1, climate warming
2. Ozone layer destruction
3. Loss of biodiversity
4, acid rain spread
5. The forest area has decreased sharply.
6. Land desertification
7. Air pollution
8. Water pollution
9. Marine pollution
10, solid waste pollution
Second, the environmental situation in China
1, air pollution is soot pollution, dust and acid rain are the most harmful, and the pollution degree is getting bigger and bigger.
2. Acid rain is mainly distributed in the south of Yangtze River, east of Qinghai-Tibet Plateau and Sichuan Basin. Acid rain pollution is the most serious in central China.
3. The water in rivers, lakes and reservoirs is generally polluted to varying degrees. Except for some inland rivers and large reservoirs, pollution tends to increase, especially in the waters near industrialized towns.
4. Among the seven major water systems (Pearl River, Yangtze River, Yellow River, Huaihe River, Hailuan River, Liaohe River and Songhua River), the Yellow River Basin, Songhua River and Liaohe River Basin are seriously polluted by water.
5. The pollution of total phosphorus and total nitrogen in large freshwater lakes is extensive and eutrophication is serious.
6. The Bohai Sea and the East China Sea are seriously polluted, while the South China Sea is relatively light.
7. The deterioration of the ecological environment in fishery waters has not fundamentally changed, and there is an increasing trend.
8. Urban environmental pollution is becoming more and more serious.
9, urban surface water pollution is generally serious, showing a worsening trend. Most rivers are polluted to varying degrees.
10, two thirds of the rivers and more than100000 hectares of farmland in China have been polluted.
Three. Theme of environmental day over the years
1974: There is only one earth.
1975: human settlement
Water, an important resource of life
1977: Pay attention to ozone layer destruction, soil erosion, soil degradation and deforestation.
1978: development without destruction
1979: for children and the future-development without destruction.
1980: New 10 year, new challenge-development without destruction.
198 1 year: protect groundwater and human and human food chain; Prevent the pollution of toxic chemicals
1982: to commemorate the Stockholm conference on human environment 10, to raise environmental awareness.
1983: manage and treat hazardous wastes to prevent acid rain.
1996: Our Earth, Home and Residence
1997: for life on earth.
Overview of environmental pollution
Due to people's insufficient expectation of the negative impact of highly developed industries and unfavorable prevention, three global crises have resulted: resource shortage, environmental pollution and ecological destruction. Humans constantly discharge pollutants into the environment. However, due to the diffusion, dilution, redox and biodegradation of atmosphere, water and soil, etc. The concentration and toxicity of pollutants will naturally decrease, which is called environmental self-purification. If the discharged substances exceed the self-purification capacity of the environment, the environmental quality will change adversely, endangering human health and survival, thus leading to environmental pollution.
There are many classifications of environmental pollution:
According to environmental factors: air pollution, water pollution and soil pollution.
According to human activities: industrial environmental pollution, urban environmental pollution, agricultural environmental pollution.
According to the nature and sources of environmental pollution: chemical pollution, biological pollution, physical contamination (noise pollution, radioactivity, electromagnetic wave) solid waste pollution, energy pollution.
Environmental pollution will cause direct damage and influence to the ecosystem, such as desertification and forest destruction, and will also cause indirect harm to the ecosystem and human society. Sometimes this indirect environmental impact is more harmful than the direct harm caused at that time, and it is more difficult to eliminate. For example, the greenhouse effect, acid rain and ozone layer destruction are all environmental impacts caused by air pollution. This kind of environmental effect from environmental pollution is lagging behind, and it is often difficult to be detected or predicted when pollution occurs. However, once it happens, it means that environmental pollution has developed to a very serious degree. Of course, the most direct and easily felt consequence of environmental pollution is to reduce the environmental quality of human beings and affect their quality of life, physical health and production activities. For example, urban air pollution causes air pollution, and the incidence of people is rising. Water pollution worsens the quality of water environment, and the quality of drinking water sources generally declines, threatening people's health and causing premature birth or malformation of fetus. Serious pollution incidents not only bring health problems, but also cause social problems. With the intensification of pollution and the improvement of people's awareness of environmental protection, disputes and conflicts between people caused by pollution have increased year by year.
At present, environmental pollution problems have appeared in different degrees all over the world, including atmospheric environmental pollution, marine pollution and urban environmental problems. With the globalization of economy and trade, environmental pollution is becoming more and more international. In recent years, the problem of transboundary movement of hazardous wastes is a prominent manifestation in this regard.
"Environmental pollution" refers to "substances or energy used by people directly or indirectly enter the environment, which has harmful effects on nature, thus endangering human health, life resources and ecosystem, damaging or hindering the legitimate use of comfort and the environment". The "environmental pollution and other public hazards" listed in Article 24 of China's Environmental Protection Law include "pollution and harm of waste gas, waste water, waste residue, dust, malodorous gas, radioactive substances, noise, vibration and electromagnetic wave radiation to the environment." "Prevention first, combining prevention with control" is an important principle of China's environmental legal system, especially for environmental pollution. However, because environmental pollution is "twinned with economic development" and "has considerable value legitimacy or social usefulness" to some extent, it is unrealistic to completely eliminate environmental pollution virtually unless "zero growth" and "zero emission" are implemented. In view of this, "prevention cannot replace control measures" and "active control measures should be taken for environmental pollution and destruction that have already occurred".
First of all, the provider of environmental pollution control-the government
The practice in the history of human economic development irrefutably proves that the market is a more effective way to allocate resources. P.A. Samuelson explained this point in a popular way: a completely competitive and generally balanced market system will show allocation efficiency. In this system, the prices of all products are equal to their marginal costs, and the prices of all factors are equal to their marginal product values, so there is no externality. Under these conditions, if every producer maximizes its profit and every consumer maximizes its utility, then the economy as a whole is efficient, and you can't make anyone's situation better without making others' situation worse. This means that even the most capable planners can't find a better solution than the competitive market, given the social resources and technology, using the most advanced computers and making the most talented reconfiguration scheme. No reorganization can improve anyone's situation. Whether there are one or two markets or two million markets in the economy, this result is correct. However, these results are usually based on the assumption of a perfectly competitive market. In fact, the market is not perfect, it will fail. Market failure "means that the conditions needed to obtain an effective market solution do not exist or conflict in some way". In a narrow sense, market failure refers to the situation that the result of market operation does not meet Pareto optimal conditions, resulting in efficiency loss; Market failure in a broad sense includes the inability of the market to solve social problems such as income distribution in addition to market failure in a narrow sense.
One reason for market failure is the existence of pure public goods. P.A. Samuelson defines the concept of pure public goods as: "Everyone's consumption of this product will not lead to the reduction of others' consumption of this product. "Pure public goods are non-exclusive: due to technical or cost reasons, the possession of products by others cannot be ruled out; It is also non-competitive in consumption: adding another person will not cause anyone else to consume the product. Considering the non-exclusiveness of products, producers who pursue profit maximization have no incentive to supply public goods. Because once he produces this product, he can't rule out others' consumption of it. Then, can people who consume pure public goods form a private cooperative system and reach an agreement to jointly bear the cost of public goods? This kind of agreement may be feasible for small groups, but with the expansion of group size, the possibility of individuals becoming free riders also increases, so private voluntary agreements can no longer play a role. Therefore, for a huge group, "pure public goods are provided through the budget of the public sector". Environmental pollution control is an example of public goods, so "the supplier can only be the government representing the public interest".
In real life, pure public products or pure private products are rare, and more are mixed products with both attributes, which leads to externalities. The so-called externality means that the behavior of one producer (or consumer) directly affects the cost or utility of another producer (or consumer). According to the viewpoint of traditional welfare economics, externality is the "non-market" side effect of one economic force on another, and it is the result of the interaction of various economic forces. It includes both positive and negative effects. Positive influence is also called positive externality or external economy, and negative influence is also called negative externality or external diseconomy. The former is typical that a new technological invention is publicly used for free by others, while the latter is typical of environmental pollution.
In order to allocate resources effectively, we must correct externalities. The basic method is internalization of externalities, that is, transforming social costs or benefits generated by externalities into private costs or benefits of externalities producers themselves. Specifically, it can be divided into market mode and non-market mode. According to Coase theorem, as long as the property right is clear and the transaction cost can be ignored, resources will be automatically and effectively allocated. At this time, the definition of property rights to whom does not affect the effectiveness of resource allocation, as long as the definition is clear, the result of resource allocation is the same. But there are always transaction costs in the real world, and sometimes the transaction costs are very large, which is the case when there are many people involved. Therefore, it is necessary to eliminate externalities through non-market government intervention.
Transaction cost, exclusive cost and hitchhiking strategy make the private voluntary supply of public goods face many problems. Therefore, "one possible role of the government is to intervene in the allocation function of the market, so as to correct the market failure or adopt policies to make up for its impact." Providing public goods (including environmental pollution control and its institutional arrangements) has become the basic function of the government.
The government's intervention in the market has reached its extreme, forming a planned economic system that is completely opposite to the market economic system. Under this system, the administrative planning mechanism plays a fundamental role in resource allocation, and the economic function of the government no longer plays an auxiliary role in economic operation, but has become an all-round leader and dominator of the national economy. From what enterprises produce, how much they produce and to whom they sell it, to the determination and coordination of major proportional relations and parameters of the national economy, the government is in charge. "Here, all citizens have become employees of the state (armed workers). All citizens have become employees and workers of a national and national' syndicate'. " The whole society will become a management office and factory with equality between labor and capital. "
The above analysis seems to show us all the time that the market is imperfect and government intervention can be corrected. However, we have overlooked an important issue: government intervention itself has a cost, and there is also the phenomenon of "government failure". As an employee organization, the government has bureaucratic weakness and high operating cost, which easily leads to waste and red tape, indirectly increasing the cost of "taxpayers"; The policies of democratic governments often have a "neutral orientation". As the trustee of voters, it often embodies the interests of most voters, but it cannot meet the needs of special groups such as the most vulnerable groups in society. For example, protecting women, children, the disabled, the poor and so on. What deserves special attention is the "rent-seeking" behavior of politicians and bureaucrats. "People try to find ways to influence the country so that welfare can be transferred to them."
Second, the marketization of environmental pollution control-BOT model
Both the market and the government have their own advantages, but there may also be "market failure" and "government failure". Therefore, our task is undoubtedly to find a balance between the two and make them fully play their roles. According to the environmental management experience of OECD market economy countries and countries with economies in transition, the main role of the government in environmental protection is regulation and supervision, while providing necessary environmental public goods. However, this does not necessarily mean that the government will produce these products. The government can "contract the production of products to private manufacturers" and attract social funds such as commercial capital, the public, enterprises and institutions to participate, thus forming a diversified investment situation in society. Internationally, since 1980s, Europe and America began to advocate and encourage the private sector to actively participate in the construction and operation of environmental infrastructure, trying to establish a partnership between the private sector and the public sector, which was gradually valued and applied by many countries in East Asia. The construction and operation of urban environmental infrastructure in the United States is largely undertaken by the private sector; Malaysia divides the whole country into several regions and entrusts all the garbage and sewage treatment business to several major companies; In the past, Japan invested more than 80% of the government's environmental budget in environmental infrastructure construction, but now it feels inadequate and has many disadvantages, and it has begun to change. In China, the investment mechanism of environmental protection is basically the product of continuing the planned economic system, and the main investors are still the state and the government.
BOT model seems to be the natural thing of the "balance point" we are trying to find. Suddenly looking back, she was in the dim light. BOT (Build-Operate-Transfer) investment mode is that the government transfers the rights of infrastructure construction and operation to the project sponsors through franchise agreements, and provides commercial support and government commitment for some project risks; Project sponsors set up a project company, which connects many project participants through a series of agreements (contracts) to build and operate the project, and recover investment, repay loans and obtain income through operating income; After the franchise expires, the project company will hand over the project to the government free of charge. BOT investment mode has many advantages, such as strong financing ability, small demand for its own funds and guaranteed investment income. Therefore, "from the establishment of the world's first BOT project in Turkey in 1983 to 1993, nearly 150 infrastructure projects in the world have adopted BOT investment mode, with a total investment of more than 60 billion US dollars".
BOT investment is a complex system engineering, involving many parties, and there are also many contracts that regulate the rights and obligations of all parties. Its legal characteristics have strong adaptability and feasibility in China's environmental pollution control projects.
1, BOT is a cooperative relationship between the government and private capital aiming at the construction and operation of public infrastructure. BOT generally involves public facilities related to the national economy and people's livelihood. Infrastructure projects such as public welfare undertakings, due to the limited financial resources of the state and the inefficiency and chaotic management brought by monopoly, have to introduce private capital into these areas that should be invested and monopolized by the state. Therefore, BOT is essentially authorized by the government to license public facilities projects that should be built and operated by public institutions in China and the region to a private institution for construction and operation. "The construction of public infrastructure is an independent government function specific to the owner country, which is realized by private individuals." BOT projects in China are mostly distributed in basic industries such as thermal power plants, highways, tunnels and railways. And most of them are projects with huge investment such as subways, ports, thermal power plants and transportation, and there are few other types of projects. However, from 1998 to 2000, the central government issued 360 billion yuan of treasury bonds, with the focus on expressway projects. Driven by the "strong electricity policy", the electricity market in all parts of the country tends to be saturated. On the contrary, according to the latest statistics of the national environmental protection department, at present, the total daily sewage discharged from cities and towns in China is nearly10.40 billion tons, but the total sewage treatment that meets the national secondary discharge standard is only about 0.10.50 billion tons, and the annual output of urban garbage in China reaches 654.38+0.5 billion tons, and it is increasing at the rate of 8% to 1% every year. Over the years, the national garbage stock has exceeded 6 billion tons. Environmental protection industry has become a sunrise industry. However, there is still a big gap between the environmental protection products in China and the huge market demand. BOT investment will be promising in environmental protection industry, especially in environmental pollution control projects.
2.BOT is based on government franchising, and the government reserves and exercises its functions and powers in the form of administrative privileges in the contract. BOT mode is a systematic legal relationship group involving public interests, which is coordinated by public law and private law. In this huge legal relationship group, the core is government franchising, and its performance carrier is franchise agreement. All other contracts are based on franchise agreements and serve the implementation of their contents. Franchise agreement is a public law contract (administrative contract) in legal nature. The purpose of the agreement is public welfare, and the rights and obligations of both parties are not equal. The government is not only a party to the franchise agreement, but also an administrative organ representing the public interest. Its position is twofold, which is manifested as follows: First, the implementation of the administrative licensing system, private capital for profit-making purposes must be obtained first. Second, the government has the right to supervise the private performance of the franchise agreement, and has the right to modify or terminate the contract in order to safeguard the public interest; Third, at the end of the operation period, the government obtains the ownership of the infrastructure free of charge. It is the government's responsibility to control environmental pollution. Although the government can "contract" it to private individuals through the BOT model, it is obvious that the government cannot let itself go and give up its regulatory responsibility. China's legal documents on the prevention and control of environmental pollution have corresponding provisions, and people's governments at all levels bear the main responsibility.
3.BOT is a special way of private direct investment. Undoubtedly, BOT investment has the essential characteristics of private direct investment. For the purpose of making profits, private parties participate in public projects in their own names, raise funds by themselves, enjoy their own profits and bear their own risks. Moreover, at present, BOT in China often refers only to international BOT (foreign BOT), and does not include the possibility of domestic private participation in public infrastructure construction by BOT. 200 1 The first urban sewage treatment plant built by BOT in China was built in Beijing Economic and Technological Development Zone. The investor is jinzhou area Group Beijing Jinyuan Environmental Protection Company. Jinzhou area Group negotiated with Beijing Municipal Government to invest in the second phase of Beijing Beixiaohe Sewage Treatment Plant. In addition, Suez Group plans to invest in two sewage treatment plants in Lugouqiao and xiaohongmen. Encouraging domestic capital to participate in BOT investment will be the development direction of environmental pollution control in China. At present, China has abundant private funds. According to relevant statistics, China's actual private financial capital stock is not less than 10 trillion yuan, and there are 350 billion yuan of private funds idle in Zhejiang Province alone. At the same time, there are also a number of private enterprises with strong capital and technology, which have great enthusiasm for investing in environmental protection industry. Therefore, they have an objective basis for developing domestic BOT. This did happen in practice. Zhong Yi Huaneng Environmental Protection Technology Co., Ltd., a domestic private enterprise, reached an intention agreement with Anxin County, Hebei Province, to build a garbage treatment plant by BOT, with a total investment of100000 yuan. Sander Group, another private environmental protection enterprise, is even more ambitious. It launched the "China Clean Water Plan": it signed contracts with 12 provinces and cities nationwide, and announced the construction of sewage treatment plants in these places by BOT.
The design of BOT model successfully divides the infrastructure into three stages: investment construction, operational return and free transfer, and successfully separates the first two stages from the direct functions of the government and pushes them to the market, making them into fields that can be input and output. Using private management mechanism and market management mechanism to obtain high efficiency and high quality avoids the disadvantages of high cost and low efficiency brought by the state directly entering the commercial field as the main body. At the same time, the government, as the ultimate owner of the subject matter, enjoys a series of privileges from beginning to end, which ensures that the BOT model will not change the public welfare and publicity of infrastructure. As a public product, environmental pollution control needs "government supply" and "private production", and both the government and the market have found their own suitable positions.
Thirdly, the conflict and coordination between BOT model and China environmental legal system.
BOT mode is a new thing in the environmental pollution control project, so the conflict between BOT mode and China's current environmental legal system will be inevitable, and the coordination and integration between BOT mode and China's current environmental legal system is particularly important.
1, BOT mode and sewage charging system
Public goods are non-exclusive and non-competitive in consumption, but non-competitive products are not necessarily non-exclusive. Sometimes we can take very simple means of exclusion, such as charging, which can make exclusion possible. The reason why investors in BOT mode are willing to invest in environmental pollution control projects is because the public products of environmental pollution control can be exclusive through the system of charging pollution control fees, so as to achieve their profit purpose. In order to ensure this stable and only profit channel, the sewage charge system is very important.
The system of sewage charges (the system of collecting sewage charges) refers to a set of management systems in which the competent administrative department of environmental protection of the state collects certain fees from polluters who discharge pollutants into the environment or exceed national or local standards according to the types, quantities and concentrations of pollutants discharged. It is the concrete embodiment of "polluter pays principle (PPP)". According to the Interim Measures for the Collection of Sewage Charges, the use of sewage charges, as a special fund for environmental protection, is arranged by the environmental protection department in conjunction with the financial department for the following three aspects: ① subsidizing key pollutant discharge units to control pollution sources. ② Used for regional comprehensive pollution control. (3) used to subsidize the purchase of testing instruments and equipment, environmental publicity and education, technical training, etc. Under the BOT mode of environmental pollution control projects, the use of sewage charges needs to be redistributed. The project company directly collects pollution treatment fees from polluters, or the government pays them from sewage charges. Both schemes are feasible.
Corresponding to the polluter pays principle is the user pays principle (UPP). 1999 The State Planning Commission, the Ministry of Construction and the State Environmental Protection Administration issued the Notice on Raising Sewage Treatment Fees and Establishing a Benign Operation Mechanism for Urban Sewage Discharge and Centralized Treatment, which pointed out: "Sewage treatment fees are an important part of water prices. Cities should add sewage treatment fees to water prices according to users' water consumption to compensate for urban sewage discharge and sewage treatment costs and establish a benign operation mechanism for centralized sewage treatment. " In the United States, 55% of the cost of tap water is the cost of sewage treatment; In Denmark, the sewage treatment fee is 0.6 times that of 65438+ tap water. In the past, under China's planned economy system, environmental pollution control has always been regarded as a public welfare undertaking, and users do not need to pay. In BOT mode, environmental pollution control is no longer a pure public product, so it is natural to charge users. Since September 1 2002, Hangzhou Municipal Price Bureau has made structural adjustment to the tap water price in Hangzhou, but all water prices include the sewage treatment fee per ton of 0.4 yuan.
2.BOT mode and "three simultaneities" system
The "three simultaneities" system refers to all capital construction projects (including small-scale construction projects), technological transformation projects, natural development projects and other projects that may cause damage to the environment. Among them, facilities for the prevention and control of pollution and other public hazards and other environmental protection facilities must be designed, constructed and put into use at the same time as the main project. The "three simultaneities" system is a legal system initiated by China to control new pollution sources, and it is a concrete embodiment of the principle of "prevention first".
March 1986 "Management Measures for Environmental Protection of Construction Projects" stipulates that the "three simultaneities" system must be implemented for all construction projects that have an impact on the environment. The newly promulgated Regulations on Environmental Protection Management of Construction Projects reiterated this provision. Moreover, since 1989, the implementation rate of the "three simultaneities" system in China has remained at the level of over 98% continuously. It can be seen that the "three simultaneities" system has been deeply rooted in China's environmental legal system. However, the "three simultaneities" system was introduced in the 1960s and early 1970s. Today, the economic and social systems have undergone major changes, so the value of the "three simultaneities" system may need to be reassessed. Under the new situation of marketization and intensification of environmental pollution control, is it necessary to strictly require that "all construction projects that have an impact on the environment must implement the' three simultaneities' system"? We believe that the "three simultaneities" system should be diluted. When conducting environmental impact assessment, we should evaluate whether the construction project is suitable for centralized pollution control or independent pollution control. If it is suitable for centralized pollution control, there is no need to enforce the "three simultaneities" system. Of course, if it chooses to implement the "three simultaneities" system, the law does not prohibit it.
3.BOT model and deadline governance system
The deadline governance system refers to a set of measures that the people's government decides that the environmental protection administrative department will supervise the sewage units and existing facilities that exceed the standard for a long time and cause serious environmental pollution in the special protection area and meet the specified requirements. The deadline governance system is also an environmental management system with China characteristics, which embodies the principle of "prevention first, combining prevention with control" by reducing or eliminating existing pollution sources and seriously polluted areas. The deadline governance system was also born in the early 1970s, realizing the principle of "polluter pays". At present, the more scientific "polluter pays" principle has been replaced, and its performance in the field of "deadline governance" is "performance on behalf of". Agency performance is an indirect coercive measure in administrative law. "It refers to an administrative enforcement method in which an administrative subject hires someone to perform obligations instead of the other party who fails to perform administrative law obligations and forces the obligor to pay labor costs." Remediation of pollution within a time limit means that someone else performs the remediation task within a time limit and pays the remediation fee to the executor. The most suitable candidate for "other (performing party)" here is the environmental pollution control project invested by BOT. On the one hand, the pollution control companies established by such BOT projects are more specialized and intensive, which can reduce the cost of governance tasks within a time limit, thus reducing the cost of the whole society; On the other hand, pollution control within a time limit instead of compliance also provides a profit channel for investors in BOT mode, which can be described as "win-win".
4.BOT model and environmental legal responsibility
As a social norm, law is one of its important features, which is compulsory by the state, which is manifested in the investigation of legal responsibility for illegal acts. Environmental legal responsibility is a comprehensive legal responsibility, including private law responsibility (civil responsibility) and public law responsibility (administrative responsibility and criminal responsibility). Whether it is private law responsibility or public law responsibility, the subject of responsibility is environmental violator, which is beyond doubt. However, in the BOT model of environmental pollution control, who is the subject of environmental violations and who should bear environmental legal responsibilities has become a difficult problem for polluters and polluters. At present, scholars also have different opinions. We believe that on this issue, we should distinguish between private law responsibility and public law responsibility. Liability in private law is mainly caused by environmental tort. In the field of environmental tort, adopting the principle of no-fault liability has become a universal legal system in all countries of the world. Therefore, the polluter and the polluted person should bear joint and several liability for the environmental infringement caused by pollution, that is to say, the victim can bring a lawsuit to either party and demand civil liability. Of course, if it is caused by the fault of the other party, or otherwise agreed in the contract, the party who bears the responsibility first may exercise the right of recourse. In the responsibility of public law, the subjective fault of the actor is a necessary condition, so only the fault party in the polluter or pollution controller can be held accountable. This division of responsibilities is also feasible in practice. The victims of pollution accidents are often in a weak position in practice, and they can't pursue the real responsible person, but the person who pursues the responsibility of public law-administrative subject or judicial organ-is fully capable and should do so.