Research On Legal System Of Greenhouse Gases Regulation

Global warming has been a practical threat to the living and development of human being. Anthropogenic greenhouse gases (GHGs) emissions are the main causes of global warming. In order to mitigate the global warming, international society has a long history of negotiation. Nowadays, the international legal framework of GHGs emissions reduction has consisted of United Nations Framework Convention on Climate Change (UNFCCC) and Kyoto Protocol. How to control GHGs emissions by domestic legislation is crucial for every member of UNFCCC to deliver its obligation of GHGs emissions reduction under the principle of common but differentiated responsibility. This paper focus on domestic perspective and its purpose is to establish an effective legal system to control the GHGs emission. This paper adopts a "what-why-how" logic. First, defines the core concept of GHGs emission regulation. Secondly, demonstrates why the government regulates the GHGs emissions in economics politics and legal philosophy perspective. Finally, also the core of this paper proposes the principles of GHGs emission regulation institution and systematically analyses two kind of basic institutions, combining the theory and practice of GHGs emission regulation legislation in developed countries such as England America etc. And taking account of China’s context, provides suggestions for China’s GHGs regulation legislation.Apart from the introduction and epilogue, this paper consists of five chapters:Chapter one is the definition of basic problems about GHGs regulation. This chapter is the logic origin of the paper, and it addresses the problem of what is the GHGs emission regulation and why the governments regulate the GHGs emissions. This chapter consists of four parts.The first part is the legal status of GHGs. This part argues that GHGs should be designated to be the criteria pollutant, and the institutions of GHGs emission regulation and the prevention of air pollution should be integrated. The second part argues that GHGs emission regulation is a kind of social regulation, and analyses the objectives of GHGs regulation. The third part is the boundary of GHGs regulation, which argues that it is important to properly address the relationship between governments and market. The governments should take effect by cost-efficient and fair measures, when market failures exist. And, the governments should adopt market-based institutions. The fourth part is the economic political and jurisprudential base of GHGs regulation. There are three facets of economic base: market failure, collective action and kuzniets environmental curve. The theory of market failure makes it necessary for government to regulate GHGs emissions. The GHGs regulation is the requisite of collective action, and is the meaning of the theory of kuzniets environmental curve. Political base of GHGs regulation contains the theory of green politic and legitimacy of politics. GHGs regulation is an important part of green politic. GHGs regulation is important for the government to maintain its legitimacy. The jurisprudential base of GHGs regulation contains the theory of climate justice, public interest, public intrust and state’s obligation. Climate system is of the character of public goods, and therefore it is necessary for government to regulate GHGs emissions to address the climate injustice. GHGs regulation can protect the climate public goods from public damage. Governments should be the intrustee of the climate system, and take measures to regulate GHGs emission for mitigating the global warming. Governments should deliver the obligation of protection of climate system.Chapter two is the principles and basic constructure of GHGs regulation legal system. This part has two objectives:first, provides instructive principles for the GHGs regulation legislation; second, analyses the influence of international climate change legislation on GHGs regulation legislation, and the classification and characters of GHGs regulation legal system.There are three principles:precautionary principle, polluters pay principle, and proportional principle. There are three elements in precautionary principle:scientific uncertainty, risk evaluation of global warming, the inversion of burden of proof and cost-efficiency analysis. Polluters pay principle should be throughout the course of GHGs regulation, and the allocation of emission reduction obligation should be fair. The regulatory measures must be proportional and favorable to deliver the public interest. When there are several measures to achieve the reduction target, it is better to choose the least restricting or most unrestricted one. The obtained environmental interest should outweigh the loss of production or living to the GHGs emitters.The basic constructure of GHGs regulation legal system consists of three parts:the international law base of GHGs regulation, classification, character and integration of basic institutions of GHGs regulation. The international law addressing climate change has important influnce on the domestic legislation of GHGs regulation. There are two kinds of institutions:command-and-control regulatory institution, and market-based regulatory institution. We should integrate the two kinds institutions when design the basic institutions of GHGs regulation.Chapter three is the direct GHGs regulation:command-and-control regulatory institution. This part contains standards, permits and cap. Standards consist of air quality standard, GHGs emission standard, GHGs monitoring method standard, and energy efficiency standard. Permit is to allow the legally qualified entities to emit GHGs. Cap is the designation of GHGs emission reduction target or establishment of the carbon budget. Penalty is the main legal responsibility for the violators of GHGs emission trading system.Chapter fout is the indirect GHGs regulation:market-based regulatory institution. There are three points in this part:GHGs emission trading, carbon tax, and the comparative analysis between emission trading and carbon tax.First, it is emission trading institution. From the perspectives of ecosystem service and new property, emission right is of the character of new property right. It demonstrates the advantages and disadvantages of cap-and-trade and baseline-and-trade, and proposes to adopt cap-and-trade for large emitters and baseline-and-trade for the non capped sectors. It demonstrates the advantages and disadvantages of upstream trading and downstream trading, and proposes to combine the two modes. It analyses the theoretic and practical methods of emission allowances allocation in developed countries, and proposes to insist to there principles while emission allowances allocating. The there principles are efficiency, fairness, and environmental effectiveness. It demonstrates the free and priced allocation methods of emission allowances. There two free allocation methods:grandfathering allocation and benchmarking allocation. There are two priced allocation methods:government pricing and auction. Grandfathering allocation is based on the historic emissions. Benchmarking allocation is based on the emission of per product. Government pricing is based on the criteria price of an emission allowance. Auction is based on open or sealed bidding, and the bidder who offers highest price will acquire the emission allowances. Nowadays, most practical allocations are free allocations. But the emission allocation should be priced in future. The exertion of GHGs emission right has four manners:surrendering, transferring, banking and borrowing. The loss of GHGs emission right has there reasons:delivering obligation, expiration, and retirement.Secondly, it is carbon tax. It demonstrates the advantages and disadvantages of upstream carbon tax and downstream carbon tax, and proposes to adopt downstream carbon tax in priority. When the administrative cost is too high or compliance is not feasible, it is better to adopt the upstream carbon tax. The objective of carbon tax is the carbon dioxide produced by the fossil fuel. The carbon tax base is the carbon dioxide emissions. The tax rate is ration rate, and the tax amount payable should be higher than the emission reduction cost of the GHGs emitters. The carbon tax preferences are as follows:favoring the energy intensive industry, the early emission reduction action, and the other taxes of taxpayers.Thirdly, it analyses the differences between emission trading and carbon tax from six perspectives. The six perspectives are as follow:certainty of environmental effectiveness, certainty of emission reduction cost or benefit, flexibility, administrative cost and compliance cost, political acceptance, and coordination with the current policies. It is argued that it is more feasible to integrate the advantages of carbon tax into the promoting of emission trading scheme.Chapter five is the establishment of GHGs emission regulation institutions in China. According to China’s situation, it proposes the legislative notion and institutional outline after Copenhagen Conference. Firstly, analyze the legislative context and notion. China’s historic emission and per capita emission are low, and should take voluntary measures to reduce GHGs emission under the principle of common but differentiated responsibility. The legislative notion of GHGs emission regulation is as follow:pursuing the economic and social sustainable development, combining incentive and restriction, and adopting the promoting legislation. Secondly, it is the establishment of basic institutions of GHGs emission regulation. China’s GHGs regulation legislation should focus on the mechanism to promote voluntary emissions reduction, and command-and-control or market-based institutions are secondary. It is advised that China should establish recommending GHGs emission standard, perfecting the energy efficiency standard, and combining baseline-and-trade and carbon tax. Learning from Ametica, promote GHGs emitters to voluntarily reduce emissions by voluntary reporting institution and public-private partnership.