Ⅰ．Design of Total Behavior Control

“To set code of conduct and specify punishments for offenders”is a legislative model generally adopted by administrative laws and regulations．This type of design, which can be simplified as “code and penalty”, can be called the illegal Act Punishment Doctrine．Environmental law implementing this type of design takes the concrete behavior as the direct goal of regulation in pursuit of no violation of the law．By adopting this legislative model, the legislators often cannot predict the effect of the implementation．With special reference to the environmental laws, the legislators cannot predict to what extent the efficacy of environmental protection can be achieved by the implementation of the law, because the result of environmental protection is determined by the behaviors of the environmental subjects (referred to as the obligators), rather than the obligators' compliance and the enforcement officers' enforcement．The obligators' compliance and the enforcement officers' enforcement will definitely produce some results, but may not necessarily improve up to certain standards．Take the prevention and control of water pollution as an example．Even if all the sewage enterprises discharge pollutants in accordance with the effluent standards stipulated by the law on the prevention and control of water pollution, and pay sewage fees and excessive sewage charges according to the law; even if all the law enforcement officers strictly enforce the law, all polluters are mandatorily required to discharge in accordance with the statutory effluent standards, and the punishments under the law are strictly carried out among all violators, the implementation results may be that the water body that takes sewage emissions are seriously polluted or the river basin that accepts pollution discharge are seriously polluted.^[1]Such law can regulate the pollutant-discharge acts though, there is no guarantee for the effective environment improvement．The implementation of this law means to restrict the these acts, but it does not necessarily deliver the results of the environmental protection expected by the society, i.e．such “cause”for the implementation of the environmental law does not necessarily produce the environment of certain quality expected by the society as a “result”.

Environmental protection is not a “just-do-it”work, but is the work that must be done to a certain extent until the expectant results are achieved．“The results expected by people”here mean that they are generally harmless to people, and the environment is made to achieve or maintain a certain “quality”needed by mankind.^[2]The environmental law based on the model of “code and penalty”may necessarily produce such effect．Specifically, even though the people who destroy the forest shall according to the law re-plant the trees “whose number is greater than one time but no more than three times of the destroyed trees”^[3], the forest coverage rate in China cannot reach the high level as comparable to the United States or Japan, or the level needed for people's lives or ecological protection in a certain area．For all marine construction projects in a certain sea area, the environmental protection facilities can be “designed, constructed, and put into use at the same time together with the principal part of the project”^[4], which under the conditions that other sources of pollution stay stable, is not necessarily connected with whether water quality in certain sea area can reach Grade 1 or 2 or not．All fishing boats use fishing gear legally and fishing activities are only carried out in non-prohibited fishing period and areas, which do not necessarily bring restoration to fishery resources．These are the facts that environmental protection practices have repeatedly stated and proved.

The author would like to propose a new legislative idea, which permits law enforcement officers to set certain objectives and take actions accordingly, typically the total discharge control system of pollutants．The so-called total discharge control system of pollutants is that the competent authorities with the power of decision or the law enforcement authorities determine or legally determine the total amount of pollutants that can be discharged into a certain environment unit or environmental space, i.e．total control．This system requires and legally enforces that those who discharge pollutants into relevant environmental units or environmental spaces that can only discharge the amounts within the range of total control determined by it or determined by law.

The core of the total discharge control system^[5]is to make the total amount of the actual emission of a certain environmental unit or the environmental space less than or equal to the total amount of the control system．The salient feature of the legislative model of the total behavior control is that it does not care about the behaviors of natural persons and enterprises as individuals and single result of individual behaviors; instead, it only focuses on the total results caused by numerous individual behaviors．“The total amount of control”is a designed amount for numerous pollutant dischargers, and the actual total discharge is the total result of the discharge behavior for numerous pollutant dischargers．The legislative design of the total behavior control takes into consideration only the relationship between the “total control”and the actual total amount of emissions, and the means to deal with such relationship is the management behaviors of the administrative agencies rather than certain behavior standards put forward by the law.

The objective of environmental protection to be achieved by the legislative model of the total behavior control is the total behaviors of the numerous actors．Accordingly, we can call the control system of the legislative design the “total result control system”．The concept of “the total control system”used by the academic community is the name given in this sense．Further research on the implementation process of the system will show that the objective of this control system is the result of people's behavior, and it refers to the behavior result of the dischargers in the case of the pollution prevention and control．The control of the total result of the pollutant emissions is actually through the control of the behavior of the human (the numerous dischargers)．To control the actual total amount of emissions and make the actual emissions less than or equal to the total control, the total behavior of the discharger into certain environment units or environmental space must be under control, and it means to control the “total result”of the total behavior causing actual amount of emissions.^[6]The total discharge control system is essentially the control of the total behavior of different dischargers who discharge emissions into certain environmental unit．Given that the adjustment function of law occurs in the process in which the law affects the people and people's behaviors, so it is more reasonable to call the system the total behavior control system．Accordingly, this legislative design embodied in total behavior control system can also be called the total behavior control doctrine.

Compared with the environmental law on the model of “code and penalty”, the most prominent advantage of the total behavior control system is that the expected results of environmental protection can be achieved through effective enforcement．In the case of the total discharge control of pollutants, the total amount of control is determined by competent authorities with the decision right or law enforcement authorities or by law．If the control measures are effective, actual total amount of emissions will definitely be less than or equal to the amount of the total control provided that the emission behaviors of the discharger are under effective control．By adopting this legislative model, the legislators will be sure that effective enforcement will definitely result in the actual total amount of emissions less than or equal to the total control．If the total control is specified in accordance with the demand for environment quality, the legislators can be sure that effective law enforcement is bound to achieve the environmental quality objectives embodied in the total control.^[7]

[1] Article 16 of Law on Prevention and Control of Water Pollution which was revised and passed in 1996 confirms that there is a case that “The standard discharge of water pollutants still fails to reach the standard of water environment quality stipulated by the country”, which is also proved repeatedly by facts.

[2] About analyses on the status of environment quality in Environmental Laws and the relationship between environment quality and environment legislation, see Xu Xiangmin and Zhu Wen, The Essential Characteristics of Environmental Interest, Legal Forum, 2014(6).

[3] Article 44 of The PRC Forest Law stipulates that “the person who violates the provision of the law and who does reclamation, quarrying, sand extraction, soil mining, seed harvesting, resin trapping and other activities which result in the destruction of forest or trees should pay compensation for the losses according to the law．Violators whose illegal act should be ordered to stop by the competent forestry department shall according to the law replant the trees whose number is greater than one time but no more than three times of the destroyed trees and be fined over one time but no more than five times the value of destroyed trees．The person who violates the provision of the law to chop firewood and graze in young forest and forest for special use which result in the destruction of forest or trees should pay compensation for the losses according to the law．Violators whose illegal act should be ordered to stop by the competent forestry department shall according to the law replant the trees whose number is greater than one time but no more than three times of the destroyed trees．The competent forestry department replant trees in place of violators who shall pay for the cost if violators refuse to replant trees or the replanted trees don't conform to relevant stipulations of PRC”.

[4] See the stipulation of Article 48 of The Marine Environment Protection Law of the People's Republic of China．In addition, Article 44 of the law also puts forward the demand of “three-simultaneousness”．Article 44 of the Marine Environment Protection Law stipulates that “coastal project construction's environmental protection facilities must be designed, constructed and put into use at the same time together with the principal part of the project．Without the examination and approval of the competent department of environmental protection administration on environmental protection facilities, construction projects are not allowed to test running．Without the acceptance on environmental protection facilities of the competent department of environmental protection administration or with the unqualified result of check, construction projects are not allowed to put into production or use”．Article 48 stipulates that “marine project construction environmental protection facilities must be designed, constructed and put into use at the same time together with the principal part of the project．Without the examination and approval of the competent department of marine administration on environmental protection facilities, construction projects are allowed to test running．Without the acceptance on environmental protection facilities of the competent department of marine administration or with the unqualified result of check, construction projects are not allowed to put into production or use”.

[5] People are more familiar with the total discharge control system of pollutants．Actually, the total discharge control system we can find in the PRC of the environmental law is beyond the pollutant prevention domain．Global carton emission control system which is asked to establish in overall plan for the reform of ecological civilization system is not in the range of pollutant prevention．Therefore, the total discharge control system mentioned in this paper is the environmental law system that comprises the total discharge control of pollutants but not subject to it.

[6] The ideas of Mr．Wu Xiaoming can help us recognize the total behavior which is similar to the total activity of Philosophy．The result of one his research is that “it is historical materialism that is possible to really lead scientific research and analysis toward social and historical phenomenon．Only to understand the essence of social and historical phenomenon and to analyze the root of historic incident on the basis of investigation on the development of social relationship system and the total activities of masses, can we explain the existence, conflict and change of concept, thought, ideology and thus have a command of creative dialectics in the course of history．See Wu Xiaoming, Historical Materialism: The Scientific Guideline to Analyze Society and History, Fudan Journal (Social Sciences Edition), Issue 1, 1992.

[7] In order to produce an ideal environmental protection effect, the total behavior control system should propose a requirement for the determination of total quantity control, that is, to determine the total quantity control according to the requirements of achieving a certain environmental quality objectives, which will be mentioned below．The total behavior control system is adopted in our environmental law, but its implementation has not produced an ideal environmental protection effect．One of the main reasons is that the law has not proposed environmental quality goals and requirements for how to determine the total quantity control, and the total quantity control determined by law enforcement is not based on the realization of some environmental quality objectives in the practice of environmental protection.