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Shirong Fang Binglin Tan On the Administrative Law of China in Addressing Climate Change On the Administrative Law of China in Addressing Climate Change · Shirong Fang Binglin Tan On the Administrative Law of China in Addressing Climate Change Shirong Fang Binglin Tan School of Law Zhongnan University of Economics Zhongnan University of Economics and Law and Law Wuhan, Hubei, China Wuhan, Hubei, China Translated by Yahui Jin School of Foreign Studies Zhongnan University of Economics and Law Wuhan, China Supported by the National Social Science Fund 2011 Key Projects (Project Approval Number: 11AFX011). ISBN 978-981-19-7704-6 ISBN 978-981-19-7705-3 (eBook) https://doi.org/10.1007/978-981-19-7705-3 Jointly published with Huazhong University of Science and Technology Press The print edition is not for sale in China (Mainland). Customers from China (Mainland) please order the print book from: Huazhong University of Science and Technology Press. Translation from the Chinese Simplified language edition: “回应低碳时代: 行政法的变革与发展”by Shirong Fang and Binglin Tan, © China Social Sciences Press & Huazhong University of Science and Technology Press 2016. Published by China Social Sciences Press. All Rights Reserved. © Huazhong University of Science and Technology Press 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. 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The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Brief Introduction of the Content It is a common concern of the international community in today’s world that we should actively respond to the crisis of global climate change. The fundamental way to implement it is to lower dependence on fossil energy, decrease the density of greenhouse gas emissions caused by production and consumption, and finally realize the low-carbonization of global economic development and social life. This will be an epoch-making model of economic development and social life. In this model, we may deal with social aspects like politics, economy, science and technology, culture, lifestyle, and so on, and we need the joint action of all members of society. Also in this model, the government will play an irreplaceable leading and organizing role. It will face the new administrative function of promoting the development of a low- carbon economy and constructing a low-carbon society. Administrative law, as a legal system to regulate government behaviors, thus has a mission of the age to deal with climate change. This book puts forward new thinking on how the theory and system of China’s administrative law can meet the requirements of the low-carbon era, with the basic content and structure of administrative law as the analytical framework. And from the two dimensions of restraining the government’s own activities to meet low- carbon requirements and prompting the government to effectively perform the new function of implementing low-carbon regulations, this book systematically studies the due changes and developments of theories and systems like the basic principles of administrative law, administrative entities, administrative actions, administrative processes, and administration liability. This book is the present first legal monograph devoted to low-carbon administration in the field of administrative law, with novel, prospective and pertinent viewpoints, unique analysis, rich content, and detailed information. The publication of this book can provide a reference for the legal circles to further explore the legal issues of climate change, and also provide a useful reference for the practical circles to make relevant decisions. v Introduction1 This is an era of global warming, but also an era for research on global warming. William D. Nordhaus2 Problems and Background Global climate change has brought about the crisis of the survival of human beings. It is mainly caused by the heavy use of fossil energy in the social and economic development of human activities, especially in developed countries since the industrial revolution. And the activities have created a significant increase in the concentration of greenhouse gases such as carbon dioxide in the atmosphere and an abnormal enhance- ment in the greenhouse effect. The Copenhagen Accord, adopted in December 2009, clearly states: “climate change is one of the greatest challenges of our time ... deep cuts in global emissions are required according to science ... to reduce global emissions so as to hold the increase in global temperature below 2 °C”.3 Thereafter, an international consensus has been reached that the fundamental way to deal with climate change lies in achieving low carbonization of global economic development and social life by reducing dependence on fossil energy, and the density of greenhouse gas emissions caused by production and consumptions. 1 Part of this section was published in On Government Functions and Administrative Acts in Promoting Low-carbon Society Construction, Legal Science, no. 6, 2011. 2 A US economist, Sterling Professor at Yale University, and the world’s leading economist on climate change. 3 Copenhagen Accord (2009), http://unfccc.int/resource/docs/2009/cop15/eng/l07.pdf. On March 9th, 2010, China wrote to the UNFCCC secretariat and indicated its formal rectification of would formally ratify this accord. See Liu Lu, China Formally Approve the Copenhagen Accord, http:// www.caijing.com.cn/2010-03-10/110393253.html, ht Financial, accessed September 13th, 2010. vii viii Introduction In 2003, the UK issued Energy White Paper “Our energy future—creating a low-carbon economy”, in which the concept of “low-carbon economy” was first put forward, and the goals of cutting its emissions of greenhouse gases by 60% from 1990 level by around 2050 was set.4 FrameworkActonlow-carbon,GreenGrowthofSouth Korea amended in 2013 set the goal of “low-carbon” as “lowering dependence on fossil fuels, expanding the use and distribution of clean energy, and reducing greenhouse gases (carbon dioxide-based) to an appropriate or lower level by expanding carbon sinks ... and research and development of green technology”.5 In China, Zhou Shengxian, former Minister of Ministry of Ecology and Environment, pointed out that “Low-carbon economy is an economic model based on low energy consumption, low emissions and low pollution, and it is another great progress of human society after primitive civilization, agricultural civilization and industrial civilization. The essence of building this model is to improve energy efficiency and create a clean energy structure. The core is to implement technological and institutional innovation and change the views on development.”6 Zhuangguiyang and other scholars put forward four comprehensive evaluation indicators of low-carbon economy, namely “low-carbon output” (low energy consumption per-unit GDP), “low-carbon consumption” (low per-capita carbon demand and carbon emission level), “low-carbon resources” (high proportion of non-fossil energy in primary energy consumption, high forest coverage, low-carbon dioxide emission factor per-unit energy consumption), and “low-carbon policy” (energy conservation, emission reduction, and cleaner industrial structure should be included into the strategic planning of economic and social development).7 Generally speaking, low-carbon development in a broad sense includes at least the following four aspects: first, also the basic requirement of the concept, reducing greenhouse gas emissions, such as carbon dioxide, through various restrictive measures to ensure that the proportion and intensity of carbon emissions in the production and consumption process continue to decline to reduce pollution. Second, optimizing the energy structure by minimizing the use of limited and scarce tradi- tional fossil energy, and developing and utilizing new and renewable energy resources through scientific and technological innovation, institutional innovation, industrial transformation, and other means. This can reduce carbon emissions, on the other hand, can guarantee energy supply and achieve sustainable development. Third, saving energy resources. Implementing a conservation and low-carbon consumption mode through the transformation of social consumption patterns. In the mean- time, energy consumption per unit of output should be continuously reduced by 4 Hu Anbing & Wang Yiqian, Research on Low Carbon Agricultural Development in Sichuan under the Background of Low Carbon Economy, Sichuan Environment, no. 2, 2015. Department of Trade and Industry, Department for Environment, Food and Rural Affairs, Energy White Paper: Our Energy Future-Creating a low-carbon Economy, Norwich: The Stationery Office, 2003, p. 6. 5 Zheng Tongtong, trans., FrameworkActonlow-carbon,GreenGrowthofSouthKorea(Rev.2013), Journal of Nanjing Tech University (Social Science Edition), no. 3, 2013. 6 Zhang Kunmin, Pan Jiahua, and Cui Dapeng, eds., An Introduction to Low Carbon Economy, prefaced by Zhou Shengxian, China Environmental Science Press, 2008. 7 Zhuang Guiyang, Pan Jiahua and Zhu Shouxian, Connotation of Low Carbon Economy and Building of a Comprehensive Evaluation Index System, Economic Perspectives, no. 1, 2010. Introduction ix adopting energy-saving measures to ensure the efficient use of energy resources. Fourth, absorbing, neutralizing, or offsetting carbon emissions that daily activities may produce by expanding carbon sinks in forests, farmlands, grasslands, and oceans and by implementing carbon neutrality. Obviously, the realization of such an epoch-making economic development and social life mode will be a vast project. Many aspects need to be dealt with such as politics, economy, science and technology, culture, lifestyle, and so on. This requires the government to forcefully promote the mode and the joint efforts of all members of society. In this process, the government plays an irreplaceable leading and organi- zational role. It should be the leader in building a low-carbon society with its macro- strategy, public resource allocation, and overall regulatory capabilities. While any other social members or market entities cannot be competent in leading because of their individuality, unorganized and profit-seeking nature, and also because of the “Giddens’s Paradox”8 in reality. Therefore, the epochal mission of governments to actively respond to global climate change comes into being. Many scholars at home and abroad have put forward a consistent understanding from different disciplines. German sociologist Beck proposes from a sociological perspective that “climate change constitutes a major challenge to the environmental politics of the risk society in the 21st century”, “and dealing with risk must become one of the main tasks of public administration in this era.”9 British political scientist Giddens puts forward the idea of an “Ensuring State” in response to climate change. After a systematic political and economic analysis, American scholar Friedman, argues that “Only the government has the energy to lead all actions pulled together on climate change.”10 Some British economists believe that the externality of greenhouse gas emissions is an important cause of climate problems, pointing out that “greenhouse gas emissions are the biggest market failure in human history”11 and must be adjusted by the “visible hand” of government intervention. That is to say, only the government has the ability to call, regulate and enforce the low-carbon activities of the whole society through public policies. In the field of law, some American scholars have clearly expressed the same view: “The basic goal of modern government should include the continuous 8 The “Giddens’s Paradox” refers to such a dilemma: since the dangers posed by global warming aren’t tangible, immediate or visible in the course of day-to-day life—however, awesome they may appear—many will sit on their hands and do nothing concrete about them. Yet waiting until they become visible and acute before being stirred to serious action will, by definition, be too late. See Anthony Giddens, The politics of climate change, trans. Cao Rongxiang, Social Sciences Academic Press, China, 2009, p. 2. 9 Beck Ulrich. Weltrisikogesellschaft, Frankfurt a. M, 155. 10 See Thomas L. Friedman. Hot, Flat and Crowed—Why We Need a Green Revolution and How It Can Renew America. New York: Farrar, Straus and Giroux, 2008. 11 Nicholas Stern, The Global Deal: Climate Change and the Creation of a New Era of Progress and Prosperity, trans. Wu Xishen, Social Sciences Academic Press, 2011, 14. x Introduction reduction of social risks”12 ; while German administrative law scholars have further pointed out from the perspective of administrative law that in modern society, the responsibilities and missions of the state have begun to change, from the previous discipline administration and welfare administration gradually into risk administration.13 This is different from the task of “survival care” for citizens provided by the welfare state era.14 From a practical point of view, in order to deal with climate change, many countries and regions in the world have taken positive actions. At the government level, building a low-carbon society has been promoted as a national strategy in many countries and regions. Following the release of the UK’s energy white paper Our energy future— creating a low-carbon economy in 2003, Japan began the scientific research project “2050 Japan Low-Carbon Society” in 2004, and successively published a series of research reports, such as A Dozen of Actions Towards Low-Carbon Societies,15 Japan Scenarios and Actions Towards Low-Carbon Societies,16 etc. With these research plans and reports, Japan’s low-carbon society strategy has been effectively promoted and developed. The European Commission proposed Council adopts climate-energy legislative pack in 2008. The pack includes several institutional measures, such as the Revised EU Emissions Trading System, the EU Member States share the effort to make the carbon emission reductions, A regulatory framework for carbon capture and storage, and the new EU rules promoting the use of energy from the renewable sources.17 Air pollutants have been declared greenhouse gases by the US Supreme Court in 2007, and then in January 2010, the US Environmental Protection Agency decided to tackle climate change as the top of the agency’s seven priorities of regulatory programs.18 In 2010, South Korea promulgated the Framework Act on low-carbon, Green Growth of Korea, which began to bring low-carbon economic development and low-carbon social construction into the legal track. In order to achieve energy conservation, emission reduction, and low-carbon development, China has actively undertaken the “common but differentiated responsibilities” and set a series of energy-saving and emission reduction targets. In 2009, 12 Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment, trans. Shi Shuai, China University of Political Science and Law Press, 2005, 1. 13 (Germany) Hans J. Wolff et al., Administrative Law, trans. Gao Jiawei, preface, The Commercial Press, 2007, 3:3. 14 See (Germany) Eberhard Schmidt-Assmann et al., trans. Yu An et al., Higher Education Press, 2006, 53. 15 “2050 Japan Low-Carbon Society” scenario team, A Dozen of Actions towards Low-Carbon Societies (LCSs), May 2008, http://2050.nies.go.jp/20080522_press/20080522_report_main.pdf/, accessed October 18th, 2010. 16 “2050 Japan Low-Carbon Society” scenario team, Japan Scenarios and Actions towards Low- Carbon Societies (LCSs), June 2008, http://2050.nies.go.jp/material/2050_LCS_Scenarios_Act ions_English_080715.pdf/, accessed October 18th, 2010. 17 See Council of The Europea Union, Council adopts climate-energy legislative pack, Brussels, 6 April 2009, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/misc/107136. pdf/, accessed October 18th, 2010. 18 Lisa P. Jackson, Seven Priorities for EPA’s Future, http://blog.epa.gov/administrator/2010/01/ 12/seven-priorities-for-epas-future/ (visited on 09/18/2010). Introduction xi the Chinese government solemnly announced the objective of “reducing greenhouse gas emissions per-unit GDP by 40–45 percent19 by 2020 as compared with that in 2005”, and “to achieve this goal at the cost of reducing GDP growth rate”.20 Energy conservation has been established as a basic state policy in China’s Constitution, Environmental Protection Law and Energy Conservation Law and other laws and regulations. And building a Beautiful China has become one of the ruling objec- tives of CPC. In theR ecommendations for the 13th Five-Year Plan for Economic and Social Development, the CPC Central Committee explicitly called for an overall improvement in the quality of the ecological environment and put forward that “Our modes of production and ways of life should become more eco-friendly and low- carbon. We will extract and use energy and resources with much greater efficiency. Aggregate energy and water consumption, the total amount of land used for construction and aggregate carbon emissions will be effectively controlled” and so on.21 In the Guidelines of the CPC Central Committee and the State Council on Accelerating Ecological Civilization, the government has made special decisions and arrangements on “Promoting Energy Conservation and Emission Reduction” and “Actively Dealing with Climate Change”. Chinese President Xi Jinping recently stressed that China should “vigorously promote green development, circular development and low-carbon development”, and put forward a clear demand for the “energy consumption revolution”: “We should restrain unreasonable energy consumption, resolutely control the total amount of energy consumption, effectively implement the priority policy of energy conservation, and run energy conservation throughout the whole process and all fields of economic and social development. We should firmly promote the industrial restructuring, attach great importance to energy saving in urbaniza- tion, establish a thrifty consumption concept, and accelerate the formation of an energy-saving society.”22 In order to achieve the goal of energy-saving and emission reduction, the government has also promulgated a large number of specific policies and regulations, such as Action Plan for Low-carbon Development of Energy Conservation and Emission Reduction 2014–2015, making specific arrangements from the aspects of promoting industrial restructuring, building energy-saving and emission reduction projects, paying close attention to energy-saving in key areas, strengthening technical and policy support, etc. 19 Wen Jing and Wang Yun, ChinaandtheUnitedStatesArrangeCarbonEmissionReductionbefore the United Nations Climate Change Conference, The Economic Information Daily, November 27th, 2009, A02. 20 Xinhua News Agency, Wen Jiabao: We Do Not Scruple to Lower GDP Growth Rate for Fulfilling the Energy Conservation and Emission Reduction Target, West China City Daily, September 15th, 2010, 33. Among the main targets set for the five-yea economic and social development in the 12th Five-year Plan Outline, annual growth rate of GDP is 7%, which is lower than 7.5%, annual average growth rate of GDP set in the 11th Five-year Plan Outline. 21 TheRecommendationsoftheCentralCommitteeoftheCommunistPartyofChinaforFormulating the13rdFive-YearPlanforEconomicandSocialDevelopment, Sina, accessed December 5th, 2015, http://finance.sina.com.cn/china/20151103/160123664965.shtml. 22 XiJinping:ChinaActivelyPromoteEnergyProductionandConsumptionRevolution,XinhuaNet, accessed March 2nd, 2015, http://news.xinhuanet.com/politics/2014-06/13/c_1111139161.htm.