气候变化诉讼的中国范式——兼谈与生态环境损害赔偿制度的关系

The Chinese Paradigm of Climate Change Litigation——Also on the Relationship between it and the System on Compensation for Eco-environmental Damage

气候变化诉讼在学理上有广义和狭义之分。广义的气候变化诉讼是与气候变化应对关联的诉讼;狭义的气候变化诉讼是直接提出应对气候变化诉求的诉讼。我国司法实践中,业已出现大气污染环境公益诉讼、碳排放权交易和碳汇交易诉讼、能源替代诉讼等气候变化应对的关联诉讼,也出现了“真正”的气候变化诉讼。前者数量多、涉及案由众多;后者数量少且审理艰难,本质原因在于现有的环境诉讼模式无法为此类新型案件提供坚实支撑。我国生态环境损害赔偿制度由自然资源的国家所有权理论派生、强调国家的环境保护义务,专门救济环境公益、应对环境风险,是现有环境司法框架内与“真正”的气候变化诉讼最为匹配的方式。构建气候变化诉讼的中国范式,一方面应完善生态环境损害赔偿制度,扩展其适用范围、界定与行政执法的关系、优化预防性责任的承担方式,另一方面应完善专门的气候变化诉讼案由规定、研究相应的诉讼规则。

Academically,the definition of climate change litigation can be explained in broad and narrow senses.Broadly speaking,it is the litigation related to the response to climate change.In a narrow sense,it is the litigation directly claiming responses to climate change.In the judicial practice of China,there have emerged litigation related to responses to climate change such as public interest litigation on air pollution,litigation on carbon emissions trading and carbon sink trading,energy substitution litigation,the"real"climate change litigation.The former three enjoys high quantity and involves a sea of causes of action,while the latter are few in number and difficult to adjudicate.The essential reason lies in the existing environmental litigation model that fails to provide solid support for such new kind of cases.The system of China on compensation for eco-environmental damage is derived from the theory of state ownership of natural resources and emphasizes the government’s obligation to protect the environment,specializes in remedying environmental public interests and responding to environmental risks,thus being the way most compatible to"real"climate change litigation within the existing environmental judicial framework.To build a Chinese paradigm of climate change litigation,on one hand,the system on compensation for eco-environmental damage should be improved by expanding its scope of application,redefining its relationship with administrative law enforcement and optimizing the way to assume liability for prevention,and on the other hand,the special regulation on causes of action for climate change litigation should be improved and the corresponding litigation rules should be studied.