A Quest For New Theory Of The Development Of Environmental Law In China

In the context of Chinese Complex Society (CCS), an expansion of environmental law is coupled with more and more environmental crises, and the nationalization of environmental protection is coupled with the individualization of risk burden. Tuojiang Water Pollution Accident in 2004, Songhua River Pollution Accident in 2005, Yuanmingyuan Impermeable Membrane Incident in 2005, Yueyang County Arsenic Pollution Accident in 2006, Xiamen PX Project Incident in 2007 and Taihu Blue Algae Blooming Incident provided evidence for the above two paradoxes in the context of CCS. The two paradoxes are closely related to the roles of environmental law in China, that is, to the question of how to make the development of environmental law in China possible. In 2006,"double wheel model of environmental regulation and democracy"was put forward by Doctor Li Zhiping of Sun Yat-Yen University in her Ph.D. dissertation. In 2007, the model of"reflexive environmental law"was discussed by Doctor Guo Hongxin of Wuhan University in her Ph.D. dissertation. In Doctor Guo's model, the destination of the development of environmental law in China is"reflexive environmental law", and the principle of environmental democracy in the area of environmental law in the context of risk society is"environmental deliberative democracy".Doctor Li's"double wheel model of environmental regulation and democracy"and Doctor Guo's model of"reflexive environmental law"share a common starting point that traditional environmental legal institutions and theories could not answer the question of how to make the development of environmental law in China possible. There is a"copy"orientation, which is popular in the academic circle of environmental law in Chinese mainland, behind Doctor Li's"double wheel model of environmental regulation and democracy"and Doctor Guo's model of"reflexive environmental law". This kind of"copying"orientation ignores largely the context of CCS. On the one hand, path dependency of Western political and cultural tradition or Western goals of legal development is formed in the process of copying institution. On the other hand, pre-reflective acceptance of Western sociological and legal theory or Western legal values and ideals is formed in the process of copying theory. Doctor Li and Guo may presuppose homogenous environmental problems in all countries, and ignore the individuality of environmental problems in China and the possibility of dealing with the problems according to the context of CCS. Therefore, both models of Doctor Li and Guo did not respond to the above two paradoxes in the context of CCS. There is a problem of lack of institutional channels for environmental interest expression behind the paradox of an expansion of environmental law coupled with more and more environmental crises, and a problem of interest distortion mechanism behind the paradox of the nationalization of environmental protection coupled with the individualization of risk burden. In order to deal with the above two paradoxes, a new theory of the development of environmental law in China including the legal theory of procedural technique, reason of learning, and public discourse is put forward in this dissertation.This dissertation is divided into four chapters.Institutions of environmental regulation such as emission permit and marketable emission, as well as institutions of environmental democracy such as public participation in EIA and public interest environmental litigation, are analyzed in Chapter One. Doctor Li's copying institutions orientation behind her"double wheel model of environmental regulation and democracy"ignored largely the context of CCS, and formed path dependency of Western goals of legal development. Preconditions and medium of the interaction between environmental regulation and democracy are also discussed in Chapter One. Li's"double wheel model of environmental regulation and democracy"not only presupposed theoretically the existence of strong civil society in the development of environmental law in China, but also lacked normatively the support from legal theory and sociological theory.Both theoretic sources of Doctor Guo's concept of"reflexive environmental law", Gunter Teubner's theory of reflexive law and Eric W. Orts'theory of"reflexive environmental law", are also discussed in Chapter One. Teubner divided Philippe Nonet and Philip Selznick's"responsive law"into the substantive element and the reflexive element, constructed the model of socio-legal covariation based on instrumental rationality, system rationality and normative rationality of Jurgen Habermas's legal rationality, and proposed a new procedural theory of reflexive law based on the developmental model of formal rationality, substantive rationality and reflexive rationality. In Orts'theory,"reflexive environmental law"is a new ideal type as contrasted with market-based regulation/formal law, and command-and-control regulation/ substantive law. Unlike Orts who brought forward the theory of"reflexive environmental law"based on American social context, Guo copied Teubner's theory of reflexive law, used it directly as the theoretic base of the development of environmental law in China, and asserted that the destination of the development of environmental law in China is"reflexive environmental law". Therefore, in regard to her concept of"reflexive environmental law", Doctor Guo not only misunderstood Teubner's theory of reflexive law, but also took no account of the context of CCS. One of important theoretic basis of Doctor Guo's concept of"environmental deliberative democracy", Wouter Achterberg's theory of deliberative democracy, is also analyzed in Chapter One. Ulrich Beck proposed two solutions to the problem of"organized irresponsibility"in the context of risk society, that is, the empirical solution of sub-politics and the normative solution of ecological democracy. In Achterberg's theory of deliberative democracy, there is an affinity between deliberative democracy and Beck's ecological democracy. Doctor Guo's concept of"environmental deliberative democracy"not only cut away Achterberg's theory of associative democracy and Beck's solution of sub-politics, but also ignored other democracy mechanisms such as representative democracy in the development of environmental law in China.Three kinds of ideal types of Chinese society, that is, (1) rural society and urban society, (2) industrial society, risk society and ecological society, and (3) fractured society and harmonious society, are discussed in Chapter Two. These three kinds of ideal types of Chinese society provide largely important conceptual tools for us to understand the context of CCS. In fact, present Chinese society is far more complex than the social picture which these three kinds of ideal types can provide. The paradox of an expansion of environmental law coupled with more and more environmental crises, as well as the problem of lack of institutional channels for environmental interest expression behind it, and the paradox of the nationalization of environmental protection coupled with the individualization of risk burden, as well as the problem of interest distortion mechanism behind it, are also analyzed in Chapter Two. Among others, interest distortion mechanism covers at least three implications: (1) taking account of economic interests, and taking no account of environmental interests, (2) emphasizing the interests of Vested Interest Group, and ignoring the interests of Social Vulnerable Group; and (3) taking account of environmental damage, and taking no account of environmental risk. Our environmental law-making and governmental acts presuppose theoretically that government is the only representative of public interests, which is challenged by many actors in the context of CCS.Ulrich Beck's critical theory of risk society and Niklas Luhmann's skeptical theory of risk society are introduced in Chapter Three. Key concepts of Beck's theory of risk society include at least individualization and reflexivity,"organized irresponsibility"and"the social explosiveness of hazards", and sub-politics and ecological democracy. Both concepts of sub-politics and ecological democracy imply rethinking government and politics, and reinventing new institutions. Luhmann made use of his general theory of social systems and concepts of complexity and contingent society to explain the risk issue of Western functional differentiation society. In his theory, the possibility of overcoming risk society and ecological crises consists in how to enhance the"reflexive capacity"of social sub-systems such as politics, law, economy and science. Reason of learning can be developed from the theory of risk society. Reason of learning not only abrogates absolutist reason of control proposed by singular linear modernism, but also takes against crazy deconstruction of reason per se by post-modernism.Finally, a new theory of the development of environmental law in China based on the context of CCS is put forward in Chapter Four. The theory contains legal theory of procedural technique normatively, as well as reason of learning and public discourse empirically. Firstly, legal theory of procedural technique deals mainly with the paradox of an expansion of environmental law coupled with more and more environmental crises, and secondarily with the paradox of the nationalization of environmental protection coupled with the individualization of risk burden. The legal theory covers two key elements, procedural element and scientific and technical element. Procedural element means that various procedures and democracy processes such as citizen direct participation mechanism, representative democracy, associative democracy and deliberative democracy should be made full use of in making, implementation and enforcement of environmental law. Scientific and technical element means that environmental risk and impact caused by activities concerned should be taken full account of in making, compliance, implementation and enforcement of environmental law. Procedural technique juris pertitus who participates in making, implementation and enforcement of environmental law is the middleman between government and citizens. Legal theory of procedural technique takes against the monopoly by scientist in environmental law-making and risk public discourse construction, and argues for interaction between scientific reason and social reason in the both process. Secondly, reason of learning may play the role of guidance in the development of environmental law in China. Empirically, some elements of reason of learning can be found in scientific outlook on development, strategy on sustainable development, the principle of precaution, the institution of EIA, and the system of public emergency. There is also an affinity between reason of learning and Chinese traditional culture such as"the doctrine of the mean"in Confucian thought. Thirdly, public discourse may play the role of medium in the development of environmental law in China. Public discourse of environmental risk may affect largely governmental environmental implementation and industrial environmental compliance, facilitate the cooperation and compromise among government, polluters (destroyers) and citizens, and even form public opinion which can be taken into making, implementation and enforcement of environmental law. With regard to the feasibility of the theory of the development of environmental law in China containing legal theory of procedural technique, reason of learning and public discourse, only time will tell us.