On Environmental Quality Standards and Finding of Liability for Environmental Pollution Torts
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摘要
Though bearing technical and legal attributes, environmental quality standards are neither rules nor regulatory documents. With the binding force coming from the legal norms where they are cited, environmental quality standards are designed and implemented as a yardstick for measuring environmental quality. They also play a role in the functions of goal setting, merit appraisals, inspiration, supervision and accountability in conjunction with the legal norms and administrative plans where they are cited. Characteristically, environmental quality standards adopt sort management in concept, take holistic values and methodologies, establish phased goals and accept the resulting policy choices. These standards are not applicable to determine tort liability caused by environmental pollution from the perspective of legal norms but provide limited evidence for finding the same in the view of factual analysis by delivering scientific support to prove negative effects on the environment. Hence, environmental quality standards do contribute to finding torts, thus making the production of evidence less difficult. Also, they can be used to prove the relevance between torts and damage.
Though bearing technical and legal attributes, environmental quality standards are neither rules nor regulatory documents. With the binding force coming from the legal norms where they are cited, environmental quality standards are designed and implemented as a yardstick for measuring environmental quality. They also play a role in the functions of goal setting, merit appraisals, inspiration, supervision and accountability in conjunction with the legal norms and administrative plans where they are cited. Characteristically, environmental quality standards adopt sort management in concept, take holistic values and methodologies, establish phased goals and accept the resulting policy choices. These standards are not applicable to determine tort liability caused by environmental pollution from the perspective of legal norms but provide limited evidence for finding the same in the view of factual analysis by delivering scientific support to prove negative effects on the environment. Hence, environmental quality standards do contribute to finding torts, thus making the production of evidence less difficult. Also, they can be used to prove the relevance between torts and damage.
Though bearing technical and legal attributes, environmental quality standards are neither rules nor regulatory documents. With the binding force coming from the legal norms where they are cited, environmental quality standards are designed and implemented as a yardstick for measuring environmental quality. They also play a role in the functions of goal setting, merit appraisals, inspiration, supervision and accountability in conjunction with the legal norms and administrative plans where they are cited. Characteristically, environmental quality standards adopt sort management in concept, take holistic values and methodologies, establish phased goals and accept the resulting policy choices. These standards are not applicable to determine tort liability caused by environmental pollution from the perspective of legal norms but provide limited evidence for finding the same in the view of factual analysis by delivering scientific support to prove negative effects on the environment. Hence, environmental quality standards do contribute to finding torts, thus making the production of evidence less difficult. Also, they can be used to prove the relevance between torts and damage.
引文
Cai Shouqiu.(1995).Relationship between environmental standards and environmental law.Environmental Protection,(4).
Cao Zhiping.(2003).On interpretative properties of scientific facts.Studies in Dialectics of Nature,(11).
Chen Wei.(2017).Research on the application of environmental quality standards in Tort Law.China Legal Science,(1).
Deng Haifeng.(2014).Self-improvement of holism under the rule of law for ecology.Tsinghua University Law Journal,(4).
Environmental Science Dictionary(Revision).(2008).Beijing:China Environmental Science Press(now China Environmental Publishing Group),p.311.
Hou Jiaru.(2014).Fundamental issues in China Environmental Tort Law.Beijing:Peking University Press,p.58.
Jin Rui Lin&Wang Jin(2003).Review of science of Environmental Law in the 20th Century.Beijing:Peking University Press,pp.80-85.
Jin Ruilin.(2000).Environmental and Resource Conservation Law.Beijing:Peking University Press,p.158.
Jin Ruilin.(2016).Environmental Law(4th Edition).Beijing:Peking University Press,p.80.
Ke Jian.(2014).Between facts,norms and values:An exploration on position of environmental law from discipline and practiceoriented perspective.Journal of Nanjing University(Social Science Edition),(1).
Lv Zhongmei,&Yang Shiming.(2017).Control environment and healthy risks-drawing lessons from the U.S.environmental standards.Chinese Journal of Environmental Management,(7).
Lv Zhongmei.(2016).Environmental law in an nutshell.Beijing:Law Press,p.203.
Meng Wei,Zhang Yuan,&Zheng Binghui.(2006).The quality criteria,standards of water environment and the water pollutant control strategy on watershed.Research of Environmental Sciences,(3).
Naohiko,H.(1999).Environmental Law.In Yu Min(Trans.).Beijing:Law Press,p.70.
Nevers,N.(2005).Air pollution control engineering.In(Humin,Xie Shaodong&Zhu Xianlei et al.Trans.).Chemical Industry Press,pp.9-16.
Shi Zhiyuan.(2016).Legal attributes of environmental standards and institutions.Journal of Chongqing University(Social Edition),(1).
Song Hualin.(2008).Legal attributes of technical standards.Administrative Law Review,(3).
Tan Qiping.(2017).The relationship between mandatory standards and tort liability.China Legal Science(4).
Wang Caifa.(1997).Science of Environmental Law.Beijing:China University of Political Science and Law Press,p.81.
Wang Guangyan.(2008).Discussions over China’s environmental quality standards and their applications.Jiangsu Environmental Science and Technology(3).
Wang Liming.(2011).Research on Tort Law(Vol.1).Beijing:China Renmin Univeristy Press,pp.291-292.
Wang Shengming.(2010).Understanding of the Tort Law of the People’s Republic of China.Beijing:China Legal Publishing House,pp.324-325.
Wang Zejian.(2009).Torts.Beijing:Peking University Press,pp.186-215.
Xie Jinchuan.(2005).Theoretical discussion over differentiated management.Theory Front,(23).
Ye Wenhu,&Zhang Yong.(2013).Environmental management(3rd edition).Beijing:Higher Education Press,p.116.
Zeng Shixiong.(2001).Principles of Law of Damages.Beijing:China University of Political Science and Law Press,p.55.
Zhang Guoning.,Jiang Mei,Wei Yuxia,&Wu Xuefang.(2011).Key technical problems in enacting environmental quality standards.Research on Environmental Sciences,(9).
Zhang Xinbao,&Zhuang Chao.(2014).Expansion and strengthening:Comprehensive application of environmental Tort Liability.Social Sciences in China,(3).
Zhu Rongying.(2012).Natural facts,objective facts and scientific facts.Journal of Zhengzhou Institute of Light Industry(Social Science),(6).
(1)See Environmental Information Terminology(HJ/T416-2007)(published by the State Environmental Protection Administration, now renamed Ministry of Ecology and Environment of the People’s Republic of China, on December 29, 2007, implemented on February 1, 2008), Beijing:China Environmental Science Press(2007), p. 19. The Environmental Protection Law(April, 2014)replaced “human health” with “the public health” under Article 1, supplemented by Article2(1)of the Standardization Law of the People’s Republic of China(November 4, 2017).
(2)Civil Judgment No.(2012)Tanzhongminyizhongzi 222 by Xiangtan Intermediate People’s Court of Hunan Province.
(3)Civil Judgment No.(2010)Zhehangminzhongzi 3015 by Hangzhou Intermediate People’s Court of Zhejiang Province.
(1)Environmental pollution liability under this paper is limited to physical injury and property damage that environmental pollution causes to civil subjects.Other completely different problems such as damage to the ecological environment and public rights and interests in the environment are excluded. Also,this paper introduces the Ambient Air Quality Standards(GB3095-2012)and the Environmental Quality Standards for Surface Water(GB3838-2002)as representative samples for analysis andgives consideration to both the Environmental Quality Standard for Noise(GB3096-2008)and others. This paper is so rolled out because the two samples are the best representatives after considering enforceability, enforcement authority, coverage of application and applications of currently-in-force 16 environmental quality standards issued by China’s environmental protection department. Plus, the majority of other legal literature focuses on the aforesaid three standards, such as reference No. 5, Chen W..
(2)Lu. Zh. M.&Yang Sh. M. Control Environment and Healthy Risks-Drawing Lessons from the U.S. Environmental Standards, Chinese Journal of Environmental Management, 2017, Vol. 7.
(1)Environmental Information Terminology(HJ/T416-2007).
(1)See NAAQS Table, at https://www.epa.gov/criteria-air-pollutants/naaqs-table(Last visited on April 13, 2017)
(2)See Environmental Protection Agency, National Ambient Air Quality Standards for Particulate Matter(Final Rule), 78Federal Register 3086(2013).
(1)Behind this is PM2.5 limits set by the U.S. Federal Ambient Air Quality Standards, which also sets standard I to protect public health(annual average 12μg/m3), stricter than standard II for public wellbeing including the environment(15μg/m3). See NAAQS Table, at https://www.epa.gov/criteria-air-pollutants/naaqs-table(Last visited on April 13, 2017)
(2)Notice on Implementing the Ambient Air Quality Standards(GB3095-2012), file No.:Huanfa[2012] 11, State of Environmental Protection Administration,website:http://www. zhb.gov.cn/gkml/hbb/bwj/201203/t20120302_224147.htm, last visit:Oct. 24, 2017.
(3)See Environmental Protection Agency, 2013 pp. 3268-3276.
(1)Id.,3097-3164.
(2)See Lead Industries Association v. EPA, 647 F. 2d 1130, 1154(D. C. Cir 1980); American Petroleum Institute v. Costle, 665 F. 2d 1176, 1186(D. C. Cir. 1981);American Farm Bureau Federation v. EPA, 559 F. 3d 512, 533(D. C. Cir. 2009); Association of Battery Recyclers v. EPA, 604 F. 3d 613, 617–18(D. C. Cir.2010).
(1)PM2.5, PM 10 and total suspended particulates under environmental quality standards are particulates that are different merely in aerodynamic diameter.Altogether they are named particulates under emission standards.
(1)For example, the German Civil Code provides for that landowners must give proper tolerance to smog, smell of burning, odor and vibration trespassed from other’s land, where “proper tolerance” is the requirement of severity of disadvantage. Shen B. X. Comparison of the Civil Liability of Water Pollution in China and Germany, Journal of CUPL, 2014, Vol. 2.
(2)International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law(Preventing Cross-border Damage caused by Dangerous Acts), the 10th Supplement to the 56th United Nations General Conference(A/56/10), Article 2 and its comments(paragraphs 4-7), p. 314.
(1)Decibel(d B)mentioned in this paper is measured in A-weighted sound levels(unit:d B(A)), i.e. the sound pressure level measured with A-weighted network.The State Environmental Protection Administration(SEPA)expressed repeatedly that no provisions are set under the Law of PRC on Prevention and Control of Pollution from Environmental Noise with respect to the noise generated by elevators, water pumps and transformers, all of which should be monitored and managed by the competent department of environmental protection administration. Also, the legislation does not set environmental protection standards for these noises. See the replies to the inquiry about the application of environmental protection standards to service facilities inside residential buildings made respectively by SEPA(No.[2007] 54), SEPA’s General Office(No.[2009] 1014)and SEPA(No.[2011] 88). Even with these replies, however, many trial courts have heard cases involving noises produced by service facilities inside residential buildings as environmental noise pollution.
(1)Civil Judgment No.(2013)Suminzhongzi 0014 by Higher People’s Court of Jiangsu Province.
Cao Zhiping.(2003).On interpretative properties of scientific facts.Studies in Dialectics of Nature,(11).
Chen Wei.(2017).Research on the application of environmental quality standards in Tort Law.China Legal Science,(1).
Deng Haifeng.(2014).Self-improvement of holism under the rule of law for ecology.Tsinghua University Law Journal,(4).
Environmental Science Dictionary(Revision).(2008).Beijing:China Environmental Science Press(now China Environmental Publishing Group),p.311.
Hou Jiaru.(2014).Fundamental issues in China Environmental Tort Law.Beijing:Peking University Press,p.58.
Jin Rui Lin&Wang Jin(2003).Review of science of Environmental Law in the 20th Century.Beijing:Peking University Press,pp.80-85.
Jin Ruilin.(2000).Environmental and Resource Conservation Law.Beijing:Peking University Press,p.158.
Jin Ruilin.(2016).Environmental Law(4th Edition).Beijing:Peking University Press,p.80.
Ke Jian.(2014).Between facts,norms and values:An exploration on position of environmental law from discipline and practiceoriented perspective.Journal of Nanjing University(Social Science Edition),(1).
Lv Zhongmei,&Yang Shiming.(2017).Control environment and healthy risks-drawing lessons from the U.S.environmental standards.Chinese Journal of Environmental Management,(7).
Lv Zhongmei.(2016).Environmental law in an nutshell.Beijing:Law Press,p.203.
Meng Wei,Zhang Yuan,&Zheng Binghui.(2006).The quality criteria,standards of water environment and the water pollutant control strategy on watershed.Research of Environmental Sciences,(3).
Naohiko,H.(1999).Environmental Law.In Yu Min(Trans.).Beijing:Law Press,p.70.
Nevers,N.(2005).Air pollution control engineering.In(Humin,Xie Shaodong&Zhu Xianlei et al.Trans.).Chemical Industry Press,pp.9-16.
Shi Zhiyuan.(2016).Legal attributes of environmental standards and institutions.Journal of Chongqing University(Social Edition),(1).
Song Hualin.(2008).Legal attributes of technical standards.Administrative Law Review,(3).
Tan Qiping.(2017).The relationship between mandatory standards and tort liability.China Legal Science(4).
Wang Caifa.(1997).Science of Environmental Law.Beijing:China University of Political Science and Law Press,p.81.
Wang Guangyan.(2008).Discussions over China’s environmental quality standards and their applications.Jiangsu Environmental Science and Technology(3).
Wang Liming.(2011).Research on Tort Law(Vol.1).Beijing:China Renmin Univeristy Press,pp.291-292.
Wang Shengming.(2010).Understanding of the Tort Law of the People’s Republic of China.Beijing:China Legal Publishing House,pp.324-325.
Wang Zejian.(2009).Torts.Beijing:Peking University Press,pp.186-215.
Xie Jinchuan.(2005).Theoretical discussion over differentiated management.Theory Front,(23).
Ye Wenhu,&Zhang Yong.(2013).Environmental management(3rd edition).Beijing:Higher Education Press,p.116.
Zeng Shixiong.(2001).Principles of Law of Damages.Beijing:China University of Political Science and Law Press,p.55.
Zhang Guoning.,Jiang Mei,Wei Yuxia,&Wu Xuefang.(2011).Key technical problems in enacting environmental quality standards.Research on Environmental Sciences,(9).
Zhang Xinbao,&Zhuang Chao.(2014).Expansion and strengthening:Comprehensive application of environmental Tort Liability.Social Sciences in China,(3).
Zhu Rongying.(2012).Natural facts,objective facts and scientific facts.Journal of Zhengzhou Institute of Light Industry(Social Science),(6).
(1)See Environmental Information Terminology(HJ/T416-2007)(published by the State Environmental Protection Administration, now renamed Ministry of Ecology and Environment of the People’s Republic of China, on December 29, 2007, implemented on February 1, 2008), Beijing:China Environmental Science Press(2007), p. 19. The Environmental Protection Law(April, 2014)replaced “human health” with “the public health” under Article 1, supplemented by Article2(1)of the Standardization Law of the People’s Republic of China(November 4, 2017).
(2)Civil Judgment No.(2012)Tanzhongminyizhongzi 222 by Xiangtan Intermediate People’s Court of Hunan Province.
(3)Civil Judgment No.(2010)Zhehangminzhongzi 3015 by Hangzhou Intermediate People’s Court of Zhejiang Province.
(1)Environmental pollution liability under this paper is limited to physical injury and property damage that environmental pollution causes to civil subjects.Other completely different problems such as damage to the ecological environment and public rights and interests in the environment are excluded. Also,this paper introduces the Ambient Air Quality Standards(GB3095-2012)and the Environmental Quality Standards for Surface Water(GB3838-2002)as representative samples for analysis andgives consideration to both the Environmental Quality Standard for Noise(GB3096-2008)and others. This paper is so rolled out because the two samples are the best representatives after considering enforceability, enforcement authority, coverage of application and applications of currently-in-force 16 environmental quality standards issued by China’s environmental protection department. Plus, the majority of other legal literature focuses on the aforesaid three standards, such as reference No. 5, Chen W..
(2)Lu. Zh. M.&Yang Sh. M. Control Environment and Healthy Risks-Drawing Lessons from the U.S. Environmental Standards, Chinese Journal of Environmental Management, 2017, Vol. 7.
(1)Environmental Information Terminology(HJ/T416-2007).
(1)See NAAQS Table, at https://www.epa.gov/criteria-air-pollutants/naaqs-table(Last visited on April 13, 2017)
(2)See Environmental Protection Agency, National Ambient Air Quality Standards for Particulate Matter(Final Rule), 78Federal Register 3086(2013).
(1)Behind this is PM2.5 limits set by the U.S. Federal Ambient Air Quality Standards, which also sets standard I to protect public health(annual average 12μg/m3), stricter than standard II for public wellbeing including the environment(15μg/m3). See NAAQS Table, at https://www.epa.gov/criteria-air-pollutants/naaqs-table(Last visited on April 13, 2017)
(2)Notice on Implementing the Ambient Air Quality Standards(GB3095-2012), file No.:Huanfa[2012] 11, State of Environmental Protection Administration,website:http://www. zhb.gov.cn/gkml/hbb/bwj/201203/t20120302_224147.htm, last visit:Oct. 24, 2017.
(3)See Environmental Protection Agency, 2013 pp. 3268-3276.
(1)Id.,3097-3164.
(2)See Lead Industries Association v. EPA, 647 F. 2d 1130, 1154(D. C. Cir 1980); American Petroleum Institute v. Costle, 665 F. 2d 1176, 1186(D. C. Cir. 1981);American Farm Bureau Federation v. EPA, 559 F. 3d 512, 533(D. C. Cir. 2009); Association of Battery Recyclers v. EPA, 604 F. 3d 613, 617–18(D. C. Cir.2010).
(1)PM2.5, PM 10 and total suspended particulates under environmental quality standards are particulates that are different merely in aerodynamic diameter.Altogether they are named particulates under emission standards.
(1)For example, the German Civil Code provides for that landowners must give proper tolerance to smog, smell of burning, odor and vibration trespassed from other’s land, where “proper tolerance” is the requirement of severity of disadvantage. Shen B. X. Comparison of the Civil Liability of Water Pollution in China and Germany, Journal of CUPL, 2014, Vol. 2.
(2)International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law(Preventing Cross-border Damage caused by Dangerous Acts), the 10th Supplement to the 56th United Nations General Conference(A/56/10), Article 2 and its comments(paragraphs 4-7), p. 314.
(1)Decibel(d B)mentioned in this paper is measured in A-weighted sound levels(unit:d B(A)), i.e. the sound pressure level measured with A-weighted network.The State Environmental Protection Administration(SEPA)expressed repeatedly that no provisions are set under the Law of PRC on Prevention and Control of Pollution from Environmental Noise with respect to the noise generated by elevators, water pumps and transformers, all of which should be monitored and managed by the competent department of environmental protection administration. Also, the legislation does not set environmental protection standards for these noises. See the replies to the inquiry about the application of environmental protection standards to service facilities inside residential buildings made respectively by SEPA(No.[2007] 54), SEPA’s General Office(No.[2009] 1014)and SEPA(No.[2011] 88). Even with these replies, however, many trial courts have heard cases involving noises produced by service facilities inside residential buildings as environmental noise pollution.
(1)Civil Judgment No.(2013)Suminzhongzi 0014 by Higher People’s Court of Jiangsu Province.