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, 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, 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 , China  