Jurisprudential Research On Post-Legislation Evaluation Of Environmental Law

The primary task of promoting the rule of law in the new era is “scientific legislation”,which requires that the legislation must conform to the objective laws of affairs regulated by law,and the process of law making should satisfy the internal and external conditions that the law is interdependent on.Post-legislation evaluation is an important means to promoting the scientific legislation,and the environmental initiative of the time has forced legal research to contribute to environmental legislation.Nevertheless,the research on post-legislation evaluation of environmental legislation still remains at its initial stage.From the perspective of jurisprudence,this dissertation applies jurisprudential theory to the specific field of environmental legislation,and proves the basic principles of post-legislation evaluation of environmental legislation.Besides the introduction and conclusion,the main part consists of five sections,with basic content as follows:Chapter One deals with basic theory of post-legislation evaluation of environmental legislation.Post-legislation evaluation is the super-ordinate of post-evaluation of environmental legislation,which constitutes the starting point and foundation of this study.On the basis of summing up the theory,system and practice of post-legislation evaluation in China,the author defines post-legislation evaluation as “an activity—a certain period after the implementation of legislation—that is organized by a specific institution,that involves legislators,law enforcers and stakeholders,and that is conducted—in accordance with specific procedures—to test the effectiveness and quality of legislation before amendment for perfection.” Despite the fact that the post-legislation evaluation has its own rationality in humanity,philosophy and technology,there still stand the inherent limits in terms of its cultural background,conditions for its application and scope of the objects related thereto.This can be verified in the Legal Performance Evaluation Report on Idle Land Disposal Methods.Based on the uniqueness of environmental legal relationship,the particularity of environmental post-legislation evaluation is embodied in the combination of inside perspective and outside perspective,the environmental baseline taken as an important coordinate,and the comprehensiveness and interconnectedness of evaluation indices.In order to accurately define the concept of post-legislation evaluation of environmental legislation,it should be distinguished from environmental impact assessment,valuation of environmental resources and Western constitutionally environmental impact assessment.Chapter Two discusses the realistic basis of post-legislation evaluation of environmental law.Foreign legislative evaluation system of environmental law and the practice in the revision of Law of the People's Republic of China on Environmental Protection constitute the realistic basis for post-legislative evaluation of environmental law.The value concept of the ecological interconnection and the method of assessing the value of resources used in the United Nations Millennium Ecosystem Assessment,constitute an important empirical basis for post-legislation evaluation of environmental law.As the concept of environmental protection has become the basis of social consensus,post-legislation evaluation of environmental law in the United States and the European Union has been incorporated into the regulatory system for environmental impact assessment and environmental standards development,and the normalized assessment mechanism has been developed for laws,policies and projects that have significant environmental impacts.In contrast,Japan environmental law assessment system with environmental law and policy text as the central dimension,for our country is easier to learn from.In the revision of Law of the People's Republic of China on Environmental Protection,the evaluation concept has undergone a repeated game of economic development and environmental protection,the model is mainly self-evaluation on the basis of public participation,and the evaluation process incorporates pre-legislation and post-legislative evaluation However,the lack of independent and long-term mechanism for the legislative evaluation of environmental law in China has led to the lack of specialization of the evaluation,the lag of the development of third-party evaluation and the incomplete data of the evaluation.Chapter Three involves evaluation elements of post-environmental legislation evaluation.This chapter mainly analyzes the three main elements of the post-legislation evaluation of environmental legislation,namely,the subject,object and content.It aims to answer the question of “What is the post-legislation evaluation of environmental legislation?” According to the definition of the subject's right capabilities and behavioral capabilities in the post-legislation evaluation,People's Congress or the government sector concerned shall be responsible for decision-making and guidance.The activity of evaluation should be carried out by the internal organs in People's Congress or the government sector or an independent third party agency,with local environmental stakeholders and the general public in the natural environment widely participating.The object of post-legislation evaluation of environmental legislation should be subject to the screening of feasibility criteria,which mainly includes economic,technical and social feasibility analyses and reasoning.Subject to the different levels of the effectiveness of legal documents,the content adjusted and the requirements of the evaluation,the object in the evaluation can be divided into three types: form system,content system and classification system.The classification system includes the holistic environmental legislation,single-text environmental legislation and individual environmental system.For example,the document An Analysis of the Environmental Legislation Texts of the Wuhan Municipal Government belongs to the holistic post-evaluation of environmental legislation.The object of post-evaluation of environmental legislation has such characteristics as uniqueness of location,quantification of the whole,and being more suitable for the cost-benefit analysis.The contents of post-legislation evaluation of environmental legislation can be divided into three dimensions: value evaluation,text quality assessment and implementation effect evaluation,which respectively correspond to the three analysis dimensions of value,system and fact.Chapter Four covers the standard theory of post-evaluation of environmental legislation.The standard of post-evaluation refers to the method,criterion and measure adopted in the process of comparing,approving and evaluating various legislative documents in the background of legal norms.The setting of the evaluation criteria is subject to the choice of evaluation method,which in turn depends on the orientation of the legal worldview.However,the basic theory and methodology of traditional jurisprudence have insurmountable limitations in dealing with the post-legislation evaluation activities under the new situation.The establishment of evaluation criteria in the post-evaluation requires a comprehensive application of methodologies for law,economics,sociology and other disciplines.Compared with the general post-legislation evaluation,post-evaluation of environmental legislation shall follow the general method of cost-benefit analysis,combine the methods of policy analysis,value analysis and logic analysis,and incorporate qualitative analysis into quantitative analysis.On the basis of legitimacy argument,applying the cost-benefit analysis method to the post-legislation evaluation of environmental law has the ethical foundation of justice,and conforms to the evaluation standard of justice.In the construction of indicators system,the following three principles should be followed: unity of environmental baseline,simplicity of environmental benefits,and integration of evaluation methods.In view of the above mentioned facts,this dissertation sets up the general indicators system(including 11 first-level indicators)based on the legislative purpose,legislative text quality and actual legislative effects,and respectively selects as research objects the legal texts of Law of the People's Republic of China on Environmental Protection,Water Law of the People's Republic of China and Water Pollution Prevention Law of the People's Republic of China,while setting the specific indicators system of the post-evaluation of environmental legislation.For instance,as regards Environmental Protection Law of the People's Republic of China,12 first-level indicators and 41 second-level indicators are granted,and the meaning of each second-level indicator is explained.Chapter Five is about the procedural theory of post-evaluation of environmental legislation.The post-legislation evaluation is a behavior system composed of a series of parts and steps.The norm of the procedure is related to fairness of the post-evaluation.The normative nature of the procedure is related to the objectivity and impartiality of the post-legislation evaluation.After analyzing the seven legal texts about post-legislation evaluation,the dissertation summarizes the elements of the procedure as the choice of the evaluation object,the determination of the evaluation subject,the control of the evaluation process,and the response of the evaluation conclusion.Periodic scheduling of the post-evaluation objects is conducted to realize institutional arrangements of the rise type,impact type,opinion type,age limit type of the evaluation objects.The evaluation subjects should—in terms of the classification of the attributes of the indicators and the social division of the evaluation subjects—be divided into three groups: the legislative and law enforcement subject group(power group),the environmental law scholars and related experts group(expert group),and third-party evaluation team(technical group).The process control of post-evaluation of environmental legislation includes term control in the form and indicators control in the content,the former control requiring the evaluation process to be completed within a certain period of time to ensure the completion of the evaluation task,and the latter control requiring the evaluation process being carried out in such a way that the purpose of the evaluation can be satisfied.At the last stage of the process,the evaluation subjects constitute an overall view on,an evaluation of and a legislative proposal for the environmental legislation.The environmental legislature is required to make a decision on the revision or abolition of the environmental law,and provide corresponding arguments in accordance with the evaluation conclusions within the prescribed time limit.Chapter Six details the application of jurisprudence research on post-evaluation of environmental legislation.In this chapter,Assessment Report on the New Law of Environmental Protection,Hubei Province Lake Protection Ordinance and the environmental legislation of Wuhan Municipal Government are selected to evaluate the validity of the previously mentioned theories.In view of the fact that theory and practice follow different logic,practice itself is a combination of behavior and choice,theory provides reflection only for the practitioners to display their influence,and there is a lack of better research capacity and resources,the empirical part of this chapter only applies partial contents of the theory about post-evaluation of environmental legislation.Assessment Report on the New Law of Environmental Protection reflects the advantages of third-party evaluation and the construction of the evaluation criteria.However,due to the lack of Independent and specialized evaluation mechanism,the evaluation content is lack of systematic and holistic,and the evaluation method is focused on qualitative analysis.The evaluation of the lake protection legislation is the application of the standard theory of post-evaluation of environmental legislation.Based on Hubei Province Lake Protection Ordinance,we set up specific indicators and quantitative models.The collected data are calculated to arrive at an evaluation conclusion that verifies the scientific nature of the criteria.The evaluation of environmental legislation of Wuhan City is a holistic evaluation of the environmental regulations of Wuhan municipal government from the perspective of legislative texts.The evaluation process and conclusions are centered on the problems and countermeasures of environmental legislation of Wuhan municipal government.