Several Basic Problems of the Effective Implementation of the Compensation System for Ecological Environment Damage from the Perspective of Administrative Law
The core of the compensation system for ecological environment damage is to explore the provincial and municipal governments as the right holders to start the consultation process for compensation,and to file the litiga-tion by the right holders if the consultation with the perpetrator fails. The purpose of this system is to address the problem in practice where ecological environment damages are not effectively remedied. As an ecological environ-ment protection system with its own characteristics in the China's ecological civilization construction,its effective implementation requires not only further improvement of the system itself but also the coordination with related sys-tems. First,it is necessary to clearly define the nature of the consultation agreement. From both the theoretical in-terpretation of administrative agreements and the recent developments in administrative litigation,particularly the judicial interpretation of administrative agreements,the consultation agreements within the compensation system for ecological environment damage fully meet the basic characteristics and essential components of administrative agree-ments. Therefore,it is more appropriate to classify the consultation agreement within the compensation system for ecological environment damage as an administrative agreement. Second,the relationship between the compensation system for ecological environment damage and environmental administrative supervision needs to be clarified. Since the pilot implementation of the compensation system for ecological environment damage,local governments have generally adopted a cautious approach in deciding whether to apply administrative supervision or the ecological envi-ronment damage compensation procedure when facing ecological environment damage. However,this does not elimi-nate the de facto overlap of responsibilities between the two systems. Specifically,when ecological damage occurs,if the relevant legislation has clearly defined the obligations of the parties responsible for the damage and granted the competent administrative authority the power to enforce those obligations,the administrative authority should exercise its administrative supervision powers to safeguard ecological interests,rather than rely on the consultation system to achieve environmental restoration. Only when administrative supervision measures have been exhausted and still failed to effectively address the ecological environment damage should the governments seek compensation under the compensation system for ecological environment damage. Otherwise,the administrative authority may be deemed to have failed in its legal duties,resulting in administrative inaction. Third,the relationship between the compensation system for ecological environment damage and public interest litigation needs to be coordinated. Once ecological environment damage occurs,the administrative authority should first exercise its environmental adminis-trative supervision rights. If the administrative authority initiates the compensation procedure before exhausting its environmental supervision powers,or if it fails to initiate the compensation procedure after administrative supervision has proven insufficient,or if there is a dispute between these two powers,the procuratorial authority should exercise its public interest litigation rights. This ensures that the administrative authority cannot selectively apply administrative supervision or compensation rights,and prevents it from avoiding legal responsibility due to disputes over these powers. To address these issues,relevant legal provisions should be continuously improved to a-chieve the organic unity of the legal system for ecological environment damage remediation.
compensation system for ecological environment damageconsultation agreementadministrative supervisionadministrative public interest litigation
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