On Total Behavior Control System in China's Environmental Law

XU Xiangmin^[1]

［Abstract］　Environmental law, which takes total behavior control as its direct goal of regulation, permits law enforcement officers to set certain objectives and take action accordingly．The salient feature of the environmental law that implements total behavior control doctrine is that it does not care about the behavior of natural persons and enterprises as individuals, instead it aims to take control of total impact on the environment and total behavior which results in such total impact．The total behavior control system in China's environmental law mainly comprises the control system of total emission, the control system of total access, the basic environment ability maintenance system, the nature reserve system, the “red line”system and the list system of environmental protection, and the environmental planning system．The reason why the total behavior control system fails to bring about the success of environmental protection as expected is closely related to the following factors: (a) the fact that it is not a widely adopted system in China's environmental law and regulations; (b) the fact that it is marginalized in China's legal system for environment; (c) the fact that the total behavior control system claimed to be established by relevant law lacking the support of operable procedures; (d) the fact that the total behavior control system claimed to be established by the law is not ready to hold relevant governmental authority liable for it; and (e) the fact that the implementation of current laws cannot ensure that the indicators of total behavior control meet the standard for environmental quality which is needed by the society.

［Key words］　Total Behavior, Total Behavior Control System, Total Quantity Control, China's Environmental Law

The basic legislative model of China's environmental laws is to set the code of conduct and stipulate the punishments for offenders．Its immediate goal is to regulate the behaviors of the subjects such as natural persons and legal persons．The legislation has its immediate goal to regulate the behaviors of the subjects such as natural persons and legal persons, relies upon the implementation of law enforcement agencies, including the implementation of statutory penalties．This legislative model has been generally adopted in China, no matter the Environmental Protection Law of the People's Republic of China issued in 1989 (hereinafter referred to as the Environmental Protection Law of 1989), or the Environmental Protection Law of the People's Republic of China amended in 2014 (hereinafter referred to as the Environmental Protection Law of 2014), or the laws on prevention and control of pollution such as the Law of the PRC on Prevention and Control of Water Pollution (hereinafter referred to as Law on Prevention and Control of Water Pollution), or the laws relating to resources protection such as the Forest Law of the People's Republic of China (hereinafter referred to as Forest Law), or the laws relating to ecological protection such as the China's Wildlife Protection Law (hereinafter referred to as Wildlife Protection Law), or the laws relating to preventing environmental degradation such as the Law of the PRC on Prevention and Control of Desertification^[2](hereinafter referred to as Law on Prevention and Control of Desertification)．In addition, in a system comprising of many special environmental laws and regulations, there is still another kind of legislative model, known as the total behavior control mode, whose immediate regulation goal is the total behaviors of different subjects and their resulting total effect．Many scholars are examining the perfection of the environmental legislation because they have noticed that the environment has not effectively been improved over a long period and that the environmental protection efforts have led to no obvious outcome^[3]; It is evident that the analysis of different models adopted in the environmental legislation including the total behavior control will help deepen the understanding of the degree of perfection of the environmental laws.

[1] XU Xiangmin, professor of Law School, Tianjin University．This paper is the partial fulfillment of “Report on China's Legal Development of Environmental Law”(No.: 13JZD041) funded by the Development Report of Social Sciences by the Ministry of Education.

[2] The PRC environmental laws, which consist of many legal documents, roughly include two subsystems of the laws on environmental protection affairs and means (also referred to as the two “matrixes”), the laws on environmental protection affairs roughly include laws relating to prevention and control of pollution, resources protection, ecological protection and prevention of environmental degradation．See Reflections on the matters of environmental law system by Xu Xiangmin and Gong Gu, Legal Forum, Issue 2, 2009; Also refer to Xu Xiangmin (ed.), Report on the Construction and Development of China's Environmental Law System (2010), People's Publishing House, 2013, pp.55-107.

[3] Quite a few researchers make criticism on environmental laws and their enforcement, based on the fact that the increase in environmental laws has not yet brought corresponding improvement in the environment．See Sun Youhai, The Basic Experience and Existing Problems in China's Legislation on Environment Since the Reform and Opening, Journal of China University of Geosciences, Issue 4, 2008; Wang Canfa, The Glories, Challenges and Perspectives of Environmental Laws, Political and Legal Forum, Issue 3, 2010; Wang Jin, On the Factors of the Dysfunction of China's Environmental Laws: An Analysis of the Impact on China's Environmental Laws by the Ruling Factors, Journal of Shanghai Jiao Tong University, Issue 1, 2012.