Study On The General Public Participation In Environmental Regulation Under Rule Of Law

Since the beginning of the 21 st century,the complexity of serious environmental pollution,limited environmental capacity and relatively inadequate resources are also big challenges for China.However,the traditional government monopolistic environmental regulations including administrative,legal and economic measures cannot effectively deal with and solve the phenomenon.Meanwhile,due to the nature of uncertainty and complexity of environmental risk,corresponding decision-makings are required before the risk occurs.In other words,environmental regulation focusing on environmental risk prevention is a kind of decision under uncertainty.Thus,Faced with the increasingly complexity of environmental governance,and in order to make environmental decisions as rational as possible,scholars begun to explore the mode of government-citizen cooperation under the influence of the theory of "multi-center governance" to improve the effectiveness of environmental regulations,and accordingly,the third generation of environmental regulation with wide participation,joint cooperation and diversified means became widely accepted.Based on such a background,the general public is not only the object of environmental regulation and the receptor of behavioral regulation,but also the main cooperative partner during the process of environmental regulation.Participation of the general public in environmental regulation provides an important channel for integration of resources management and satisfaction of the needs of the general public,and also means changes of the main body which supplies the environmental quality.Therefore,in order to guarantee the validity and legitimacy of general public participation in environmental regulation,reserving the government's governance flexibility,avoiding the decline of government control power and damage of environmental interests caused by general public participation,it is necessary to improve and perfect the integrated protection,the participation mechanism and cooperative legal system of general public participation which makes environmental quality management as the core.The thesis mainly contains following contents:The first part is an overview of environmental risk regulation.Environmental regulation is an act of influencing the private sector through various administrative means to achieve specific environmental tasks with public welfare attributes.Administrative environmental regulation focuses on the risk prevention of environmental disaster pollution,which has the characteristics of high professionalism,scientific uncertainty and complexity.As a result,the relevant legal system gradually adopts the thought of ‘purpose mode' legislation and risk prevention principle,and in order to maintain the flexibility of environmental regulative measures,the framework legislation,uncertain legal concepts and the implementation of administrative discretion are adopted to give administrative organs wider decision-making space in regulatory innovation.In order to make appropriate decisions in the administrative regulation of environmental risk,the government should design relevant mechanisms to develop open and interactive risk communication means which have multi-field participation so as to make the decision of environmental regulation more rational.The second part is the basis of general public participation in environmental risk regulation,or the theoretical and practical basis of general public participation in environmental risk regulation.Firstly,the application of democratic principles,the realization of citizen's right of environmental participation,the demand for democratic legitimacy of administrative power and the theory of deliberative democracy constitutes the legitimate basis for general public participation in environmental regulation.Secondly,taking the ‘Aarhus Convention' as an example,the present thesis describes the participation mechanism and mode of general public participation in environmental regulation,and accordingly the institutionalized contents of subject,scope and relief of general public participation is determined,which provides a practical model for the legalization of environmental risk regulation.Finally,the present thesis puts forward the practical approach of general public participation in environmental risk regulation through examination of the experience of general public participation in legalization of environmental risk regulation in the United States and Germany.The third part is the choice of ways and institutional forms of general public participation in environmental risk regulation.On the one hand,from the perspective of due process,the main function of general public participation in environmental regulation is to strengthen the democratic legitimacy of administrative decision-making,promote the formation of rational decision-making and obtain the legitimacy of administrative management.Correspondingly,if we subdivide the function of general public participation procedure from the perspective of environmental risk regulation,it can be further divided into information supplying participation,rights-interests defensive participation and decision-making facilitative participation.On the other hand,from the perspective of purpose of environmental regulation,as long as general public participation meets the requirements of environmental law,the general public should be encouraged and recognized to participate in environmental cooperative regulation with the capacity of ‘private subject'.The choice of regulation strategy under public-private cooperation is mainly the system form of social autonomous regulation,which includes induced regulation mode such as environmental fee and tax,ecological compensation system,emission right;energy trading system and preferential and incentive measures;the mode of supervision and certification such as self-monitoring and certification system;the mode of group self-regulation such as voluntary environmental agreement system and the industry self-regulatory action plan system.The fourth part is to explore the institutional obstacles and causes of general public participation in the legalization of environmental regulation in China.Taking the delimitation and regulation of ecologically sensitive zones as an example,the main problems of general public participation in environmental risk regulation in China are the imperfect participation mechanism and the ineffective implementation of environmental regulation.In other words,the institutional defects of environmental regulation,the insufficient protection of general public participation in environmental rights and interests,and the failure of the ‘multi-center' cooperative mode of environmental regulation are the fundamental causes of legalization of general public participation in environmental regulation.The fifth part is the construction and improvement of the legal system of general public participation in environmental regulation in China.First of all,under the guidance of consensus ‘prudent prevention and co-governance',the thoughts of environmental regulation should be reshaped,and a new environmental regulative mode of ‘cooperation and participation" instead of "competition and control" should be established,which combine the command-based regulation,economic-induced regulation and voluntary cooperative regulation measures based on the relationship between the government and the general public.Secondly,through the establishment of participation-based environmental rights,the refinement of general public participation in environmental regulation and the construction of consultative democracy mechanism,the effectiveness and legitimacy of general public participation in environmental regulation can be guaranteed,and the effective interaction between regulation and democracy can be realized.Thirdly,with the change of the basis of environmental risk regulation from a single environmental factor to various environmental factors,this thesis puts forward the strategy optimization and institution supply of natural ecological space regulation with the perspective of regulation innovation.Finally,we should construct and improve the legal system of environmental and social autonomous regulation in China,including economic-induced,green-regulated and voluntary agreement-based environmental autonomous regulation system.