Basic principles of environmental law and the construction of environmental administrative licensing system

Jiang Min

Source: Journal of China University of Political Science and Law No.4, 20 1 1.

Abstract:? In modern society, the licensing system is the most important legal system to prevent environmental risks. At present, there are many discussions about the general legislative principles of administrative licensing (statutory reservation principle, convenience efficiency principle, trust protection principle, openness and fairness principle, etc.). ), but there is little systematic discussion on the application of the basic principles of environmental law in the construction of environmental administrative licensing system. Environmental administrative license has five characteristics: risk, scientific and technological background, interest balance, intergenerational balance and international relevance. Therefore, the system construction of environmental administrative licensing must follow the eight basic principles of environmental law, such as prevention first, prudence first, rational development and utilization, polluter burden, scientific and technological promotion, public participation, collaborative cooperation, national environmental resources sovereignty and no damage to foreign environment. These eight principles all have their own clear requirements for the construction of environmental administrative licensing system. Under certain circumstances, the burden of proof of licensing has shifted. ?

Key words:? Environmental risks; Environmental administrative license; Basic principles of environmental law; System construction?

Judging from the environmental legislation of various countries in the world, the licensing system is the most important legal system to prevent environmental risks. This system is widely used in modern environmental law, and some scholars even call it the "pillar" system of environmental risk control, because it is convenient to bring all kinds of development, construction and pollution discharge activities that affect the environment into the track of unified national management, and strictly limit all kinds of activities that affect the environment within the scope stipulated by the state, so that the government can effectively manage the environment. { 1}?

The construction of any system must follow certain legal principles. Since the promulgation of the Administrative Licensing Law, academic circles have discussed many general legislative principles of administrative licensing (including legal reservation principle, proportionality principle, convenience and efficiency principle, trust protection principle, openness, fairness and justice principle, etc.). ), but there is little systematic discussion on the application of the basic principles of environmental law in the construction of environmental administrative licensing system, which is difficult to effectively guide the legislative practice of environmental administrative licensing. In recent years, some typical cases, such as the case of pollution of Songhua River by Jilin Petrochemical Company's Shuangbenzene Plant, the case of environmental impact assessment of Shenzhen Western Corridor, the case of environmental impact assessment of Beijing's "West One Up One Six" transmission line project, and the case of vibration disturbing the people in Beijing Metro Line 4 project, all reflect the deficiencies in the construction of China's environmental administrative licensing system to varying degrees, which is not unrelated to insufficient theoretical preparation. Based on the analysis of the characteristics of environmental administrative licensing, this paper discusses the application of the basic principles of environmental law in the construction of environmental administrative licensing system, with a view to providing useful guidance for specific legislation.

First, the characteristics of environmental administrative licensing

It is particularly important to explore the application of the basic principles of environmental law in the construction of environmental administrative licensing system and clarify the characteristics of environmental administrative licensing compared with other administrative licensing. From the overall structure of environmental administrative control, environmental administrative license has the following characteristics compared with other administrative licenses:

(1) risk nature

Activities and behaviors that may cause damage to the ecological environment are the objects of environmental administrative licensing control. Compared with general damage, environmental damage is difficult to control and recover. Economically speaking, the cost of recovery and treatment is quite high compared with taking preventive measures. For example, it took 100 years and a lot of money to harness the Thames. According to economists' calculation, the ratio of pollution prevention cost to post-treatment cost is as high as 1? :? 20。 ? {2} In addition, in most cases, environmental pollution and ecological destruction are irreversible and difficult to eliminate and recover. For example, heavy metal pollution, soil desertification and other problems are difficult to eliminate. The destruction of natural landscape, the extinction of species, the disappearance of tropical rain forests and virgin forests cannot be restored. The above characteristics determine that the decision-making of environmental administrative licensing must be highly risky, and once the decision-making is wrong, it will often cause irreparable losses. This "risk" objectively requires that the construction of the legal system of environmental administrative licensing must be aimed at preventing environmental damage.

(2) Scientific and technical background

The biggest feature of environmental administrative license lies in its high-tech background. Many harmful behaviors or products in the environment are often discovered after many years. For example, DDT, a pesticide, was almost regarded as a magic medicine before it was found to be harmful to the environment and ecology. Before the ozone layer test results were released, people could not understand that the widely used chlorofluorocarbons were the culprit. In addition, it is particularly difficult to identify the causal relationship of environmental problems, which often involves scientific boundaries, and it is impossible to give a positive answer immediately as the basis for identifying responsibility or taking corresponding measures. The environmental impact assessment of the Three Gorges Project in China is an example that is difficult to be scientifically determined. In addition, the setting of ideal environmental quality, the assessment of environmental impact, the identification of environmental improvement, etc. It also involves the consideration of the level of science and technology. In terms of legislative policy, enterprises should make efforts to follow up if they want to take measures equivalent to the current level of science and technology or make requirements beyond the current level of science and technology. Because of this high-tech background, the risk of environmental administrative licensing is greater, and the licensing decision made may be proved to be wrong or biased in the future. However, although it involves the uncertainty of science and technology and information, environmental decision-making is unstoppable, and in many cases it is often made under the condition of unknown science and technology. {3}

(3) Balance of interests

The decision of environmental administrative license is often closely related to the utilization of natural resources. Using or not using the existing resources often leads to the conflict between the economic interests of the industry and the victims' right to health and survival, which indirectly touches on the interests of consumers, employees' right to health and work and the competitive advantages of related enterprises. Even in the field of environmental protection, there are conflicts between different environmental values. For example, encouraging more paper products to reduce dependence on plastic containers, although helpful to garbage disposal and reducing the generation of pollution sources in chemical manufacturing, has brought pressure to deforestation. In addition, the conflict of interest brought by environmental administrative licensing may also be manifested internationally. Ozone layer destruction, greenhouse effect, acid rain and oil pollution all need to be solved internationally or regionally. However, internationally, countries have different responsibilities for the formation of these problems, and countries at different stages of development have different priorities for these problems, which has led to international conflicts of interest.

Because environmental administrative licensing decision-making is easy to cause extensive conflicts of interest in essence, it is often necessary to weigh or give priority to interests in the decision-making process, and it is difficult to make an absolute conclusion about a certain interest. This "balance of interests" nature enhances the political significance of environmental administrative licensing decision, and then strengthens the proportion of democratic ideas. {4}

(d) intergenerational balance

The core problem of environmental protection is the utilization and distribution of resources. Because many current methods of resource use and allocation are irrecoverable or difficult to recover, this generation makes decisions and the next generation bears the consequences. Therefore, in the process of implementing environmental administrative licensing, it is easy to lead to representative crisis (that is, who will be the representative of the next generation to participate in licensing decisions) and strong ethical implications. In view of this feature and derivative phenomenon, in the design of environmental administrative licensing procedures, we should emphasize the concern for the values of the next generation, design the participation of the next generation representatives according to the theory of trust law, strengthen the prediction and control of the consequences of resource use, and appropriately control the current quantitative decision. In essence, we should move from the perspective of "restoration" to the perspective of "prevention", and try our best to consider and protect the rights and interests of the next generation of natural resources in the process of licensing decision-making. {5}

(5) International contact

The earth's ecosystem (biosphere) is a flowing material and energy cycle, and it is not divided by artificially dividing national or regional boundaries. Therefore, the legal control exercised by a country or region on the utilization of human environment will inevitably have a positive or negative impact on other countries or regions to a certain extent. For example, if a country adopts high chimney measures to prevent and control air pollution, it may pollute its own country or region with atmospheric circulation; The discharge permit of water pollutants in countries located in the upper reaches of the river may lead to water pollution damage in countries located in the lower reaches of the river; Countries emit a lot of carbon dioxide, which leads to global warming, and so on. Therefore, although environmental administrative licensing is a domestic control measure in legal nature, it is often internationally relevant in many cases. The most typical example is the internationalization of the greenhouse gas emission permit system. Therefore, when designing the legal system of environmental administrative licensing, a country must coordinate its international obligations with its domestic planning to avoid being isolated from the closed system of the international community.

Second, the application of the basic principles of environmental law in the construction of environmental administrative licensing system.

According to the above characteristics of environmental administrative license, the author believes that the system construction of environmental administrative license must follow the following eight basic principles of environmental law in addition to the general legislative principles of administrative license. These eight principles have clear requirements for specific system construction.

Precautionary principle

The precautionary principle refers to a country's legal system of environmental administrative licensing, which should be aimed at stopping, restricting and controlling activities that may cause environmental damage. The core idea of this principle is to avoid or reduce the damage to the environment. It includes three elements: first, the object of prevention is environmental damage. The prevention of this kind of damage is often manifested in avoiding activities or behaviors that are harmful to the environment, but taking timely control measures after harmful activities or behaviors also belongs to the category of prevention. Second, the principle pursues to avoid the occurrence of harmful behaviors or events, but when harmful behaviors or events have occurred or are inevitable, the principle requires to prevent the expansion of hazards and control them in the smallest possible range. In other words, the goal of the precautionary principle is hierarchical, and only when the primary goal cannot be achieved can we settle for the second best. Third, its concrete measures should be proactive preventive measures beforehand, rather than passive remedial measures afterwards. {6}

The precautionary principle is a principle of environmental law recognized by the international community. Many international environmental laws clearly define the precautionary principle. For example, the Maastricht Treaty establishing the European Union (1992) regards the precautionary principle as one of the foundations of European environmental policy. It stipulates that "the environmental policy of the same body should aim at high-level protection" and "prevention should be the principle, preventive measures must be taken, and environmental damage must be corrected from the source of pollution first". The academic circles usually refer to the precautionary principle as the "golden rule" of environmental law, because this principle pursues harmlessness (although harmlessness is difficult to achieve) and reduces harm. Compared with other administrative licensing, the concept of prevention is the most prominent in environmental administrative licensing, which accords with the concept of "source control" in modern environmental management, and this is also a fundamental reason why the licensing system is widely used in modern environmental law.

The precautionary principle has four main requirements for the construction of environmental administrative licensing system: first, if it is more reasonable to avoid environmental damage through licensing than other control methods, then the legislature has the obligation to set the license in time and must not be lazy to exercise its legislative power. Second, the setting scheme of environmental administrative license must help to avoid environmental damage. At present, there are still many defects in China's environmental legislation, which need to be improved urgently. For example, according to the current legislation, in the management procedure of construction projects, the approval of environmental impact assessment is the precondition for the competent investment department (now the development and reform department) to approve construction projects. According to Article 36 of the Urban and Rural Planning Law, if a construction project needs to provide the right to use state-owned land by allocation (Article 54 of the Land Management Law stipulates that state organs, military organs, urban infrastructure, public welfare undertakings, energy, transportation, water conservancy and other projects can provide land by allocation), it is necessary to obtain the site selection opinions of the planning department before applying for the approval of the investment department. However, the current legislation does not stipulate that environmental impact assessment should be carried out in the site selection stage of construction projects, which objectively causes most construction projects to carry out environmental impact assessment after the site selection is determined (because the construction unit usually carries out site selection according to its own ideas, and it will not be revoked after obtaining formal site selection opinions, but environmental impact assessment is a constraint on development and construction activities). This legislative scheme makes it difficult for EIA approval to effectively play a preventive role, and at the same time ignores the environmental rights and interests of local residents. The case of Shenzhen Western Corridor EIA, the case of Beijing's "West One Up One Six" transmission line project EIA, the case of Beijing Metro Line 4 project vibration disturbing people, and the case of Zhuhai Gongbei Substation EIA are all disputes caused by project site selection. (7) Third, aiming at avoiding the occurrence of environmental damage, improve the application conditions, examination standards and supplementary provisions of the license to ensure that the environmental administrative license plays a preventive role. The fourth is to strengthen the follow-up supervision responsibility of the licensing authority. When the licensee fails to perform the obligations stipulated in the license correctly, the licensing authority should take effective measures to avoid environmental damage in addition to administrative punishment. When environmental damage is inevitable, the issuing authority has the responsibility to prevent the damage from expanding and try to control the damage as small as possible.

(2) the principle of prudence

This principle means that a country should plan and arrange carefully when setting and implementing environmental administrative license. When there is a potential threat of serious or irreversible environmental damage, it should not delay taking reasonable and cost-effective measures within its own capacity to prevent environmental deterioration on the grounds of lack of scientific, sufficient and conclusive evidence. According to the provisions of the Rio Declaration, the precautionary principle includes three elements: (1) the seriousness or irreversibility of the threat. That is, there is a huge environmental risk, and the academic circles call this degree of risk "risk threshold". Different legal documents have different expressions on this threshold. The requirement of Rio Declaration is "serious or irreversible threat"; The Bergen Declaration on Sustainable Development requires "the threat of serious or irreversible damage"; The provisions of the Convention on Transboundary Watercourses "may lead to significant adverse transboundary impacts"; The Framework Convention on Climate Change stipulates that "there is a threat of serious or irreversible damage"; The Convention on Biological Diversity stipulates that "biodiversity is threatened by serious reduction or loss". The terms "serious", "significant" and "irreversible" used in the above-mentioned legal documents seem to set strict standards, but what are "serious", "significant" and "irreversible" cannot be found in these legal documents. Therefore, there is still a problem of how to judge the degree of danger in the practical application of this principle. (2) the uncertainty of science. That is, there is no sufficient and clear scientific evidence to prove whether there is a causal relationship between an act and dangerous consequences. Based on the principle of prudence, the lack of sufficient scientific evidence does not constitute a reason for not taking effective preventive measures. In other words, even if it is scientifically proved that a certain behavior or event may not cause environmental damage, preventive measures should be taken. (3) Take cost-effective preventive measures. In the principle of prudence, the subject of cost-effectiveness is the whole mankind, that is, whether the preventive measures to be implemented are cost-effective, not whether they are beneficial to a country or a group, but whether they are beneficial to the whole mankind. It should be pointed out that, unlike the cost-benefit estimation in the economic field, the cost-benefit estimation in the environmental field is relatively complicated. It is relatively easy to estimate the gains and losses in property, but it is more difficult to estimate the losses in society, psychology and natural ecology. For example, the Songhua River pollution caused by the explosion in Jilin, the panic it caused in people's hearts, the distrust of the government, the destruction of the natural ecology of the Songhua River and the international problems caused by the pollution belt flowing into Russia are all difficult to calculate by "quantity". {8}

The uncertainty of science is the main difference between the precautionary principle and the precautionary principle. Not taking scientific certainty as a necessary condition for taking preventive measures reflects a more positive attitude of human beings in preventing environmental hazards. According to the precautionary principle, the development of human environmental protection should be based on scientific evidence, and whether it is the prevention or treatment of environmental damage, scientific evidence is always regarded as the necessary basis for action. The advantage of this way is that the action is more targeted and purposeful, and it can also bring the expected effect. However, the existence of environmental risks with chemical risks and biological risks as the main contents has raised a new topic for human beings: should we do something when human beings cannot grasp sufficient scientific evidence? The principle of prudence requires that people should take effective measures as long as there is definite evidence to prove the possibility of damage, even if the evidence is insufficient. This is not only a renewal of ideas, but also a respect for life. {9}

A typical example of environmental deterioration caused by not following the principle of prudence is global warming. For a long time in the past, many countries delayed taking effective measures to control greenhouse gas emissions on the grounds that there is no scientific evidence to prove that greenhouse gases cause climate warming (which is also one of the reasons why the Bush administration abandoned the Kyoto Protocol), which led to global warming.

The requirements of prudence principle for the construction of environmental administrative licensing system are:

First, when a certain kind of activity or behavior poses a serious or irreversible threat to the environment, and there is no sufficient and reliable scientific evidence to prove whether there is a causal relationship between the activity or behavior and the dangerous consequences, a country should set up an administrative license for such activity or behavior (such as establishing a greenhouse gas emission permit system), or incorporate it into the environmental assessment permit procedure to control environmental risks, and must not slack off when fulfilling relevant legislative obligations. This is because, on the one hand, administrative license prohibits certain activities and behaviors, and on the other hand, it is lifted under certain conditions, which belongs to "two sides of the same coin".

Second, when implementing the license, the legislation should clearly stipulate that when there is no sufficient and reliable scientific evidence to prove that the above activities and behaviors will not cause dangerous consequences to the environment, the administrative subject should take measures such as refusing the license, controlling the number of licenses or adding fees to the license to control environmental risks.

Third, establish a system of shifting the burden of proof of license. In the traditional administrative licensing, when the licensing organ has any objection to the matters applied by the counterpart, it must explain the reasons. If the counterpart refuses to accept the decision and brings a lawsuit to the court, the licensing authority shall bear the burden of proof for the legality of the "decision not to license" {10}. If the court refuses to accept the evidence presented by the licensing authority, it may make a ruling to revoke the Decision of No License, which will be re-examined by the licensing authority, or even directly order the licensing authority to issue a license to the counterpart. In the environmental administrative license that applies the principle of prudence (which environmental administrative license applies the principle of prudence should be clearly stipulated by legislation), the licensing authority only needs to grant legislative provisions to explain that such matters are scientifically uncertain {1 1}, and can raise objections to the matters applied by the counterpart. If the counterpart refuses to accept the application and brings a lawsuit to the court, the counterpart shall bear the burden of proof to prove that the "decision not to grant permission" is illegal. That is, the counterpart must provide sufficient and reliable scientific evidence to prove that the activities he intends to engage in will not cause dangerous consequences, and the court can make a favorable judgment. In fact, the transfer of burden of proof, as a procedural system, has long existed in international environmental law. For example, according to the requirement of prior due process stipulated in Si Long Convention 1972, waste can only be dumped into the sea when it is absolutely certain that there is no feasible alternative disposal method on land. When the harm caused by dumping waste into the sea cannot be accurately proved, the dumper will prove that his behavior is environmentally safe. { 12}

(3) the principle of promoting scientific and technological progress

Professor Ye Junrong believes that the principle of benefiting from science and technology in environmental legislation means that when the government formulates environmental protection standards or makes other regulatory requirements, it is not limited to the existing scientific and technological standards, and even requires polluters to do their best to achieve what today's science and technology cannot achieve. From a static point of view, in the process of environmental decision-making, decision makers must always consider whether polluters can meet the control requirements according to the current scientific and technological standards. Therefore, when the legislature or the competent department "forces others" to make control requirements beyond the current scientific and technological standards, I am afraid it is untenable in jurisprudence. However, in the field of environment, we must consider the dynamic demand of promoting the development of science and technology. Professor Ye Junrong, for example, said that in the early days of environmental legislation in the United States, members of Congress explicitly declared that they would ask industries to do things that they could not do at present, with the aim of asking enterprises to carry out pollution prevention and control work, especially the innovative development of pollution prevention and control technologies. {13} After comparing China's energy efficiency standards with those in Europe and America, Wang Xueren pointed out that China's energy efficiency standards belong to the status quo standards, and it takes about half a year from release to implementation. The limited value of energy efficiency is generally lower than the average energy efficiency level of products in the market recently, and the principle is to eliminate a certain proportion of inefficient products. This standard setting mode is not obvious enough to guide product upgrading. Advanced performance efficiency standard is a standard mode widely adopted abroad. The target value of product energy efficiency in advanced standards is usually higher than the average energy efficiency level in the current market, and general enterprises must carry out technical transformation to reach the target value. The standard has a long preparation period from promulgation to implementation, generally 3 years to 15 years, so that enterprises can improve the energy-saving technology and production technology of current products. He believes that strengthening the research on advanced standards, innovating the formulation mode of energy efficiency standards and promoting advanced energy efficiency standards in China are of great significance for guiding enterprises to innovate energy-saving technologies. { 14}

The author believes that the system construction of environmental administrative licensing should also adhere to the principle of promoting scientific and technological progress. Specifically, firstly, when designing licensing standards in legislation (licensing standards often include environmental standards), it should help to promote an industry to improve pollution control technology, and it is not allowed to design licensing standards under the pollution control technology widely used today. It is worth noting that most of China's environmental legislation does not stipulate licensing standards when setting administrative licenses. For example, Article 22 of the Environmental Impact Assessment Law only stipulates that "the examination and approval department shall make an examination and approval decision within 60 days from the date of receiving the environmental impact report, 30 days from the date of receiving the environmental impact report form and 65+05 days from the date of receiving the environmental impact registration form, and notify the construction unit in writing", but it does not stipulate the examination standard. This situation does not meet the requirements of the Administrative Licensing Law (of course, this is related to a large number of environmental laws and regulations formulated before the promulgation of the Administrative Licensing Law) {15}. The second is to establish a trading system of emission rights and energy-saving indicators based on the license under total control, and guide enterprises to carry out energy-saving and emission-reduction technology research and development through market mechanisms.

(D) the principle of rational development and utilization

The principle of rational development and utilization means that a country should combine the development, utilization and protection of natural resources and energy to achieve the goal of sustainable development when setting and implementing environmental administrative license. This principle embodies the balance between human ecological interests and economic interests, the interests of contemporary people and those of future generations, and its theoretical basis is the scarcity of environmental resources.

In the construction of environmental administrative licensing system, the principle of rational development and utilization is mainly embodied in three aspects: first, when designing licensing examination standards, according to the renewable or non-renewable characteristics of natural resources and energy, the development and utilization of fossil energy and natural resources such as wild animals, forests and grasslands are strictly controlled within a reasonable range, and renewable energy is encouraged to replace fossil energy to ensure the sustainable utilization of environmental resources. Second, based on the absorptive capacity of the ecological environment and the permit system, a total pollutant emission control system (including greenhouse gas emissions) is established to ensure the realization of energy conservation and emission reduction targets. Third, because environmental resources are scarce, they belong to all people and are managed by the state. Therefore, we should pay attention to licensing through fair competition such as bidding, auction and listing (that is, through franchising) to ensure that environmental resources are allocated to the best users.

(5) polluter pays principle

The polluter pays principle (polluter? Pay? Principle), also known as PPP principle, also known as "the polluter is responsible principle". In the field of environmental administrative licensing, this principle means that the licensed polluter should bear the responsibility of controlling environmental pollution and compensating for losses. The theoretical basis of this principle is the externality "internalization" of environmental problems. 1972, the Organization for Economic Cooperation and Development (OECD) first proposed "polluter pays" (polluter? Pay? Principle), that is, polluters bear the cost of governance. Once put forward, this principle has been widely accepted by the international community, and many countries have identified it as a basic principle of environmental law. Article 16 of Rio Declaration on Environment and Development (1992) stipulates: "Governments of all countries should make efforts to promote the internalization of environmental costs and the utilization of economic means, and consider that polluters should bear the pollution costs in principle, respect public interests properly and not distort international trade and investment."

For polluters? Pay? At present, there are many different translations in domestic environmental law textbooks, such as "polluter pays principle", "polluter pays principle" and "polluter pays principle". On the surface, these different translations are correct, but after careful analysis, there are still differences between them, and these differences are important for understanding polluters? Pay? The original intention of the principle will have a significant impact.

The theoretical basis of "polluter pays" is the concept of "user pays" in economics. The translation of PPP principle into "polluter pays principle" was originally based on the jurisprudence that "whoever damages other people's things must bear the liability for damages". "Payment" reflects that the cost of environmental damage is imposed on the party that causes environmental problems. The development of environmental protection practice shows that the current PPP principle requires polluters to bear not only a liability for damages, but also a comprehensive responsibility for preventing, controlling and reducing pollution, not just "paying". Polluters sometimes need to clean up pollution and restore it to its original state, and sometimes they have to bear administrative and criminal responsibilities. Obviously, the translation of PPP principle into "polluter pays principle" is incomplete and cannot fully reflect the connotation of this principle.

Although the "polluter pays principle" does not explicitly propose "payment", "payment" is usually associated with a certain fee. Few people will say "pay" a responsibility other than money. "polluter pays" and "polluter pays" are basically the same in content, and neither can fully reflect the meaning of PPP principle.

From the literal understanding of the "polluter pays principle", we can draw the conclusion that the polluter must take full responsibility for controlling and compensating the environmental pollution and damage that has been or may be caused. This view seems to be correct from a fair and reasonable point of view, but in practical application, it is not feasible to require polluters to bear all the responsibilities themselves in most cases. This is related to the characteristics of environmental damage. Environmental damage is often the result of multiple factors. In practice, what the polluter can be asked to bear and what the polluter actually bears cannot be all or all the responsibilities caused by his actions, but only an appropriate or proportionate responsibility. Environmental damage also has the characteristics of long time, wide range and great influence. The extensive, long-term and high-intensity damage caused by some environmental accidents is simply unbearable for the perpetrators. In order to help the victims get proper relief, there are environmental taxes, environmental insurance and other systems in the domestic environmental field, while in the international environmental field, there are also environmental funds specifically for environmental damage in specific fields and international aid funds provided by developed countries to developing countries for environmental governance. All these show that it is not appropriate to translate PPP into "polluter pays".

Therefore, the most appropriate translation of PPP principle is "polluter pays principle" or "polluter is responsible principle". There is no difference in meaning between the two translations. The polluter pays principle is mostly adopted by scholars in Hong Kong and Taiwan, while the polluter pays principle is widely adopted in Chinese mainland. { 16}

In the system construction of environmental administrative licensing, the polluter pays principle is mainly embodied in the licensing-related environmental charging system, compulsory insurance system and environmental governance, restoration and relief system. For example, Article 25 of the Law on Compensation for Nuclear Damage in Taiwan Province Province stipulates: "Operators of nuclear facilities shall maintain sufficient liability insurance or financial guarantee to fulfill the limitation of liability for nuclear damage, and shall not operate nuclear facilities or transport nuclear materials until they are approved by the Atomic Energy Commission of the Executive Yuan." {17} Article 35 of China's Forest Law stipulates: "Units or individuals cutting trees must complete the reforestation task according to the area, number of trees, tree species and time limit specified in the cutting license, and the area and number of trees for reforestation shall not be less than the area and number of trees cut."

(6) the principle of public participation

The principle of public participation means that the public has the right to participate in the decision-making and supervision of environmental administrative licensing through certain procedures or channels, and have the right to receive corresponding legal protection and relief to prevent illegal and blind environmental management and safeguard the public's environmental rights and interests. In reality, because environmental problems often involve complex scientific and technological background, some critics argue that environmental control is most suitable for expert politics. However, environmental control often involves conflicts of interest and needs to be solved by borrowing democratic ideas. In environmental administration, the idea of participatory democracy is not to solve all problems by voting, but to let the affected people participate in the decision-making process through appropriate channels, so as to reconcile conflicts of interest, promote the development of democratic politics and improve the quality of government decision-making.

In the field of environmental administrative licensing, the principle of public participation is mainly embodied in the following aspects: First, before making a licensing decision, the administrative subject should listen to the opinions of those whose environmental rights and interests are affected (usually neighboring obligees and residents where development and construction activities are located), mainly through licensing hearing procedures. Second, citizens bring administrative public interest litigation related to environmental administrative licensing to safeguard environmental public interests. From a global perspective, there are two main types: one is to cancel the lawsuit, that is, to request the court to cancel the environmental permit illegally issued by the licensing authority; The second is compulsory litigation, that is, when the licensee fails to perform or fails to perform the obligations stipulated in the license, and the relevant competent authorities are lax in law enforcement, citizens request the court to order the competent authorities to take active law enforcement measures. {18} Third, citizens request the higher administrative organs to urge the lower administrative organs to perform their duties correctly, or change or cancel the illegal and inappropriate licensing decisions of the lower administrative organs through the channels of accusation and complaint within the administrative system. All the above three aspects need to make corresponding institutional arrangements in legislation.

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