Ⅱ.Arrangements of Total Behavior Control System in China's Environmental Law
The control system of total emissions, especially the control system of total emission for pollutants, is typical of the total behavior control system, and perhaps it is also a prototype of the total behavior control system, but it is not the only total behavior control system.In China's current environmental law, the control system of total emission is not the only one which is designed according to the total behavior control thinking or which embodies the system of total behavior control design thinking.[1]After our review of the most representative 20 laws in the environmental laws (hereinafter referred to as “The Common Environmental Law”), the author finds that total behavior control system widely exist in China's environmental law; the following 6 systems are commonly used: (1) the control system of total emission; (2) the control system of total access; (3) fundamental environmental ability maintenance system; (4) nature reserve system and environmental protection red line system; (5) environmental protection list system; and (6) environmental planning system.
A.The Control System of Total Emission
The control system of total emission is an environmental law system which aims to control total substance emission.[2]In the current Chinese law, it is mainly adopted by the pollution prevention law and the environmental law documents prescribing general principles and systems.[3]The earliest document with the provision for total pollution emission control system is the Regulations on Water Resources Protection of Upstream Huangpu River which took effect on 1 October 1985.Article 6 of these Regulations stipulated that “in order to ensure the water quality of the upstream Huangpu River reaches the State Grade 1 and 2 of the ground water standards, the measures for implementing the control of total pollution emission in combination with the control of concentration in the protection areas and quasi protection areas of water resources shall be carried out”.In 1986, this system was included in the State Council documents.The Regulations on the Technical Policies for the Prevention and Control of Water Pollution adopted by the Environmental Protection Committee of the State Council which took effect on November 21, 1986, stipulated that the total control system must be implemented on the pollution in river basins, regions, cities, districts, as well as in industrial and mining enterprises.After that, On Further Strengthening the Work of Environmental Protection Decision[4]and Provisional Regulations on Water Pollution Prevention and Control of Huaihe River Basin[5]promulgated by the State Council, all announced the implementation of this system.Law of the PRC on Prevention and Control of Water Pollution amended in 1996 permits the usage of total discharge control system of pollutants in “people's governments above the provincial level”.Article 16 stipulates that “With regard to water bodies where the standards for water environment quality established by the State still cannot be attained although the discharge of water pollutants has conformed to the discharge standards, the people's governments at or above the provincial level may institute a system for control of the total discharge of major pollutants, and a system for making an estimate before deciding on the quantity of major pollutants to be discharged by an enterprise that is charged with the task of reducing its discharge.”Since then, total discharge control system of pollutants has become the system generally adopted by pollution prevention and control in China.[6]In the chapter of the prevention and control of pollution and other public hazards, Environmental Protection Law newly amended announces The State shall adopt a system of total emission volume control of major pollutants.In this way, the total discharge control system of pollutants has become the fundamental system of the Law on Prevention and Control of Pollution mainly used in the control of key pollutants.
B.The Control System of Total Access
The control system of total access is an environmental protection system whose control objective is the total amount of useful material obtained from natural environment or the total amount of the use of some functions of natural environment, and the system is mainly applied in the resource protection laws and the ecological protection laws.The first Chinese law that adopted the control system of total access was the Forest Law of the People's Republic of China.Article 8 of this laws stipulated that “to allow tree felling within quotas”, and Article 25 stipulated that “The State, acting on the principle that the consumption rate of a timber forest should be lower than its growth rate, imposes strict control on the annual quota for forest felling.”[7]The Fisheries Law of the People's Republic of China also adopts the system by summarizing it as fishing quota system, and the total access control is summarized as the “fishing quota system”(Article 22); another law that stipulates this system is the Grassland Law of the People's Republic of China, and its Article 45, amended and adopted on December 28, 2002, declares that “the State practices a system of basing the number of livestock raised on the grass available and maintaining the balance between the yield of grass and the number of livestock raised.”The “basing the number of livestock raised on the grass available and maintaining the balance between the yield of grass and the number of livestock raised”is actually a principle, which can be transformed into the livestock capacity control system, that is to say, to restrict the total amount of grass for feed on the grassland by restricting the total amount of the livestock raised on the grass like cattle and sheep.In other words, the total access control of Grassland Law is actually the total grass for feed control; the Law of Land Administration of the People's Republic of China also implements the total control system aiming at land for construction purposes to protect the cultivated land.Article 24 of the Law of Land Administration of the People's Republic of China stipulates that “People's governments at all levels shall exercise close supervision over the plans for land utilization and keep control over the total area of land to be used for construction.”The “land to be used for construction”refers to “land for construction means land for constructing buildings and other structures, including land for housing in urban and rural areas, for public utilities, for factories and mines, for communications and water conservancy, for tourism and for military installations”(Article 4).This law's total control access refers to the total amount of land for aforementioned construction uses which is taken from “land for agriculture”[8]and “land unused”; the stipulation that “The State applies a system for the use of water under which control over the total volume is combined with control over the quotas.”Item 1 of Article 47 of Water Law of the People's Republic of China, which stipulates that “the State applies a system for the use of water under which control over the total volume is combined with control over the quotas”, is also about the control system of total access, similar to the total control system of land for construction purposes in the Law of Land Administration of the People's Republic of China and the fishing quota system in the Fisheries Law of the People's Republic of China, and the total access is “the total volume of water to be used annually”(Item 3 of Article 47).[9]
The Overall Plan for Reforming the Ecological Civilization System promulgated by the Communist Party of China (CPC) Central Committee in September, 2015, accepts the idea of the total access control.One of its plans of improving total volume management of resources is to “improve the system for controlling total water usage”, and one of its important designs is establishing the system of controlling total water usage at the provincial, municipal, and county levels in major river basins.[10]
C.Basic Environment Ability Maintenance System
The basic environment ability maintenance system is an environmental protection system which aims to maintain the basic ability or basic function of environment or other necessary environmental conditions for human.From the perspective of current laws, the basic environment ability maintenance system contains two situations: one is aimed at the basic maintenance ability of environment; the other is aimed at the basic function of maintaining other necessary environmental conditions for human.The system for protection of essential grasslands[11]stipulated by Grassland Law of the People's Republic of China, and the basic farmland protection system[12]stipulated by Land Administration Law of the People's Republic of China both belong to the first situation that is a basic environment ability maintenance system aimed at the basic maintenance ability of environment; the “lowest water level”[13]stipulated by Fisheries Law of the People's Republic of China belongs to the second situation that is a basic environment ability maintenance system aimed at maintaining water bodies' basic function of supporting fishery production—the lowest water level.
D.Nature Reserve System and Environmental Protection “Red Line”[14]System
The nature reserve system is a total behavior control system which aims to keep human behaviors away from doing damage to designated areas and specific functions of designated areas.From an intuitive perspective, this kind of system is a region control system or a management system.As a matter of fact, it is a total behavior control system which excludes human behaviors from designated areas.Article 23 of the Marine Environment Protection Law of the People's Republic of China stipulates that no coastal construction project or any other operation that may cause pollution to environment or damage to landscape shall be undertaken within the lawfully delimited marine nature reserves.This article does not specifically aim at certain individuals by declaring that they are not permitted to implement relevant activities, but forbids any individuals from implementing relevant activities by declaring that all subjects are disallowed to implement relevant activities.What this system requires is that the coastal construction projects or any other activities which may pollute the environment shall not be implemented in designated areas, and what's excluded is not just individual behavior, but all the behaviors of individuals, and its purpose is to promote the coastal construction projects or any other activities which will not pollute the environment, or to avoid such projects or any other activities which may pollute the environment
Besides the Marine Environment Protection Law of the People's Republic of China, Grassland Law of the People's Republic of China, Law of the People's Republic of China on the Protection of Wildlife, Fisheries Law of the People's Republic of China, etc.have adopted the Nature reserve system.Article 43 of Grassland Law of the People's Republic of China stipulates that the competent administrative department for grasslands under the State Council or the people's governments of provinces, autonomous regions, or municipalities directly under the Central Government may set up grassland nature reserves in typical grasslands, ranges of rare and endangered species of wild animals, and plants and grasslands of important ecological functions and worthy of economic and scientific research and so on.Article 10 of Law of the People's Republic of China on the Protection of Wildlife stipulates that “the department of wildlife administration under the State Council and governments of provinces, autonomous regions and municipalities directly under the Central Government shall, in the main districts and water areas where wildlife under special state or local protection lives and breeds, designate nature reserves and strengthen the protection and administration of wildlife under special state or local protection and the environment for its survival.”This is a total behavior control system which declares the “districts and water areas”where wildlife under special protection lives and breeds to be nature reserves, and excludes human behaviors from nature reserves for the purpose of protecting wildlife.Article 29 of Fisheries Law of the People's Republic of China stipulates that “The State protects germ plasm resources of aquatic products and their surviving environment, and establishes preservation areas for germ plasm resources of aquatic products in the main regions where germ plasm resources of aquatic products with high economic value and heredity and breeding value can grow and breed.”This is the preservation area which is established to protect germ plasm resources of aquatic products, and this kind of preservation area aims to achieve a total behavior control that no fishing behavior is permitted in the preservation area, except obtaining legal approval.Relevant stipulations can illustrate the point such as the stipulations in Article 29 which follow the stipulations above, “no unit or individual shall be engaged in fishing activities in the preservation areas for germ plasm resources of aquatic products without the approval by the department in charge of fishery administration of the State Council.”[15]
The Law of the People's Republic of China on Prevention and Control of Water Pollution adopts the nature reserve system as well, and its specified nature reserves include drinking water source reserve, waters at famous scenic sites, important fishery waters and other waters with special economic and cultural values.Article 56 of Law of the People's Republic of China on Prevention and Control of Water Pollution stipulates that “the state has established the drinking water source reserve system.”, “Drinking water source reserves are classified into Grade I and Grade II”.In addition, the people's government of the concerned provinces, autonomous regions or municipalities directly under the Central Government is authorized to delimit a certain area at the periphery of a drinking water source reserve as a quasi-reserve, which refers to “it is allowed to delimit a certain area at the periphery of a drinking water source reserve as a quasi-reserve.”(Article 56) Article 64 of the Law of the People's Republic of China on Prevention and Control of Water Pollution stipulates that “The people's governments at or above the county level may delineate protected zones for water bodies at scenic locations or historic sites, major water bodies used for fishing and other water bodies having special economic or cultural value, and take measures to ensure that the water environment quality in those protected zones complies with the standards for their designated uses”.This stipulation has provided a legal basis for relevant people's government at or above the county level to establish the reserves for waters at famous scenic sites, important fishery waters and other waters with special economic and cultural values.
The recent years' practices of drawing “red lines”, “the ecological red lines”in its earliest stage, is similar to the nature reserve system, and it is also an exercise of strictly controlling human's total behavior.On October 17, 2011, the State Council promulgated the Opinions of the State Council on Strengthening the Key Tasks of Environmental Protection, in which the government first proposed that “drawing red lines for ecological conservation in regions with key ecological functions, and terrestrial and marine eco-sensitive and-fragile regions”[16].Paragraph 52 of Chapter 14 of Decision of the Central Committee of the Communist Party of China on Several Major Issues on Comprehensively Deepening Reforms adopted at the Third Plenary Session of the 18th Central Committee of the Communist Party of China also proposed “drawing the red line for ecological protection”.In January 2014, the National Ecological Red Line—Technical Guide for Drawing Red Lines of Ecological Functions (Trial) printed and published by the Ministry of Environmental Protection of the People's Republic of China defined “ecological red lines”as “the minimum space range and the highest/lowest quantity limit which plays a key role in upholding both national and regional ecological security, promoting sustainable development of social economy, and ensuring the health of the people, and is needed to be protected strictly in promoting ecological functions, improving environmental quality, and boosting the efficient use of resources.”[17]
The Overall Plan for Reforming the Ecological Civilization System has approved of drawing red lines, and has applied the environmental protection “red line”system to the protection of basic cropland, which refers to “the system for the protection of basic cropland will be improved and a redline below which the area of China's permanent basic cropland must not fall will be established.To ensure that the area of basic cropland is not diminished, its quality does not deteriorate, and it is not converted to any other uses, the duty of basic cropland protection will be assigned to farming households and every piece of said cropland will be captured through photo-imaging and entered into the national cropland protection database, and its strict protection will be enforced.With the exception of unavoidable cases as specified by law in which basic cropland has to be used as the site of key national projects, no basic cropland may be used for construction purposes.”
E.Environmental Protection List System
The environmental protection list is a system which aims to protect the animals, plants, other protected objects and their living and breeding conditions.
Among the current Chinese laws, the environmental protection list system is mainly adopted by Law of the People's Republic of China on the Protection of Wildlife.It stipulates that there are two kinds of wildlife lists: one is the “list of wildlife under special state protection”, as provided by Article 9 that “the state shall give special protection to the species of wildlife which are rare or near extinction.The wildlife under special state protection shall consist of two classes: wildlife under first class protection and wildlife under second class protection.Lists or revised lists of wildlife under special state protection shall be drawn up by the department of wildlife administration under the State Council and announced after being submitted to and approved by the State Council.”“Lists of wildlife under special local protection shall be drawn up and announced by the governments of provinces, autonomous regions or municipalities directly under the Central Government and shall be submitted to the State Council for the record.”This is the “list of wildlife under special state protection”; the other is the “list of terrestrial wildlife under state protection, which are beneficial or of important economic or scientific value”, which refers to Item 3 of Article 9, that “Lists or revised lists of terrestrial wildlife under state protection, which are beneficial or of important economic or scientific value, shall be drawn up and announced by the department of wildlife administration under the State Council.”Except the Law of the People's Republic of China on the Protection of Wildlife which definitely stipulates the environmental protection list system, some other laws like Fisheries Law of the People's Republic of China, which directly list the animals needed protection[18], have the same function as formulating a protection list.
F.Environmental Protection Planning System
The environmental protection planning system is also the total behavior control system, or a system in line with the design of the total behavior control system.It is an environmental protection system that aims to achieve environmental protection with the form of the State's planning and the power of implementing it.Due to the fact that this plan as the State's administrative tool not only regards planning aims as necessary contents, but also has measures to achieve planning aims, including invested manpower, material resources, financial resources, and even established corresponding administrative system, so its planning aim is anticipated.
There are two such environmental planning systems in China: one is restrictive planning.The “restrictive”here refers to restrain the social activities to exploit and use the nature.The mining planning system regulated in the Mineral Resources Law of PRC belongs to the restrictive planning.Article 17 of this Law regulates “the State institutes a policy of planned mining with regard to mining areas that are embraced in State plans, mining areas that are of great value to the national economy and the specified minerals of which protective mining is prescribed by the State.Unless approved by the competent department under the State Council, no unit or individual may carry out such mining.”The so-called “planned mining”is to forbid unplanned mining or beyond planned mining in essence”.Land use total planning of Land Administration Law also is restriction planning.Comparing planned use with free use, the former has apparent characteristic of restriction.Article 4 of the Land Administration Law regulates that “a strict control on transformation from farm use to construction use”, which is the typical of restraining land use.[19]The other is cycle planning.The “cycle”here refers to recover the original state of the nature.This planning aims to recover the nature which deviates from the original state under the influence of the human.Plans for conversion of the reclaimed into forests or grasslands of the Law of the PRC on Prevention and Control of Desertification belongs to cycle planning.Article 20 of this law regulates that “no people's government at or above the county level located in desertified regions may grant approval to land reclamation along the periphery of deserts or on forest land and grassland.Where land has been reclaimed with adverse impacts on the ecosystems, plans shall be made for conversion of the reclaimed into forests or grasslands.”And that “plans shall be made for conversion of the reclaimed into forests or grasslands”is the governmental plans for “conversion of the reclaimed into forests or grasslands”.It is same to Article 46 of the Grassland Law of the PRC that “the reclaimed grassland shall be restored step by step in a planned way”, which can be regarded as the governmental planning to “restore the reclaimed grassland”.The Regulations on Conversion of Farmland to Forest adopted by the standing committee of the State Council on December 6, 2002, provides that the forestry administration department under the State Council is liable for total planning and annual planning on conversion of farmland to forest (Article 6), which also belongs to cycle planning.
[1] In the research on China's environmental law, researchers tended to discuss the control system of total emission, especially total pollutants emission control system.Other total behavior control systems except total pollutants emission control system either fail to get attention from researchers, or be treated as a system which is the same as or similar to the control system of total emission.
[2] We have divided environmental problems or environmental damage into cumulative emission environmental problems and exhaustion environmental problems.(See Xu Xiangmin (ed.), Environment and Natural Resources Protection Law, Science Press, 2008, p.7; Xu Xiangmin (ed.), Environment and Natural Resources Protection Law (2nd edition), Science Press, 2013, p.6).The term “emissions”mentioned here refers to emissions which lead to radioactive and cumulative environmental damage.
[3] In a state of coordinate with Air Pollution Prevention and Control Law, Water Pollution Prevention Law, Forest Law, Renewable Energy Law and other environmental laws, Environment Protection Law and its predecessor, Environmental Protection Law (Trial) both have the formal feature of environmental basic law, which may also be the reason why some people call them the basic law of environment in our country.But from the content of the law as well as from the indicators such as the mutual relations of the environmental protection specific law which can better reflect the legal status of a legislation, whether the Environment Protection Law in 1989 and 2014, or its predecessor, Environmental Protection Law (Trial), they do not have the status of environmental basic law of our country, although they also stipulate the general principles and main system which Environmental Basic Law should provide.See Xu Xiangmin, Environmental Basic Law: The Necessities of Environment Legal Construction, China Environment, July, 2014.
[4] Decision of the State Council on Further Strengthening the Work of Environmental Protection promulgated in December 5, 1990 proposed to implement total pollutant discharge control and Pollutant Emission Permit system gradually.
[5] Article 9 of Provisional Regulations on the Prevention and Control of Water Pollution in Huaihe River Basin promulgated in August 8, 1995 stipulated that the state adopted water pollutants discharge total control system for Huaihe River Basin.
[6] After the promulgation of Water Pollution Prevention Law, national and local legislation have been adopted total pollutant discharge control system in succession.For instance, Total Atmospheric Pollutant Emission Control Management Method in Taiyuan City examined and approved by Standing Committee of the Shanxi People's Congress in September 29, 1998, Marine Environment Protection Law passed by Standing Committee of the National People's Congress in December 25, 1999, Air Pollution Prevention and Control Law passed by Standing Committee of the National People's Congress in April 29, 2000, Water Pollution Prevention Law amended by Standing Committee of the National People's Congress in February 28, 2008, and so on.
[7] The Provisional Regulation on Formulation of the Annual Forest Cutting Quota promulgated by Ministry of Forestry on June, 1985 is the implementation of Article 25 of Forest Law of the People's Republic of China, and the necessary basis for exercising Article 25.
[8] The stipulation of Article 4 of Land Administration Law of the People's Republic of China that “control system on the usages of land”requires that “A strict control is to place on the transformation of land for farm use to that for construction use in order to control the total amount of land for construction use.”This stipulation shows that “control the total amount of land for construction use”is mainly to control the total amount of land for construction use which is transformed from land for farm use.
[9] Besides Grassland Law, Fisheries Law, Forest Law, Land Administration Law and Water Law, the Circular Economy Promotion Law of the People's Republic of China also stipulates the total access control system.Article 13 of the law stipulates that “The people's governments above county level shall regulate and adjust the industrial structure in their administrative jurisdictions in accordance with control indexes of the discharge of main pollutants, construction land and total water supply volume for their administrative jurisdictions by the people's government at a higher level to facilitate circular economy.New, reconstruction or expansion projects shall meet the requirements of the control indexes of the discharge of main pollutants, construction land and total water supply volume for the administrative jurisdiction where they locate.”The “control indexes of the discharge of main pollutants, construction land and total water supply volume”here means the control indexes under the total behavior control system.
[10] See Paragraph 18 of Chapter 5 of Integrated Reform Plan for Promoting Ecological Progress.
[11] Article 42 of Grassland Law stipulates that “The State practices a system for protection of essential grasslands.The following grasslands are defined as essential grasslands and shall be placed under strict control: (1) important pastures; (2) meadows; (3) man-made grassplots used for pursuits of animal husbandry, grassplots restored from reclamation, improved grassplots and bases for seeds of forage or grass shoots or tissues; (4) grasslands that play a special role in readjusting the climate, conserving the sources of water, preserving water and soil, providing shelter from the wind, and fixing sand; (5) grasslands that provide the living environments for wild animals and plants under special protection by the State; (6) bases for grassland research and experiments in teaching; and (7) other grasslands that should be defined as the essential ones in accordance with the regulations of the State Council.”
[12] Article 34 of Land Administration Law stipulates that “The State practices the basic farmland protection system.The following cultivated land shall be demarcated as basic farmland protection areas and subject to stringent control according to the general plans for the utilization of land: (1) Cultivated land in the grain, cotton and oil-bearing crops production bases approved by the land administrative department of the State Council or the local people's governments at and above the county level; (2) Cultivated land with good water conservancy and water and soil conservation facilities and medium-and low-yielding land where the execution of amelioration plan is in progress or medium-and low-yielding land that is transformable; (3) Vegetable production bases; (4) Experimental plots for research and teaching; (5) Other cultivated land that shall be designated as basic farmland protection areas as provided for by the State Council.”
[13] Article 33 of Fisheries Law stipulates that “For water bodies that are used for fisheries and also serve the purposes of water storage and regulation and irrigation, the departments concerned shall fix the lowest water level required for fishery.”
[14] People seem to have accepted the concept of “ecological red lines”.This so-called “ecological red lines”shall probably refer to the red lines serving for ecological protection, but in practice of environmental protection, not all of the “red lines”actually used are only serving for ecological protection.The “redline below which the area of China's permanent basic cropland must not fall”(Paragraph 17, Chapter 5) stipulated in Integrated Reform Plan for Promoting Ecological Progress is not serving for ecological protection, but for maintaining the basic environmental ability of territorial resources to produce crops.However, the author thinks that, the phrase “environmental protection red line”is better for comprehensively reflecting the abundant connotation and extension of red line system which is applied in environmental protection.
[15] The banned fishing areas and banned hunting areas systems are also set up in Chinese law.Article 30 of Fisheries Law stipulates that “The varieties of fishery resources under key protection as well as their fishable standards, the banned fishing areas and the banned fishing periods, fishing facilities and fishing methods prohibited to be used, the smallest size of mesh, and other measures to protect fishery resources shall be stipulated by the department in charge of fishery administration of the State Council or of the provincial, autonomous regional, municipal people's governments.”This stipulation authorizes the department in charge of fishery administration of the State Council or of the provincial, autonomous regional, municipal people's governments to stipulate the banned fishing areas.Article 20 of Law on the Protection of Wildlife stipulates that “In nature reserves and areas closed to hunting, and during seasons closed to hunting, the hunting and catching of wildlife and other activities which are harmful to the living and breeding of wildlife shall be prohibited.”This stipulation authorizes the governments at or above the county level or by the departments of wildlife administration under them to stipulate the banned hunting areas.The total behavior control objective of banned fishing areas and banned hunting areas is to prohibit some behaviors in accordance with law, in other words, the behavior prohibited by banned fishing areas system is “going fishing in the banned fishing areas or within the banned fishing periods”, while the behavior prohibited by banned hunting areas system is “the hunting and catching of wildlife and other activities which are harmful to the living and breeding of wildlife”.Thus, the functions of banned hunting areas, banned fishing areas in total behavior control are the same as the nature reserves, and banned hunting areas, banned fishing areas and nature reserves shall belong to the same system.
[16] Opinions of the State Council on Strengthening Major Environmental Protection Work, (No.35 [2011] of the State Council).
[17] National Ecological Red Line: Technical Guide for Drawing Red Lines of Ecological Functions (Trial) (attachment No.10 [2014] of the Ministry of Environmental Protection).
[18] Article 37 of Fisheries Law stipulates that “The State carries out key protection on aquatic wild animals which are valuable or in severe danger such as white-flag dolphins, etc.in order to prevent them from dying out.It is prohibited to fish and kill, or hurt the aquatic wild animals under the State's key protection.”
[19] The Circular Economy Promotion Law takes concerted action on legislation with the Law of Land Administration and Water Law.Paragraph 1 of Article 13 of the Circular Economy Promotion Law regulates “the people's governments above county level shall plan and adjust the industrial structure in their administrative jurisdictions in accordance with control indexes of the discharge of main pollutants, construction land and total water supply volume for their administrative jurisdictions given by the people's government at a higher level to facilitate the development of circular economy.”