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Legal framework required for ecological protection

Shi Yucheng | 2014-04-02 | Hits:
Chinese Social Sciences Today

The Comprehensive Water Pollution Control Program initiated by the Yunnan Environmental Protection Bureau in 2012 greatly improved the ecological system of Dian Lake in Yunnan Province. 


Law regulates the interactions between people, and each party’s interests in carrying out these interactions. Of course, this is not to say that all interests in potential social interactions are subject to legal regulation. Before modern environmental problems arose, ecological interests had no position in the framework of what the law traditionally regulated and protected. However, with the emergence of the present-day environmental crisis, the ecological impact of any action or interaction on other parties’ stakes in an ecosystem, or the benefits conferred to other parties by salubrious action upon an ecosystem, have gradually developed into a new, completely independent form of interests. Ecological interests can be defined as the intangible benefits that the ecosystem has on humanity’s production, life and environmental conditions. In ecological economics, the ultimate embodiment of the “ecosystem services and functions” is to satisfy humans’ demand for a better environment.


The root of the contemporary ecological crisis and the problems that continue to aggravate it are conflicts of interest between the demand for resources, other ecological demands, and other economic demands. At a systemic level, strengthening the legal regulation of ecological interests, coordinating the balance in the extent to which different parties’ interests are represented, and preventing conflicts and excessive demands constitute a fundamental way to resolve environment problems so as to achieve harmony between mankind and nature, and are also inevitable steps to becoming a modern society ruled by law.


Conflicts on ecological interests

The severe environmental crisis resulting from the industrial revolution inspired a general realization that environmental resources are, in fact, of great value.


In his seminal paper “Conservation Reconsidered”, published in The American Economic Review in 1967, John V. Krutilla argues against the conclusion that the value of natural resources is declining as natural resource prices have declined (a conclusion drawn by another paper in the early 1960s), and instead proposes that conventional economics overlooks many factors in the valuation of irreplaceable natural resources. Drawing a comparison between exhaustible mineral resources like petroleum, coal and mineral ores and noncommercial resources like rare species, natural wonders and important ecosystems (in a later work he terms these “commodity resources” versus “amenity resources”), he notes that the latter can also have utility and value. Thus, he concludes it is very important to protect such resources and ensure they are not exploited faster than they can be replenished.


Ecological interests have already evolved to the point that there are certain common demands as well as widespread conflicts between parties. A legal framework to clarify and ensure different stakeholders' ecological interests is urgently needed. With socioeconomic development, satisfying public demand for resources and the public’s desire for a sound environment have become increasingly incongruous goals. Demand for public goods derived from the environment has gradually exceeded a level that can be met by ecosystem services and functions, leading to the current state of universal appeals and widespread conflicts of interest. The series of environmental disasters in recent years reflect the intense conflict between ecological interests versus demand for resources and other economic interests. Environmental protection is a new branch of law that attempts to regulate and ensure ecological interests comprehensively.


Current regulatory deficiencies

Environmental protection laws typically fall into two categories: laws aimed at preventing and regulating environmental pollution, and laws targeted at protecting natural resources. For a long time, due to a general lack of ecological awareness, environmental protection legislation in China has lagged behind. Existing laws are confined to preservation of biological diversity and regional environments, such as laws protecting natural reserves, scenic spots, national forests and parks and cultural relics. Moreover, China still lacks an overall framework for implementing ecological legislation, as well as some essential systems to ensure ecological interests. For instance, systems guaranteeing the effective supply of ecological interests, fair compensation for parties that meet ecological incentives or whose ecological interests are infringed upon, and prevention and relief of ecological damage have not been completely established.


In practice, although certain agencies, individuals and organizations are working to improve ecosystem services and functions in a particular area through eco-industries, for instance through afforestation of barren mountains and deserts, these efforts often go uncompensated or are compensated inadequately. On the fringes of Maowusu Desert in Northwestern China, for example, there are now large stretches of forest that provide considerable benefits to the surrounding ecosystem by mitigating severe winds that sweep across the desert and carry sand into adjacent regions. The success of these “green screens” is largely due to 20 years’ dedicated efforts by three farmers—Shi Guangyin from Dingbian County, Shaanxi Province, Niu Yuqing from Jingbian County, Shaanxi Province and Bai Chunlan from Yanchi County, Ningxia Province. Unfortunately, because of a strictly enforced national logging ban but inadequate compensation mechanisms for meeting ecological incentives, these three farmers are now heavily in debt in spite of their tremendous contributions.


Legal systems required for ecological protection

Protecting and regulating ecological interests require a series of systems.


Firstly, we should set up a system to ensure the effective provision of ecological interests. Through afforestation, shelterbelts and other activities to improve the environment, humans can fortify their ecological interests. Maintaining the supply of ecological interests tends to have significant positive externalities, but without an incentive mechanism it is hard to ensure that the supply does not get depleted. Safeguarding incentives for suppliers of ecological interests and implementing sustained growth of ecological incentives need to be done in environmental legal framework. Providing tax breaks, credit, technical support, and financial investment are preliminary means to foster the development of eco–industries, promote the recycling economy and increase ecological interests.


Secondly, we need a reasonable compensation system that works in two directions: if Party A infringes upon Party B’s ecological interests, Party A would be required to reimburse Party B; and if Party A benefits from an increase in ecological interests due to the actions of Party B, Party A must reward Party B. This will achieve coordination and balance of ecological interests. China’s currently environmental compensation system is largely dependent on policy and economic coordination, an arrangement that is ultimately unstable as each case is open to individual discretion and thus prone to variation. Defining a comprehensive compensation system at the legal level will precisely clarify the various interest parties, including the claimants and those paying the claimants. This will create conformity between the responsibilities, rights and interests of concerned parties.


Third, we should consider establishing a prevention and relief system to repair damage to local ecosystems or changes to the composition, structure and function of ecosystems caused by severe pollution or exploitation of natural resources. Protecting the ecological interests of the public requires a legally binding ecological damage prevention system to control actions potentially impactful to ecosystems both at the “source” and throughout the “process”. 


Shi Yucheng is from Gansu Institute of Political Science and Law. 


The Chinese version appeared in Chinese Social Sciences Today, No. 564, February 26, 2014   

                                                                 Translated by Bai Le
                                                                                                                                             Revised by Charles Horne