Approaching To Interactive Idea Of Public Participation

In China's social transformation period, rules of the environmental law are increasing, but the enforcement of these rules encounters predicaments. For example, the environmental right safeguarding incidents of Zhejiang's Dongyang and Xinchang in 2005, and the Xiamen's PX incident in 2007 all reflect the plight of the environmental-law-enforcement People's actual participation deviates from the public participation rules of the environmental law, which demonstrates the deficiency of theses rules. This thesis intends to solve the problem by institutionalizing public participation in environmental affairs, and construct a deliberative system of public participation.The thesis consists of four chapters.The first chapter points out the necessity and purpose of public participation in environmental affairs. Because of the high-tech nature of environmental problems, the complexity of interest-conflicts involved, and the subjective construction of environmental problems, it is necessary for the public to participate in environmental affairs. The ultimate purpose of public participation in environmental affairs is, through participation, to exert substantial influence on activities that affect the environment, thus enabling the environmental policy established by the government, the environmental standard and control implemented by the government fully reflect or meet the actual interests and needs of the participants, and also making up for the problems caused by the legitimacy predicament of government supervision over environment.Chapter two analyzes the influencing and restraining factors of public participation in environmental affairs, from both the subjective and the objective respects. The public are gradually concerned with and participating in public affairs concerning themselves. This change can not take place without the objective condition of China's social transformation. It can neither take place only with the subjective wishes of the public. Rather, it is accomplished by the organic interplay of both the objective and the subjective factors.The objective factor refers to the restriction of the change of social structure on people, under the background of China's social transformation. This chapter expounds, from the macro point of view, the social background of public participation in environmental affairs, especially the restriction and influence of China's social transformation over public participation in environmental affairs, and the change of the public caused by political, economical and cultural changes.The subjective factor refers to the factors of the public themselves. The public's environmental consciousness and sense of participation, their ability to obtain environmental information, their professional knowledge related to environmental subjects, their understanding of the environmental-polic-making-process, and the time and money required of the public when they participate, are factors that affect the extent of public participation.The third chapter analyzes, by individual cases, the deficiency of the rules that govern public participation in environmental affairs, and then points out the deep objective and subjective reasons for the deficiency. The objective reason for rule deficiency is that the government adopts unidirectional control method in the enforcement of environmental law, thus not giving the public enough power when making the rules. The subjective reason for rule deficiency is the thought of structure-determinism when rules are made. In such situations, individuals are passive and dominated, and their initiatives are neglected. The solution to rule deficiency is to institutionalize public participation in environmental affairs.Chapter four tries to seek a theoretical principle for the institutionalization that will correspond with the reality of China's transforming society. It points out that the institutionalization that stops at institution-establishment and administrative implement is incomplete. Because the formal institution is likely to reject the informal institution formed by the public, institution-design needs to consider the practical participating activities of the public. The first section observes and analyzes how the public specifically participate in environmental affairs. By distinguishing the ways of public participation into ways inside and outside legal order, and by analyzing the strategies and the reasonable choices of the ways of public participation in environmental affairs, this thesis comes to the conclusion that in China's social transformation period, people's subject consciousness increases and people have already had the ability to change the process of situations. Section two analyzes and draws on a structuration theory that can fully reflect subject initiatives. But the reality of China's social transformation makes clear that structuration theory can not be directly used as the basis for the study of Chinese experiences. However, structuration theory points out that the existence of subjectivity has particular significance to the sustained existence and development of institutions. That is also what this article learns from structuration theory.Chapter five points out that, in view of the increase of subject initiatives, an institution of interactive public participation, which can reflect subjectivity, should be established in the environmental law. To set up such an institution,Firstly, a theoretical foundation of the relationship between action and institution, which fits China's transforming society, should be built. By analyzing and drawing on Gidden's Structuration Theory, this thesis proposes to construct a theory, which can embody the interactive relationship between action and institution, as the theoretical foundation of institution. Holding interactive thinking means that people are no longer considered to be irrelevant and passive "puppets", but to be initiative and active subjects full of participation sense. The public take part in the management of environmental affairs by interacting with the government, which itself is an institution of interactive public participation in the environmental law.Secondly, considering political legitimacy and whether institutions can take actual effect, it is necessary to establish an interactive public participation institution in the environmental law. The government neglects or disregards public participation outside institutions, and adopts unidirectional control in environmental supervision, which not only makes the environmental right safeguarding mass incidents frequently take place, but also make public participation rules in the existing environmental law be lacking in actual effect. The environmental right safeguarding mass incidents urges the government to adopt measures to cope with the legitimate crisis. The solution is to take in public participation in the course of environmental supervision, to provide opportunities for expressing, exchanging and deliberating environmental interests, and to establish a public participation institution in the environmental law.The public participation institution in the environmental law must be realized through democratic ways, and the possible choices are representative democracy and deliberative democracy. As far as the public participation institution is concerned, in order to arouse people's sense of participation, more opportunities should be provided for public participation. Compared with representative democracy, deliberative democracy puts more emphasis on the communication and understanding between the subjects, on micro-level participation, and therefore choosing deliberative democracy as the guiding principle for the public participation institution in the environmental law can better reflect interaction and can better contribute to the realization of democracy on the micro-level. So this thesis chooses the deliberative public participation institution as the developmental direction of the public participation institution in the environmental law. The mission of the public participation institution in the interactive environmental law is to solve the deficiency of public participation rules by emphasizing interaction and by establishing dialogue mechanism and deliberation-decision mechanism. Dialogue mechanism can provide the public with a platform to talk directly with the government, which will ensure that the government makes proper decisions on the basis of communication, comprehension and agreement. The deliberation-decision mechanism, by maintaining the public's sustained influence on decision-making through institution design and by establishing micro deliberative organization outside the institution, can effectively ensure that the public exert influence on environmental decision making, and thus fundamentally solve the problem of deficient public participation rules.Chapter six preliminarily constructs the deliberative public participation institution. It discusses the necessity of the public using deliberative mechanism and the specific forms of the participation institution from three aspects, namely, environmental legislation, environmental enforcement and environmental justice. In the participation of environmental legislation, the significance of communication and deliberation to the validity of environmental legislation itself is emphasized. Specific forms of participation institution, such as legislative hearing, legislative symposium and legislative demonstration, are put forward. In environmental enforcement, this thesis emphasizes the significance of the improvement of environmental-information-open-system to environmental enforcement. It also proposes institutional forms, such as hearing and response, that can reflect the public's influence on environment administration authority. In environmental justice, this thesis puts forward public-interest-litigation, a form that the public participate in environmental justice, and proves the legitimacy of introducing deliberative mechanism in public-interest- litigation.