Interpretation of Act on Climate Change (the draft proposal of Chinese Academy of Social Sciences)

Leading Research Expert        Professor Dr. Chang Jiwen

 

1 The Background of The draft proposal

(ⅰ)Legislation Necessity

As the largest developing country, China also has the biggest greenhouse gases emissions. Therefore, the entire world pays close attention to Chinese policy of controlling greenhouse gas emissions as well as America. Considering continuous global warming, Chinese policies of controlling greenhouse gas emissions shall be consistent and ruled by law. So it is necessary to enhance establishment of laws and systems for standardizing settlement during the period of rule of law.

Climate change brings both challenges and development opportunities to China. If having successful experiences of other countries on climate change legislation, China will successfully deal with challenges, seize various opportunities and promote sustainable economic and social development. China National Plan for Coping with Climate Change was released by the State Council on June 2007. The 12th National Five Year Plan drew an outline for climate change. Relevant departments under State Council and provincial governments had made plans to address the climate change. But till now none of them has become law. And these arrangements are unsystematic, nonprocedural and lack of stable standardization. Thus we shall need further efforts and put the arrangements above into scope of laws. Legislative actions on climate change will take essential effect for China to improve international reputation, promote low carbon economy development and reduce energy consumption. Resolution of Positively Addressing Climate Change was released by Standing Committee of the National People's Congress In 2008, which was temporary in accordance with legislative traditions of China. When time comes, there will be formal legislative actions following later.

The Law of the People's Republic of China on the Prevention and Control of Atmospheric Pollution is being amended now. Greenhouse gases like nitrous oxide, per fluorocarbon, carbon black and some others belong to atmospheric pollutants, to prevent and control which will refer to measures of addressing climate change more or less, according to requirement that shall not only reflect relevance between climate change and atmospheric pollution controlling, but also blend with environmental legislation. But it doesn't conclude more contents on addressing climate change, although its targets are primary for prevention and control of atmospheric pollution. Equally, the drafting Energy Law, the Energy Conservation Law and Energy Renewable Law implementing, are closely related to addressing climate change. However, with the limitations of legislation, their provisions of addressing climate change, are only in the sides of energy consumption, low carbon economy development and others except fundamental principles，polices and adaption of climate change. Therefore, China agrees to adopted the Act on Climate Change，which is applied to give a clear instruction of basic guidelines, fundamental principles, basic policies about addressing climate change, establish and improve management regimes, legal systems, guarantee mechanisms and legal liabilities, coordinate the Law of the People's Republic of China on the Prevention and Control of Atmospheric Pollution, Energy Law, Energy Conservation Law and Energy Renewable Law and other rules. Then a well-functioning legal regime of addressing climate change is established.

(ⅱ)Research Drafting Process

The Institute of Law of Chinese Academy of Social Sciences serves as a think tank for National People's Congress and the State Council in matters of the rule of law. For example, the Institute of Law makes suggestions for drafting and revision of all laws, participates in the construction of rule of law and legal system and national policy. What's more, if important, the Institute of Law will submit research fruits to legislative agencies as legislation or policy suggestions. In recent years, the Institute of Law reports legislation research fruits of addressing climate change, on which legislative agencies, relevant departments and academic world then attach importance.

For further promoting legislation and research of addressing climate change, the Institute of Law of Chinese Academy of Social Sciences, Ministry of Environmental Protection and Embassy of Switzerland in China made an agreement on cooperation on June 2010. And the agreement put on record by Ministry of Commerce, became a cooperation project between Chinese government and Swiss Federal Government. After that, the Institute of Law of Chinese Academy of Social Sciences and Embassy of Switzerland in China negotiated and established research drafting team and consultative team composed of experts at home and abroad. Then, a seminar was hold to kick off the project on November 6th, 2010 in Beijing. There are 48 experts and scholars attending the seminar. They mainly came from the National People's Congress, Legislative Affairs Office of the State Council, Ministry of Environmental Protection, Ministry of Science and Technology，Ministry of Foreign Affairs and other ministries at home and abroad. Meanwhile, experts and scholars discussed the necessity of fully researching drafting. It was widely recognized that, compared to the name of Low Carbon Economy Promotion Law, legislation name of Act on Climate Change would pay more attention on a low carbon society and brought carbon black and other climate warming atmospheric pollutants into legislation, which was more comprehensive, systematical and reasonable. Members, including leaders, experts and scholars, proposed their suggestions of legislation objects, legislation frameworks, fundamental principles, primary systems, legal liabilities, means of research, drafting requirements and other basic questions. The news about this seminar was reported widely in various media at home and abroad.

After initiating meeting, research drafting team and National Development and Reform Commission negotiated to get their separate researches of addressing climate change together, share resources and information. This is an innovation for Chinese legislation and democratic legislation research. Since project initiated, research drafting team and National Development and Reform Commission, Ministry of Environmental Protection negotiated to organize experts and scholars to research in Shandong Province, Hebe Province, Qinghai Province, Henan Province, Beijing and National Development and Reform Commission, Ministry of Environmental Protection and other ministries. These experts and scholars came from National Development and Reform Commission, Ministry of Environmental Protection, Chinese Academy of Social Sciences, Beijing Normal University, Chinese University of Political Sciences and Law, Shandong University of Science and Technology, Shandong University and other organizations. To ensure representativeness and integrity, targets of local investigation and research are the southeast coast and the northwest interior, the industrial developed areas and the industrial backward areas, the areas suffering climate change and other areas significant to climate protection. During local research, leaders and experts from local Ministry of Agriculture，Ministry of Forestry，Department of Marine Management, Ministry of Environmental Protection, Development and Reform Commission, Taxation Bureau, Finance Bureau, Ministry of Science and Technology and other sectors, took part in meetings of investigation and research, put forward many practical legislation plans and local anticipation. When surveying among sectors, relevant departments proposed a lot of constructive suggestions for the actual problems of climate change and further scientific management.

The legislation of climate change considers China's situation and appeals for international cooperation and learning lessons from other countries' experience. With the full support of the Swiss Federal Government, Ministry of Environmental Protection, Ministry of Foreign Affairs ,Embassy of Switzerland in China and other institutions, ten leaders and experts from Environment Protection and Resources Conservation Committee，National Development and Reform Commission，Ministry of Environmental Protection，Chinese Academy of Social Sciences，Renmin University，Chinese University of Political Sciences and Law went to Switzerland for research on August 2011. And the journey lasted 9 days. During the inspection, Chinese members and Swiss members exchange their opinions on legal issues of climate change, on which International community, China, European Union and Switzerland focused. Research team also researched the latest development and future of climate change legislation of European Union and Switzerland, got knowledge of the roles and measures of Swiss parliament，Swiss local government，Swiss enterprises, Research institutions, Teaching Institutions, Private Agencies for addressing climate change. After returning from abroad, research team analyzed and summarized carefully, writing reports of investigation and research.

The research was comprehensive and deeply at home and abroad. On this basis, project team translated foreign typical legislation and influential academic research fruits of climate change, gathered domestic and external inspection reports together, and printed them out as references for National Development and Reform Commission, Ministry of Environmental Protection as well as the project team. China environmental news reported the core of investigation reports in a full page on 16 November2011.

Research drafting team and consultative team held a seminar in Renmin University on 12 November 2011.Its purpose was the framework of legislation and primary articles. At the seminar, Chinese experts and Swiss experts talk preliminarily with each other. After that, the outline and primary contents of legislation were published on china.com.cn which asked for advices in public. Chinese predominant media and China environmental news reported it. In 2011, four independent drafts written by drafting team were completed on 25 December. Project team had a seminar on 26 December in Beijing Normal University. Its targets were group discussions and original drafts. Then, Project team hold a seminar to discuss about original draft on 3 March 2012. Parts of experts in drafting team and consultative team went to Tianjin Climate Exchange（TCX）, hearing relevant enterprises and experts' opinions of first integrated draft under guidance of National Development and Reform Commission, Ministry of Environmental Protection. Entrepreneurs and experts expressed their own views, made many constructive suggestions for draft at the seminar. Domestic and external media reported this seminar. With those suggestions, research drafting team revised the first draft again. Finally, one proposal draft finished, asking for advices in public at home and abroad.