Wang Canfa, professor at China University of Political Science and Law: The codification of ecological and environmental codes has four characteristics

Reporter: Zhou Yifei Editor: Chen, Xu

In the field of environmental and resource law, the codification of ecological environment is a very important topic.

The legislative plan of the Standing Committee of the 14th National People's Congress (NPC) released in September 2023 clearly states that it is necessary to actively study and promote the codification of the ecological code and other areas where conditions are ripe. On the 22nd of last month, Zang Tiewei, spokesman for the Legislative Affairs Commission of the Standing Committee of the National People's Congress, revealed that the Standing Committee of the National People's Congress is actively studying and promoting the compilation of the ecological and environmental code in a steady and orderly manner.

Wang Canfa said that the carbon emissions trading system is only one of many systems to address climate change. Moreover, it is not the core means to achieve the "dual carbon" goal. The picture shows Wang Canfa Image source: the official website of China University of Political Science and Law

So, what are the characteristics of the mainland's ecological and environmental code, what are the current challenges, and what measures can be taken to promote the implementation of the codification work in the next step? With this series of questions, the reporter of "National Business Daily" (hereinafter referred to as NBD) conducted an exclusive interview with Wang Canfa, a professor at China University of Political Science and Law and director of the Legal Assistance Center for Pollution Victims of China University of Political Science and Law.

From an academic topic to a national proposition

NBD: Can you briefly describe the characteristics of the Eco-Code that is currently being developed?

Wang Canfa: The first feature is that research comes first. As one of the options for the systematization of environmental law to reach an advanced stage, the environmental code has accumulated a lot of achievements in the compilation of environmental code in the domestic academic circles.

More than 10 years ago, the academic community began to study the ecological and environmental code. In 2010, we wrote a research report called "Study on the Necessity and Feasibility of Formulating an Ecological Code", which was commissioned by the Department of Policies and Regulations of the Ministry of Environmental Protection (now the Ministry of Ecology and Environment) and produced a research report of tens of thousands of words.

A few years ago, another institution organized experts to conduct systematic research and officially published an expert proposal on the draft of the ecological and environmental code. In recent years, the Environmental Resources Law Research Society of the China Law Society has organized scholars to conduct a series of researches, translated some foreign ecological and environmental codes, and published a large number of papers on the compilation of ecological and environmental codes.

The second feature is that the CPC Central Committee attaches great importance to the compilation of ecological and environmental codes. On April 24, 2021, the Standing Committee of the National People's Congress (NPC) announced a legislative plan, proposing to "study and start the codification of mature administrative and legislative fields such as the Environmental Code, the Education Code, and the Basic Administrative Code", which means that the codification of the environmental code is no longer a purely academic topic, but a national proposition that has been incorporated into the vision of the legislature.

The third feature is that various departments cooperate with each other. For example, the Ministry of Ecology and Environment (MEE) is responsible for the compilation of pollution prevention and legal liability, and the Ministry of Natural Resources, the National Forestry and Grassland Administration and other departments have organized special teams to be responsible for the compilation of environmental codes, so many departments are cooperating with each other.

The fourth characteristic is that there is a good political environment. Since the 18th National Congress of the Communist Party of China, the mainland has been emphasizing the construction of ecological civilization, and the construction of ecological civilization requires the strictest system and the strictest rule of law to provide reliable guarantees, which provides a good political environment for the compilation of environmental codes.

NBD: The compilation of an environmental code involves a wide range of issues, how do you think the mainland needs to deal with the relationship between the Civil Code and the Criminal Law of the People's Republic of China?

Wang Canfa: The mainland already has a Civil Code, and the Civil Code has a chapter on environmental infringements, and the Criminal Law of the People's Republic of China has a section on the crime of destroying environmental resources, so it is very important to handle the relationship between the Environmental Code and the Civil Code and the Criminal Law of the People's Republic of China.

In my opinion, the chapter on environmental torts in the Civil Code does not fully cover the adjustment of civil environmental legal relations.

Therefore, the codification of environmental codes should be both civil and administrative. There is no need to worry about duplication of content between the Environmental Code and the Civil Code. The environmental code can still stipulate the content already provided for in the Civil Code, but the environmental content that is not provided for in the Civil Code should be supplemented and improved by the ecological and environmental code.

As for the relationship between the Environmental Code and the Criminal Law of the People's Republic of China, the provisions on environmental crimes in the Criminal Law of the People's Republic of China are relatively scattered and do not form a complete system, but it is not realistic to make systematic provisions on environmental crimes in the Environmental Code. I suggest that the environmental code can stipulate the charges for environmental crimes, and that the specific criminal liability should still be pursued in accordance with the provisions of the Criminal Law of the People's Republic of China.

It is now in the substantive codification phase

NBD: Compared to the Civil Code, what do you think are the main challenges and difficulties encountered in the codification of environmental codes, what is the progress, and what do you think of these difficulties?

Wang Canfa: Compared with the Civil Code, the drafting of the Ecological Code is much more difficult than the Civil Code, and there are more challenges and problems.

First of all, the Civil Code has a relatively long history, and the adjustment of the relationship between civil law and criminal law is also relatively mature in theory. Environmental law is an emerging sector in the continental legal system, and many theories are not mature enough and legal relationships are not stable enough. As a result, it is very difficult to "dictate" the content of the environmental code with a unified theory.

Although the Civil Code regulates many legal relationships, it regulates civil legal relations between equal subjects. The environmental code is different, it regulates not only civil relations, but also administrative relations, and even fiscal and tax relations, involving a wide range of adjustment objects. As a result, the drafting of the environmental code was very difficult.

Secondly, the environmental code also involves many administrative departments, and the laws that different administrative departments are responsible for implementing are quite different, so whether a unified system can be established in the environmental code is very controversial. In particular, whether or not to stipulate the management system and how to regulate it may be highly controversial.

In addition, the environmental code also involves a large number of laws and regulations. The Civil Code involves several laws, and the compilation of the environmental code may involve dozens or even hundreds of laws and regulations, so it is difficult to concentrate the content of these laws and regulations into the environmental code.

There is also a difficulty, because the environmental law belongs to the emerging sector of the continental legal system, environmental problems will change with the development of the economy, such as the air pollution prevention and control law, in the 80s of the last century is mainly to solve the problem of soot pollution, to the 90s is mainly to solve the problem of sulfur dioxide pollution and acid rain, into the 21st century, it is mainly to solve the problem of automobile exhaust pollution and fine particle pollution, the next step will be to solve the problem of ozone pollution. On average, every 10 years, the Air Pollution Prevention and Control Law needs to be revised once a year. This creates difficulties in dealing with the stability of the code and the changing relationship between legal norms.

As for the progress of the compilation, the environmental code has now entered the substantive codification stage, and the Legislative Affairs Committee of the Standing Committee of the National People's Congress has submitted a draft proposal to the relevant departments on the time limit. At present, some departments are close to completing the tasks they need to undertake, and some experts are also drafting their own drafts, and all aspects are making steady progress.

I believe that the compilation of any code cannot be without difficulties and challenges, and the key is to identify the difficulties and explore solutions. I have full confidence in the codification of the environmental code of the continent.

In addition, it is also necessary to grasp the main contradictions, determine the main problems, main systems, and main principles, and first build a broad framework, and the specific content can be continuously improved in the future.

NBD: Now that all aspects of environmental codification are ripe, what steps can be taken to promote the implementation of codification?

Wang Canfa: Under the guidance of the CPC Central Committee, the National People's Congress and the efforts of various departments, the compilation of the environmental code on the mainland has already begun to be implemented.

At present, the building of the relevant legal system is still lagging behind

NBD: At present, all fields in the mainland are actively working to achieve the "dual carbon" goal. According to your observations, what are the characteristics of "dual carbon" litigation in recent years?

Wang Canfa: "Dual carbon" litigation is generally referred to as climate change litigation in the world, and we have observed that the number of "dual carbon" cases in mainland China is relatively large and is increasing year by year.

A few years ago, Friends of Nature, one of China's first environmental social organizations, filed a lawsuit in Gansu Province with the support of the Environmental Resources Law Research and Service Center of the China University of Political Science and Law (also known as the Legal Assistance Center for Pollution Victims), which has been settled through mediation. Another case in Ningxia is still being litigated, and these are typical climate change litigation cases.

According to the statistics of the Supreme People's Court, since the signing of the Paris Agreement by the mainland, people's courts at all levels across the country have concluded 1.12 million carbon-related cases in the first instance, involving the falsification of environmental monitoring data and carbon emission data, all of which fall within the scope of climate change litigation. It is clear that the number and types of cases involved in carbon-related disputes have gradually increased, and there is a trend of further increase. In addition, the scope of "dual carbon" litigation is becoming more and more extensive.

However, the "dual carbon" litigation in mainland China is not mature enough, and there is a lack of technical support, such as the need for special training for environmental justice personnel in mainland China, and the lack of sufficient legal basis for the trial of some cases.

However, there are relatively few lawsuits in mainland China against relevant policies or the rights of the subject of litigation, while most of the climate change lawsuits abroad are filed against government policies and large enterprises. In this regard, the mainland still needs to continue its efforts.

NBD: What are the shortcomings of the mainland's policies and legislation on carbon peaking and carbon neutrality, and how can we break down the obstacles?

Wang Canfa: First of all, the policies and legislation for carbon peaking and carbon neutrality are not sound enough. This manifests itself in the lack of specific legislation, fragmentation of existing policies and legislation, etc. At present, it is still difficult to see the adoption of specific legislation in this area anytime soon.

Second, there is a lack of effective management and incentive systems. Achieving the "dual carbon" goal requires certain incentives, but the current progress reporting system, carbon evaluation system, information release system, annual report system and accountability system have not yet been fully formed. In addition, effective supervisory management and coordination mechanisms have not yet been fully established.

I suggest that the "dual carbon" policies and legal and regulatory systems should be improved as soon as possible, including the formulation of feasible framework legislation, the formulation of separate legislation, and the introduction of carbon emission trading regulations as soon as possible.

Relevant departments should also formulate specific measures to achieve the "dual carbon" goal, and further strengthen local "dual carbon" legislation. In terms of the content of legislation, it is necessary to clarify the purpose of legislation, set clear goals, emphasize the target responsibility system, and establish an efficient management system.

At the same time, some important systems should be established, such as the carbon emission trading system, the carbon tax system, the carbon evaluation and monitoring system, and the carbon footprint labeling system. In addition, clear obligations should be set for each different entity, and a sound implementation procedure should be established, while at the same time there should be strict liability for violations. In this way, the "dual carbon" policy and legislation can be sound.

Environmental law itself is innovative law

NBD: There is a view that the carbon emission trading system is the core means to solve the problem of climate change and achieve the "dual carbon" goal, but the core issue of the legal nature of carbon emission rights has not yet been determined, whether at the normative or academic level. What do you think about this phenomenon?

Wang Canfa: I think the ETS is just one of many to address climate change. Moreover, I believe that it is not the core means to achieve the "dual carbon" goal, because although the carbon emission trading system can improve the efficiency of emission reduction, it will not play a very big role in the direct reduction of carbon emissions.

The carbon emission trading system needs to cooperate with the carbon emission total control system and carbon emission permit system to play its role, but the mainland's carbon emission total control system and carbon emission permit system have not yet been established, so the current role of the carbon emission trading system should be limited.

There is indeed a great debate about the legal nature of carbon emission rights, that is, what kind of rights are carbon emission rights? The legal circles have different understandings of their attributes, some believe that they are usufruct rights, quasi-usufruct rights, and some think that they are quasi-property rights. Therefore, when enacting legislation, we do not need to argue about its nature, we just need to proceed with the work step by step.

In addition, mainland environmental law has some special theories, which are different from traditional legal principles. For example, traditional law has the principle that the law does not apply retroactively, but environmental law applies retroactivity in many cases, for example, developed countries are responsible for the warming caused by their past emissions, so there are many principles and rules in environmental law that are contrary to traditional legal principles.

Therefore, there is no need to debate much about the legal attributes of carbon emission rights, because environmental law itself is an innovative law.

National Business Daily