The Study On The Actionable Of EIA Approval Behavior In China

Environmental impact assessment has practiced more than 40 years in china, as the "exotic", it absorbed concept at the beginning of the designing of the system, namely,through government coercion to achieve environmental risk prevention and the preservation of environmental interests, and formed a unique system of EIA with the actual situation of our country’s administrative management.At the view of administrative, EIA has practiced well in china. At the same time, in recent years, the mass incidents involved in EIS has occur frequently. This phenomenon has tortured the EIA in China, this torture is not only based on the development of the EIA itself, but also reflected in the construction of supporting system of EIA,it includes the supervision of administrative to achieve the purpose of concept at the beginning of the designing, of course, as an important form of external supervision, if the judicial review needs to become a major way need to supervise.According to the practice of judicial review about administrative action in china, one of the elements of review is the finality of the administrative action, the court the EIA approval behavior can be reviewed only to supervise the exercise of administrative power. Based on the essential factor of modern administrative law principle, namely, the unified of the power and responsibility about administrative behavior, the review scope need to include the EIA approval behavior to ensure the responsibility shall be investigated; Based on the essential attribute of administrative act, the nature of administrative act is the service, its essential attribute is actionable, as a kind of administrative acts, the same to the EIA approval behavior; Based on the effectiveness of the EIA, outside experience suggests that judicial review is a chief way to guarantee the effectiveness of the EIA; Based on the public participation and the perspective of maintaining social stability, judicial review can enrich the form of public participation, the contradiction buffer which is formed can realize the social stability. So, it is necessary to make the EIA approval behavior into the category of judicial review.The current judicial practice has review of EIA approval behavior already, especially for the construction project EIA approval behavior, as a result of its can be classified into administrative licensing category. According to the investigation, the current review still belongs to the category of the administrative litigation, and the judicial review has too much restricted, is mainly embodied in the review scope, the strength of lawsuit qualification, examination content, Review of strength, proof standard and the handling of the case and so on,the value orientation are the private interest,efficiency and constraint. Through the analysis of the current review, it is not hard to find the dissever between public security and the current private interest oriented, the current judicial practice can not realize the design target, the interests of the environment preservation needs the construction of public interest relief path, of course, as a result of the characteristics of the judicial review about administrative behavior are cancellation suits, the private interest relief path can also achieve the purpose of public welfare indirectly, but the relief path can only play a minor role.From the perspective of destination of EIA, namely, the perspective of the preservation of the interests of the environment, we need to integrate the path of the judicial review of EIA approval behavior, it mainly consists of public interest relief path as well as the private interest relief. In the aspect of public welfare relief path, through the active interpretation of existing specifications, we can find the legal basis of the judicial review of public welfare, and social organization can feed the qualification of the standing; Combination of the burden of proof in administrative litigation, both sides must burden the proof in administrative public interest litigation, the defendant shall be borne more; Combined with the characteristics of uncertainty in judicial review of the EIA approval behavior, points out that the court for review of substantive issues can only be a limited review, issued that the professional opinions by the administrative organs should give respect, only in exceptional cases, the court can be substantial examination relatively, namely, whether the substantive matters has reasonable consideration; Combined with the characteristics of the risk prevention in the judicial review of EIA approval behavior, pointed out that to strengthen risk communication in the processing and the tendency to the diversity forms of assume, in order to solve the case that has not certain conclusion, risk guarantee is the reasonable judgment in the form of final disposal; Based on the actual situation, the lawsuit filed, the third party to participate in litigation and associated with litigation costs such matters as clear. In terms of private interest relief indirectly realize public path, on the premise of clear the nature of private interest relief, judicial review of the construction project EIA approval behavior need to improve, mainly including in the aspects of the subject of litigation, judgment of its stakeholders; For the burden of proof and the examination way can join the rationality review requirements appropriately, for responsibility, the lawsuit filed and litigation costs can continue to use the original way of processing.