Abstract：Developing a modern environmental governance system is an inherent requirement for China to achieve its ecological civilization, especially given China’s severe environmental challenges. Both the CPC and the State Council have emphasized that this environmental governance system should be Party-led, government-driven, enterprise-focused, and inclusive of public participation. Current studies mainly focus on the rationale and methods for building a modern environmental governance system, with insufficient attention paid to the legal challenges and normative dilemmas it faces. The participation of private entities such as market and social forces in environmental governance is the most significant difference between the modern environmental governance system and the traditional government-led environmental regulation system.
Through normative analysis of relevant laws and comparative analysis of government-led environmental regulation and private environmental governance, this article concludes that China’s current environmental legal system, which is based on the deterrent and antagonistic relationship between the regulator and the regulated, and focuses on strengthening the government’s regulatory powers and corporate environmental obligations, is not yet fully equipped to provide sufficient normative basis and effective institutional support for private environmental governance which is based on the interaction and cooperation among multiple actors, and implemented through mechanisms such as autonomy, negotiation and regulation authorization. More specifically, private environmental governance encounters three normative dilemmas: lack of governance rules, difficulties in making private entities accountable for their governance behaviors, and unclear boundaries between government intervention and private environmental governance. Aiming at addressing the above normative dilemmas, China’s environmental legal system firstly needs to provide rules for private environmental governance, and clarify government’s responsibilities of setting up framework, providing incentives, coordination and guarantee for private environmental governance. The codification of environmental code in China provides a good opportunity to legalize the pluralistic environmental governance. Meanwhile, the essence of private environmental governance is to achieve administrative purposes through private approaches which involves the balance between private interests and public interests, as well as the trade-off between economic efficiency and public responsibility. Therefore, it is necessary to clarify the fields of private environmental governance and establish accountability mechanisms of private entities to ensure that private environmental governance can achieve the purpose of public administration.
Among them, a noteworthy contribution of this article is the five criterions to determine whether governance should be conducted by private entities or through government administrative intervention: (1) the degree of environmental risk and whether it is highly diffused or affecting a large population. For example, severe and irreversible risks may require greater regulatory intensity; (2) the maturity of private entities. The more competitive the market is, and the more numbers of social organizations, the more self-regulation, cooperative governance or third-party governance can be deployed; (3) the degree of specialization and technicality of the environmental affairs and fields involved. If it involves highly specialized or emerging technologies, the government can encourage enterprises to use their own technological advantages for self-regulation or co-regulation; (4) the possible consequences of direct government regulation, such as whether it will lead to corruption, whether it will generate high regulatory costs, etc.; (5) the direct correlation between environmental regulation/governance and environmental public interests, the seriousness of environmental damage or the urgency of protecting environmental public interests.
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He Xiangbai. The Regulatory Dilemmas and Responses in Private Sector Environmental Governance in China. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.
