论环境规制中的结构性失衡——对中国环境规制失灵的一种理论解释

Finding Structural Imbalance: A Theoretical Explanation to the Failure of China's Environmental Regulations

中国环境规制失灵的根本原因在于环境规制中存在着三种结构性失衡:公众与企业在参与环境决策和诉讼中的失衡;环境保护主管部门与地方政府、经济主管部门在规制权力上的失衡;环境利益与经济利益在互相竞争中的失衡。欲解决此种现象,必须从三个方面对中国环境法进行结构性的变革:建立环境公共利益的公众代表机制;加强责任行政制度,强化各级人民政府的环境责任;建立以环境价值评估为基础的生态赔偿与补偿制度。

What explains the failure of China's environmental regulation is the structural imbalance of three types: the imbalance in environmental decision-making and litigation between such parties as the public and the businesses,the imbalance in law enforcement between such parties as authorities in charge of environmental protection,local governments and the authorities in charge of economic production;and the imbalance in the game between such interests as of environment and of economy.A solution to the imbalance of these types may be found in the structural reform of China's environmental act in the following respects: to establish an institution in which representatives on behalf of the public may monitor the environment for the public good,to strengthen the accountability in the administrative system,especially in the governments of all levels,and to bring into reality a practice in which assessed compensation and reparation will be made to make up any damage caused by environmental pollution.