The Research On The Legal Mechanism Of Interests Balance In The Environmental NIMBY Governance

The conflict of environment NIMBY hinder the construction of environmental NIMBY’ s facilities, hampering the promotion and transformation of national economy,destroying the stable development of society. Traditional research paradigm mainly concentrate on right analyses, formed the explanation framework of environment infringement based on the basic environmental rights, put forward the strategies mainly from the distribution of the absolute rights. Although these studies also provides some useful exploration, but the real reasons cannot be found. In this paper, the direction of environmental NIMBY governance research would be transformed into the research of the legal mechanism of interest balance, and that the primary reason of the conflict of environment NIMBY is the imbalance of interests, firstly, we should analyze the interests involved in the conflict of environment NIMBY and the concrete representation of unbalanced interests at different levels. And then we should build the legal mechanism of interests balance, which involves interest identification, interest measurement, interest compensation and interest remedy, in order to balance the unbalanced interests in the conflict of environment NIMBY.In the procedure of interest identification, the identified unbalanced interests present pluralism problem, therefore, it is necessary to rebuild the mechanism of the public participation rationally and classify unbalanced interests. In balancing of interests,we should use the diversified interest measurements, which mainly includes putting interests order as foundation, considering the economic efficiency analysis method as weapon, seeing the degree of compensation as reference, and regard the recovery ability as condition. At the same time, measuring two legitimate interests, we should solve thiscommensurability problem from the basic social consensus, specific institutional consensus and authoritative eclectic consensus, and avoid extremely measure. For the interest compensation, we should make innovations on the way of compensation and compensate the disadvantaged interest equally. Besides, we should insist on “the principle of sustainable development”, and consider the “loss minimization” as the standard to evaluate the fairness of interest compensation. And for the interests of alienation remedies, that is, to break the patience of “environmental tolerance limits”and the preventive conflict of environment NIMBY. Not only should we emphasize the diversified ways of interest remedy, but also pay attention to cultivate the “feasible abilities” to remedy unbalanced interest, which includes administrative remedy abilities and judicial remedy abilities. Therefore, this legal mechanism would provide a new method to get out of the dilemma of n order to provide a new way out of the environment to avoid the dilemma environment NIMBY.