Research On The Legal Environmental Responsibility Of The Enterprises In NIMBY Governance

With the rapid development of China's economic reform and society,the government and the public have a large number of urgent needs for the NIMBY facilities.However,the NIMBY facilities have caused strong opposition from the local people,especially those in the vicinity,and frequently escalated into social mass incidents.It has brought severe governance problems to local governments.In the framework of legal relations,the relationship between “government-enterprise-public”is a traditional and modern topic.In the representation of the phenomenon of conflict avoidance in China,the government and the public often become the subjects of direct opposition.“Enterprises hide behind the government.".The legal relationship of this structural imbalance reflects the contradiction of the obvious lack of environmental liability standards in the enterprise,and reflects the deep-seated problems in the choice of avoiding the governance path in China.As a result,the NIMBY facilities become neighbors and even evolve into Avoid conflicts.The main reason for the formation of NIMBY conflicts is that the value conflict of the contradiction parties is difficult to reconcile,the risk identification is inconsistent and the imbalance of the position of the relevant interest subject.Contradictions and conflicts highlight the limitations and dilemmas of both public and private law paths of NIMBY governance: relying on environmental regulation in public law,NIMBY governance model characterized by "control" and "commanding and supervision" to implement the environmental responsibilities of enterprises,and forming a single-line relationship between enterprises and citizens and the government.There is a lack of room for negotiation and compromise between them.Relying on environment infringement relief in private law,the liability of tort liability,damage and causation,such as long-distance barrier and time lag and other difficulties,coupled with the related litigation supporting mechanism is not perfect,so that the relief relying solely on private law there are great difficulties.The basic problem of NIMBY governance lies in the reasonable institutional arrangement of the property right of NIMBY facilitiy and its legal status.Under the premise of safeguarding the public use of facilities,how to better play the economic function of NIMBY facilitiy needs to reflect on the concept of national ownership in China.From the evolution of the public trust theory of the common law system and the theory of public property in the civil law system,we can obtain enlightening reference and study the legal structure of constructing dual property rights of state ownership: the NIMBY facility exists as a state-owned public property,exists as state ownership,and the ownership of the NIMBY facility has the nature of public law.The public use of the facility needs to be guaranteed,and at the same time the ownership is of a private law nature,serving the private interests of the serviceee,falling within the scope of income ownership in pursuit of maximization of income,exercised by the owner as the owner of the private law.The dual property right system of neighboring facilities determines the triple legal status of the enterprise shunned enterprise sandals with special operators,government partners and government controllers,and the different legal status corresponds to different environmental legal obligations.The norm of environmental responsibility of enterprises needs the new concept of just value as the lead and support.Under the traditional concept of justice,the responsibility of enterprises presents different frame structures,and also determines different neighbors' management models.In order to realize the "best interests of the majority of the people",the utilitarianism tends to take "environmental control" center more towards NIMBY governance,and often forms the "arbitrary-repression" mode of control.The liberalism focuses more on procedural justice,on guaranteeing citizens' right to know and participation,and on realizing the goal of individual rights justice through the "environmental infringement" priority model and corrective justice.With distribution justice and equal rights as the core,environmental justice holds that NIMBY facilities are not necessarily undermining environmental justice,advocates crossing the boundaries of public and private law,establishing a new framework of public-private cooperation and consultative governance,and using environmental control and tort relief as necessary means of risk control.problem-solving mechanism to achieve a balance between the interests of the government,the public and enterprises.To sort out the norms of our country's related neighbors to avoid corporate responsibility,the logical support behind it is still dominated by utilitarianism,and the path selection is still hovering in the "command-supervision" mode.From the practical effect of the investigation,China's environmental responsibility supervision mechanism for neighboring enterprises is not perfect,the supervision of neighboring enterprises is difficult,the local supervision power is insufficient,the environmental assessment of enterprises still needs to be strengthened.In judicial relief,environmental public interest litigation still mainly stays in the field of administrative litigation,the system of environmental tort relief is difficult to refine,it is difficult for citizens to realize the restriction of environmental responsibility to enterprises through litigation.Specifically,the effectiveness of government's environmental control and environmental tort relief also conflicts.Drawing on the normative system of the United States and other countries,the construction of the environmental responsibility system of neighboring enterprises in our country,in order to get rid of the shackles of environmental obligations under the traditional vision,we need to construct a new responsibility system under the concept of environmental justice: to further strengthen the duality of environmental responsibility content,and to reasonably measure the relationship between environmental responsibility "harm" and "responsibility",Effectively expand the scope of environmental tort liability of enterprises,and achieve the adjustment of the focus of environmental liability.Effective NIMBY governance,should provide a higher duty of care and liability for the highly risky enterprises of enterprises,and construct a liability system from environmental tort compensation,compensation and ecological damages.This includes constructing a socialized sharing mechanism,combining risk stoicism with responsibility,strengthening the construction of the system of environmental judicial specialization,and realizing an effective judicial review of enterprise environmental responsibility,with the goal of ensuring adequate compensation for damage caused by environmental activities hazardous to the environment,and effectively implementing the environmental prevention and recovery obligations of enterprises.Effective NIMBY governance,but also need to strengthen the implementation mechanism of environmental responsibility of enterprises,one is to strengthen the "policy" legislation,the allocation of surplus legislative power to the administrative organs can improve the flexibility of the law,establish a more perfect system of legal provisions,to achieve a certain degree of international integration.Second,it is necessary to perfect the government environmental supervision,the government environmental supervision has rigidity,investigation force,strong enforcement force,belongs to the law implementation mode with public power.Third,we should strengthen the enterprise's active risk prevention,which belongs to the law initiated by the private right.Fourth,strengthen the mechanism of public participation and consultation,which has the characteristics of flexibility and decentralization,and belongs to the way of law implementation initiated by public-private cooperation.By perfecting the three mechanisms of government environmental supervision,enterprise active risk avoidance,public participation and consultation,optimizing the coordination system of environmental responsibility of neighboring enterprises,and establishing an efficient legal enforcement mechanism,we can effectively realize the social function of environmental responsibility of neighboring enterprises,establish the relationship of trust between many parties,and turn the neighboring conflict into a "avoidance effect".