Transcript Research of Legal Interactive Mechanism on Climate Change in China

Haifeng Deng
Center for Environmental, Nature Resource & Energy Law,
Tsinghua University, China
Why we should pay more attention on Climate
Change in China
Why we should research on Legal Interactive
Mechanism Responding to Climate Change in China
Analysis of the Interactive Experiences on Climate
Change Control in the United States
Future Interactive Mechanism on Climate Change
Control in China

China is encountering increasingly stern challenges on
climate change in environment, social stability and
national economic development.

First, China is one of the largest green house gas emission
countries in the world, thus reducing greenhouse gas
emission is a task of primary importance. But economic
development is equally fundamental in China.
Second, China has suffered a lot of disasters due to
climate change. If we fail to control climate change, it will
not only have serious consequences for the environment,
but also severely affect the life of Chinese people.

In March 2007, the
coastland of Shandong
province suffered from
snow disaster, cold wave,
storm surge and other
extreme climate events
because of sea level rise.
The coast erode going into
worse and part of coasts
collapsing and falling back
in Hainan province due to
the global warming and sea
level rise. The local people
had to migrant three times
to seek refuge.
Many areas in China
had suffered from
disastrous floods this
summer. This pictures
were taken in Jilin
Province in July 2010.
Five provinces in southwest
of China had a serious
drought in Spring, 2010.
The soil was cracking up and
the crops died because of
the drought. This pictures
were taken in Luliang,
Yunnan province in April
2010.

The research of legal interactive mechanism on climate
change has great importance in China because
governments at all levels cannot cooperate in harmony due
to the different goals of their policies.

In details, the central government has very positive attitude
towards the issue of controlling climate change, because it
focuses on the formulation of policies and the organization of
implementing the plans and policy measures. Therefore, it is
necessary for the central government to comply with world
development trend.
However, the majority of local governments are still passive to
climate change problem when local economic development is
taken into consideration.
How to balance the attitudes and actions between the two level
governments is the big point during the policy making and
enforcement on the climate change control issues.



There are two cases about interactive mechanism on
climate change control between federal government and
state governments in the United Stated, which can be
used for reference in China:

Case Ⅰ: California adopted the Global Warming
Solutions Act

In 2006, California took the lead of adopting the Global
Warming Solutions Act as the first legislation on climate change,
while the federal government still disputes on the issue of
choosing the system on climate change.

Case Ⅰ: California adopted the Global Warming
Solutions Act

Reference Value:

Firstly, the design of the systems on responding to climate
change is legislated so as to provide the experiences for
the federal legislation and other state’s legislation.
Secondly, it shows the flexibility of local legislation. The
state government took the lead of adopting the legislation
in this state, under the circumstances that the federal
legislative authority fails to issue the legislation in time.


Case Ⅱ: Massachusetts vs. EPA

On November 29, 2006, Massachusetts and other eleven
states brought a lawsuit to the court against EPA under
section 202(a)(1) in the Clean Air Act, claiming that EPA's
failure to regulate four kinds of green house gas such as
CO2 causes global climate change and many other
unfavorable effects.
The Supreme Court of the United States made the
judgment on April 2, 2007. The Court determined that
“should EPA decline to regulate green house gas emissions
from new motor vehicles, it shall be deemed that green
house gases would not cause or contribute to climate
change, or it is required to give a reasoned explanation
for its refusal to adopt action”.


Case Ⅱ: Massachusetts vs. EPA

Reference Value:

Massachusetts vs. EPA is a typical case showing the
interaction between federal and state on the issue of
responding to climate change.
Because in this case, the dispute between nationwide
enforcement law agency and local government was settled
down by the nationwide supreme judicial authority by the
judicial means. This way may be used for reference to solve
the disputes between nationwide government and local
governments. The independence, impartial judgment and
justness are the key basis that this way plays its role.


Firstly, local legislation comes first and motivates
other local governments, promoting nationwide
legislation.

Our country is very large in territory, there being great
differences among all provinces, cities and autonomous
regions, which makes a nationwide legislation unable to deal
with all issues, and to consider all circumstances of all places.
And, once the first legislation in province succeeds, its
experience will be of reference value to the whole nation and
promoted to other provinces; once there are problems,
experiences may be summed and analysis may be made to the
existing problems.
Thus, each province may, based on the local circumstances,
promulgate local legislation and regulations to respond to the
climate change issues.


Secondly, law enforcing authority shall execute laws
actively and shall not be evasive.

The law enforcing authority that is in charge of the
despondence to climate change shall apply active
enforcement as a basic principle in enforcing. Related
authorities shall take active measures rather than being
passive to deal with the possible blank area in enforcement.
The liability to explain shall be undertaken and open to the
public for any refusal of active enforcement. At the same time,
the litigation system for public interest shall be further
perfected to enable the citizens and local governments to
bring about demurral, even institute administrative litigation.


Thirdly, it is judicial settlement.

The climate change problems are under pressure, the
central and local governments shall establish a sound
interactivity so as to respond effectively to the climate
change.
Maybe we can consider an interactive mechanism that
adopts judicial measures, together with administrative
organizations to take the advantages of judicial solutions
and the efficiency of administrative organizations into
account in order to better face the challenge to China and
the whole world in responding to the climate change.

Thank You For Your Attention!

Haifeng Deng

Associate Professor & PH.D

Address: School of Law, Tsinghua University, Beijing 100084,
China

E-mail: [email protected]

http://erelaw.tsinghua.edu.cn