragile to contain by oneself. Therefore we must set up certain supervision mechanisms to restrict the behaviors of the administrative organizations and the officers, change the government functionary's decision and behavior condition through the establishment of the supervisory system, and make them take action according to the society, which seem to be a more feasible way.Thereby, supervision is the appropriate perspective on the implementing of environmental law of our country. Where there are good laws, there is good governance. If it is to be implemented effectively, there must be better law made at first. In our country, though the formulation subject of the environmental law is the Standing Committee of the National People's Congress, formulation of regulation subject is the State Council, but above-mentioned subjects usually entrust State General Bureau of Environmental Protection to be responsible for investigation, research and draft of laws and regulations. So in our country, all environmental legalnorms, no matter the laws and regulations or the rules and environmental standards, the national environmental administrative institution has played an important and even a decisive role in the environmental legislative process in fact. Under such legislative mode where a single subject is leading, much attention is often paid to the expression and maintenance of self-interests without other strengths to participate and supervise, and thus the fairness and feasibility of legislation are influenced. Although there are some legal systems as to the legislation participation and supervision, these systems have not been well carried out because of various reasons. Without the full participation and supervision of the interested party, environmental pollution victim and non-governmental organization of the environmental protection, the environmental legislation lacks the extensive social base, therefore the effectiveness and acceptability are relatively bad. So, it is necessary to strengthen the supervision to the environmental legislative course and make the legislative course more open and more transparent, encourage the positive participation of the public and interested party, perfect corresponding filing and examination mechanism and allow the relative party to seek judicial remedy when having objections. Such complete legislative supervision mechanism can hold the interests inclination of the administrative organ in the legislation, improve the rationality and property of environmental legal norm and increase the public's acceptance and approval, reduce the difficulty of implementation at the same time.The environmental laws, regulations and rules of our country are for the most part provisions on environmental management, so the environmental administrations at all levels carry out the above basically. In our country, how the environmental administrative organs, especially the local ones exercise environmental law enforcement power, affects directly the authority and destiny of environmental laws, regulations and rules etc., and exerts an important influence on the implementation of the whole environmental law and improvement of environmental quality. The key problem in environmental enforcement in our country is that local environmental administrative organs are idle in fulfilling the duty, because the contradictionbetween the environmental protection and economic development is difficult to be coordinated well during a short period of time. The administrative leaders of local governments and environmental administrative organs lack the will to enforce the law strictly, and often choose to give up the environmental interests after pros and cons are considered. In this case, it is essential to set up a institutional external hard restriction to let local governments and environmental administrative organs at all levels can not or dare not give up one's own duty. Supervision is exactly this institutional restraint method.According to the stipulations of relevant laws of our country and social practice, the subjects which supervise local environmental departments are as follows: Organ of state power namely the local people's congress at all levels and their Standing Committees, superior administrative institutions, judicial authorities, parties, public organizations, citizens and the mass media. As to these subjects, the supervision that the environmental law enforcement administrations of our country receive is multi-level and omni-directional, but if analyzed further, it is easy to find that some supervision can do little help to solve the major problems in the environmental enforcement. For example, because of the limitation of the knowledge and staffing and the difficulty in obtaining the real information of the person supervised, the supervision of the local people's congress is affected. The judicial authority acts according to the principle as " no sue, no attention", so it is the legitimacy of an administrative behavior that is examined. But as to the encroachment of the environmental administrative organ on public interests, the negative behavior of not making clear the victims or idling to fulfil the responsibilities, the judicial authority has no power to supervise. Though the supervision of the public, social organizations, news media have the information advantage of low cost, to obtain the real effect of their supervision in the end depends on the supervision from another authority. Without great social pressure and the attention paid by an authority, it is a frequent result to end up in nothing. Hence, in urging the local environmental administrative organs to fulfil the duty actively, compared with other supervision subjects, thesupervision from the environmental administrative department of higher level is stronger, because it masters environmental management, there is no limitation of professional knowledge, can rank and examine the achievements of the supervised, change and cancel the illegal or inappropriate decision of the supervised, and has certain discipline measures as backing. In one word, it has mandatory and superiority that other environmental administrative law-enforcing supervisions do not have. However in this supervision, the supervisor and the supervised have the same interest to a certain extent, there is a formidable defect too, such as unfavorable for the whole administrative institution to introspect itself, unwilling to solve the problem harmful to interests of the whole industry, so other kinds of supervision are needed.Because of the problems in the structure, information acquisition and responsibility system etc, our environmental enforcement supervision mechanism has not given full play, and because of the lack of the communication mechanism between various kinds of supervision, it is difficult to supervise with joint efforts to realize the supervision from all aspects. The absence and poor efficiency of environmental enforcement supervision make the local governments and environmental administrative departments, which enforce the environmental law, relax the environmental regulation, therefore the long-term environmental interests of the public and country are damaged. In order to promote the environmental administrative enforcement everywhere, it is necessary to strengthen the supervision of law enforcement, improve the supervision method of each subject, pay attention to the link and coordination between the subjects, and set up convenient channel of systematic communication, in order to give play to comprehensive effect and influence of environmental enforcement supervision mechanism.In fact, the environment legislation link closely to the law-enforcing supervision. It is just because of the lack of the participation and supervision of social forces while legislating that there is no basis of supervision and difficulty in action. Who would make a law to let oneself restricted and supervised? Hence, thisthesis argues that the lack of supervision in environmental legislation and enforcement has been neglected by the researchers for a long time, which could explain why the poor implementation of environmental law. The lack of supervision to the environmental administrative organs in the legislation and enforcement has a close relation to the poor environmental enforcement, which can explain partly the enforcement problem. Setting up and perfecting the corresponding supervision mechanism, strengthening supervision to the main enforcement subject —the environmental administrative organ, will promote the environmental organ to fulfil the legal duty actively, thus contribute to improving the implementation state of the environmental law.