雾霾应急的中国实践与环境法理

我国已经基本形成雾霾应急的规范体系与制度体系,但实践中仍然存在对健康权保护不足和对财产权、自由权侵害过度的问题。由于雾霾形成机理与传统权利侵害在结构上存在差异,基于传统公法学体系的行政紧急权力理论无法对政府重污染天气应急行为进行有效监督和制约。以国家环保义务理论为基础,可以从效果裁量的两个方面入手,对雾霾应急进行更具针对性的分析。针对目前部分城市的空气重污染应急预案不符合国家环保义务的内在要求的情况,可以根据2014年修订的行政诉讼法,对应急预案中的应急响应条件和应急响应措施进行不同程度的司法审查,通过司法途径监督、纠正当前各地重污染天气应急预案中的不当规定。

Today, heavy air pollution has become an issue of great public concern in China. Although China has already established standardized normative and institutional systems of haze emergency re- sponse, two big problems remain to be solved ： one is the inadequate protection of the right to health, and the other is excessive infringements upon citizens＇ property rights and freedoms. Because of the structural difference between the mechanisms of haze formation and traditional right infringements, the administrative emergency power, which derives from the traditional public law system, is ineffective in supervising and restricting the government behavior in emergency response to heavy air pollution. Based on the theory of state environmental protection obligation, more targeted analysis of haze emer- gency response can be carried out from the two perspectives of effect and discretion. In view of the fact that currently the heavy air pollution emergency plans of some cities are not in line with the re- quirements of state environmental obligations, it is necessary to carry out judicial review on the condi- tions and measures in such emergency plans in accordance with the Administrative Procedure Law re- vised in 2014, so as to monitor and correct through judicial channels the improper provisions in these emergency response plans.