论我国环境法治实现之路径选择——以正当行政程序为重心

On Path Choice in the Achievement of Rule of Law in Environmental Protection——Focus on Administrative Due Process

生态文明建设离不开环境法治发展。环境问题上"政府失灵"所导致政府环境行政决策权滥用和环境公众参与权利保障缺失是造成环境法治困境的症结所在。利用"权利制约权力"路径,通过确立公民环境权解决"政府失灵"行不通;利用"权力制约权力"路径亦有困难,发展"程序上环境权"理论来解决,在理论上仍受质疑。环境程序法治是衡量一个国家环境法治程度的重要标志。环境程序法治实质上是正当程序之治。"正当行政程序"是实现环境法治的较好路径。正当行政程序在环境法治中具有权力控制和权利保障的功能。因此,在环境法治建设中应当认真对待正当行政程序。

The construction of ecological civilization can not be separated the development of rule of law in environmental protec- tion. Government failure in environmental protection is the crux of dilemma of achieving rule of law in environmental protection. According to the path of checking power with right, structuring environmental rights can not solve the problem of the government failure. And choosing the path of restraining power from power is difficult path. Developing procedural environmental right also has many difficulties in theory and in reality. Administrative due process is a better way of preventing government from abusing power. It not only can check administrative power in reality, but also can theoretically substitute for procedural environmental right. So if rule of law in environmental protection is to be achieved, administrative due process must be taken seriously.