Ⅲ．Review of Gains or Losses on the Practice of Total Behavior Control System

If the environmental law is formulated according to the model of total behavior control, the legislators can make an accurate prediction about the results of law implementation．If the total behavior control system is implemented according to the design idea of total behavior control, the State can achieve some predefined environmental protection objectives．The total behavior control system is an effective system to realize the harmony between human and nature required by establishing the ecological civilization．In the relationship between human and nature, which is reflected by the water pollution control law, the harmony between human and nature is intrinsically required by the relationship between the sewage volume and the actual total amount of the sewage in a certain water body．If the total amount of the pollutants exceed the sewage volume (we can call it the emission deficit), then the relationship between man and nature is unharmonious; if the actual total amount of the pollutants is under the sewage volume (we can call it the emission surplus), then the relationship between man and nature is harmonious．The Water Pollution Prevention and Control Law uses the control system of the total amount to control the total impact of human behavior; the human behaviors are not allowed to exert influence upon the water body beyond its sewage volume so that the harmony between human and nature could be achieved．In the practice of forest management, the situation China is confronted with is that the forest resources continue to decrease, which is unharmonious．The harmonious relationship between human and nature can be realized to a certain degree if the area of forest coverage does not decrease or “increases the area of forest coverage”^[1]can be ensured．Another disharmony in the forest management is the continued decline of wood reserves．The Forest Law uses the control of the quota cut to stop the impact of human behavior upon the forests．The harmonious relationship between human and nature in terms of the forest protection can be achieved provided that such impact is under control to the extent that it will not reduce the forest coverage and the wood reserves．According to Convention on Biological Diversity, to protect rare animals and endangered animals can maintain biological diversity, therefore “the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere”can be achieved, i.e．the harmony between human and nature．The harmony between human and nature can be best illustrated by the fact that the efforts to maintain biological diversity have played an active role in meeting the food, health and other needs^[2]of the growing population in the world．Wildlife Protection Law of the PRC sets nature reserves and areas closed to hunting to provide the wildlife with enough areas to live and breed without the influence of human activities, in order to allow protected wildlife reproduce undisturbed, so that the harmony between the human and the nature can be achieved．The harmony between human and land is also achieved by planning and implementing water and soil conversation programs, which maintain or improve the water and soil conditions of certain area (watershed or small watershed) and the value of land use．Some experts are of the opinion that water and soil conversation is an important and pressing strategic task in 21st century, which is closely related to the long-term plan of Chinese national survival and development.^[3]Such judgment also implies that the implementation of the planning and control of Water and Soil Conservation Law contributes to the long-term harmony between human and nature.

The practice of environmental protection in China fails to conclude that it is positive to verify the function of this total behavior control system．Although the total behavior control system has been established in China's environmental laws or some of the specific environmental laws, such a system has not brought forward the expected results to environmental protection in China．If the environmental law with the illegal act punishment doctrine suffers a failure in the practice of environmental protection, then this opinion also declares the failure of the total behavior control system of China's environmental law．The total behavior control system goes hand in hand with the legal system of the illegal act punishment doctrine．The failure of the environmental law is applicable to the evaluation of both the environmental law with the illegal act punishment doctrine and the total behavior control system.

Theoretically, the environmental laws under the design of total behavior control system contribute to the environmental protection and the realization of harmony between human and nature．The system adopted in China did not lead to the desirable results of environmental protection as expected, the reason for which is worth further exploration．Based on the above analysis, the author is of the view that the failure of such system to meet those predefined objectives can be mainly attributed to the following five aspects:

Firstly, total behavior control system is not a widely adopted system in the PRC environmental law and regulations．Although there is the total amount control system of key water pollutant stipulated in the Law of the PRC on Prevention and Control of Water Pollution, and the total amount control system of pollutant discharge in key sea areas stipulated in the Marine Environmental Protection Law of the PRC, and the logging quota system stipulated in the Forest Law of the PRC, not all specific environmental laws have adopted the legislative design in which total behavior control system is clearly defined．In the 20 common environmental laws, only 10 adopt the total behavior control system,^[4]accounting for only 50％．In addition, although some specific environmental laws put forward the principles and requirements of the total behavior control, but the total behavior control system has not been well established in those laws．Take the Law of the PRC on Water and Soil Conservation as an example．Except for the regulations on the ownership of the water and soil conservation planning and the requirement to implement and administer water and soil conservation plans by the people's governments at or above the county level,^[5]it has no provisions regarding the total behavior or total impact, let alone the definite system plans.

Even if the total behavior control system is believed to be an effective system, and there is no doubt about its function, the general success of environmental protection through environmental laws may not be achieved.

Secondly, the total behavior control system is operated on the “margins of China's legal system”．Many specific environmental laws have relevant provisions regarding the total behavior control system, which are an integral part of certain legal documents or of the institutional system of environmental laws and regulations, but the total behavior control system is not in a dominant position in the institutional system established by relevant laws or the general institutional system of China's environmental laws.^[6]Neither the system of the total emission control or the control system of total access, nor the protection zones system or the protection lists system, have become the central of the institutional system established by relevant legal documents, and it is more evident that they are marginalized by the general institutional system of environmental laws.^[7]For example, Article 3 of the Marine Environmental Protection Law stipulates that “The State shall establish and put into practice a system of controlling the total sea-disposal pollution discharge for the key sea areas, determine the standards for controlling the total sea-disposed main pollutants discharge and shall assign controlled pollution discharges to key pollution sources.”If this provision claims the establishment of total emissions control system for key sea areas, then in the Marine Environmental Protection Law which consists of 98 articles, only Article 10 can be deemed as a response to Article 3．Article 10 requires that the State and local governments use indicators of total control of major pollutants discharged into the sea as the basis for the formulation of the standards for discharge of water pollutants.^[8]In other words, the Marine Environmental Protection Law issued by the legislation, which takes the pollution prevention and control as its central task, is mainly supported by other systems rather than the “total emissions control system for key sea areas”.

The total behavior control system has not become the core of environmental laws, even if it has positive effect on the harmony between human and nature and it is stipulated in relevant laws, those laws cannot effectively promote the harmony between human and nature.

Thirdly, the total behavior control system claimed to be established by relevant laws lacks operating procedures．The basic system or major system of a legal provision shall be truly operated with the support of many procedure norms or other operation norms．Take the Law of Land Administration as an example．This law is the best example of adopting the design idea of the total behavior control and the total behavior control stipulated by that law consists of two important branches: One is a strict control system on the usages of land (Article 4), and the other is general plan system on the usages of land (Article 4), which can only be implemented by the support of the land survey system (Article 27) and the land statistical system (Article 29), and be functioned by specific land use and approval action played by the system of the areas defined for the utilization of land (Article 20), the land use classified approval system (Article 21) and the annual plan for the land use system (Article 24), and the effective operation needs the cooperation of urban general planning and the planning of villages and market towns (Article 22) and the plans for the comprehensive control, development and utilization of rivers and lakes (Article 23)．The land use control system is composed of the cultivated land protection system and the aggregate land control system for construction purposes (Article 24), and the cultivated land protection system is regulated by one chapter (Chapter Four) of the Law of Land Administration and the specific requirements of the aggregate land control system for construction purposes are in Chapter Five composed by twenty-three articles (from Article 43 to Article 65)．In the numerous provisions of laws, we can easily find the systems and requirements, such as the system of protecting the basic farmland (Article 34) and contractors for the land operation being obliged to protect and use the land rationally according to the usages specified in the contracts (Article 15)．It is such a large and tightly organized system group and the standard group that makes up the total behavior control system of land management to run smoothly, and the other provisions of the law of the total behavior control system are not the case．For example, Marine Environmental Protection Law stipulates the key sea areas discharge total amount control system only in two articles, and there are no operation norms designed for this system or procedures provided for the relevant department implementing this system．Another example, Law on the Prevention and Control of Desertification formulates the principle “determining livestock-carrying capacity according to grass production”of grass administration．However, except for declaring to “practice”^[9]this principle, what the law enforcement officers can obtain the related information from this law is only the authorization by virtue of the provision that “the agriculture (animal husbandry) administration department shall be responsible for determining the rate of livestock-carrying capacity and formulating related regulations, making arrangements for their implementation level-by-level and defining responsibilities to ensure accomplishment”(Article 18)．In these laws, the total behavior control system is seemly a declaration that relevant legislative departments have accepted it, instead of preparing to take it into practice．Such a declaration is apparently not functioning as a legal institution.

Fourthly, the total behavior control system is not ready to hold relevant governmental authority liable for it．The legal essence of the total behavior control system allows the government to be liable to it,^[10]because only the government can control the total behavior and be responsible for the total influence of the total behavior．The stipulation that “the State applies the system under which the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall assume the responsibility for conversion of farmland to forests”^[11]of the Regulations on Conversion of Farmland to Forests issued by the State Council seemly proves that．According to the logic of illegal act punishment doctrine, it must regulate the form of the governmental responsibility before the government being liable for it．The Law of Land Administration requires the people's governments of all provinces, autonomous regions and municipalities who reduce the total amount of cultivated land to organize land reclamation within the prescribed time limit to make up for the reduced land in the same quantity and quality,^[12]which is a form of being responsible for the result of the total behavior．The Regulations on Conversion of Farmland to Forests requires the governments to sign responsibility agreements at all levels in a bid to achieve the objective of conversion of farmland to forests,^[13]which should include the responsibility of local people's governments of all provinces, cities and counties．Most other specific environmental laws regulate the total behavior control system without terms about the governmental responsibility．Under the situation that many local governments take the economic development as the key task, it is very difficult to make achievements from the environmental law system without taking governmental responsibility.

Finally, the implementation of current laws cannot ensure that the indicators of total behavior control meet the environmental quality standards as expected by the society, or meet the provision of Article 64 of the Law on Prevention and Control of Water Pollution, “environmental quality standard of water with specified uses”．It is the most important reason for the failure of the total behavior control system in the current laws to deliver the environmental protection performance．Take total discharge control system of water pollutants as an example．Its design principle is on the basis of environmental pollutant capacity—pollutant capacity determines the total discharge control of pollutants．Its premise is that environmental regions such as certain regions or watershed are taken as units, and the total amount of allowable emissions, which is a safety amount, is determined according to the water quality required by the society．The environmental units which take the pollutants within the total amount of allowable emission are still safe and healthy, or that they are still meet the water quality requirements．Total amount of allowable emission in any water body or watershed environment can be calculated according to certain water quality requirements．Some scholars call it “the total amount of allowable emission from all the discharge units in a given period”．If the total control amount is determined by the total amount of allowable emission, i.e．the total amount of allowable emissions is controlled within the total control amount of allowable emissions,^[14]and then the actual total amount of emissions is controlled within the total control amount of allowable emissions, the goal of prevention and control of pollution comes true．In the 20 environmental laws of China, most of the total behavior control systems in existence are not designed in this way．The prevailing problem is that: the total control amount is greater than the total amount of allowable emissions.

To conclude, in order to effectively maintain the harmony between human and nature with the total behavior control system, the restrictions of another legislative model—environmental quality objective doctrine which has existed in China's environmental laws should be taken into account.

[1] See Article 8 of Forest Law.

[2] See Preface of Convention on Biological Diversity.

[3] See Bulletin on National Water and Soil Conservation Monitoring 2003·Review.

[4] They are Marine Environmental Protection Law, Law on the Prevention and Control of Atmospheric Pollution, Law on Prevention and Control of Desertification, the Grassland Law, Law on the Protection of Wildlife, Fisheries Law, the Law of Land Administration, Law on Prevention and Control of Water Pollution, Forest Law, and Environmental Law (Latest Revision).

[5] See Article 7 and 21 of Law of the PRC on Water and Soil Conservation.

[6] As stated before, only ten of the twenty “common environmental laws”regulate the total behavior control system, and what can be speculated from the figure is that the total behavior control system does not become the core of our country's systems of environmental laws.

[7] Among the twenty “common environmental laws”, only the Law of Land Administration applies the total behavior control system most adequately.

[8] Article 10 in Marine Environmental Protection Law (1999) stipulates that “the regulation of standards for discharge of water pollutants in the State and local places, shall take standards for marine environment quality of the State and local places as one of the important bases．In the key sea areas where the State establishes and implements total emissions control system, the regulations of standards for discharge of water pollutants shall take control indicators of the total amount of major pollutants discharged into the sea as an important basis.”

[9] It is in accordance with “basing the number of livestock to be raised on the grass available and maintaining the balance between the yield of grass and the number of livestock raised”in Article 45 of Grassland Law.

[10] We have had a supposition that “a more powerful government is the basic guarantee of effective environmental protection, and environmental law shall be a kind of law to create a more powerful government and to be executed by the more powerful government”(See Xu Xiangmin, Three Suppositions in the Science of Environmental Law, in Xu Xiangmin(ed.), China Environmental Law Reviews (2011), Science Press, 2011, pp.11-19)．From the requirement to implement the total behavior control system, environmental law needs not only a powerful government, but a responsible government.

[11] See Article 7 of Regulations on Conversion of Farmland to Forests.

[12] See Article 33 of Law of Land Administration.

[13] See Article 7 of Regulations on Conversion of Farmland to Forests.

[14] See Meng Wei (ed.), Control Technologies and Demonstrations of Water Pollutants in River Basins, China Environmental Science Press, 2008, p.18.