Rulemaking Under The Environmental State

This dissertation limits to the rulemaking of State Environmental Protection Agency, which is a comprehensive regulatory agency in environmental area. During the study of environmental administrative rulemaking, the study is based on legal norms and documents, to summarize and analyze the type, nature and procedure of environmental rule, to give suggestion on the institutional reform of rulemaking.In Chapter One, it introduces the environmental state rationale under risk society background to study the task transformation of administrative law under the environmental state circumstance. Then it points out that, due to the uncertainty of environmental issues, it is necessary to introduce the precautionary principle in environmental and related risk regulation areas.In Chapter Two, it first introduces the environmental regulation agencies and related rulemaking in the U.S.A. and Japan, and then draws the evolution and transformation process of environmental regulation agencies in China. The distinguished characteristics of environmental administration are strong scientific background, widespread interest conflict, generation balance and globalization. Due to the institution limitation of legislative and judicial branch, administrative agencies play a primary role in environmental regulation. Rulemaking is one of the most important environmental regulation form, because these rules consist the basis of environmental regulation.In Chapter Three, it discusses the difference between legislative rule and non-legislative rule in American law and the classification of decrees and administrative rules in civil law system. From a formalism perspective, environmental administrative norms can be divided into department regulations, normative documents, environmental standards and administrative interpretations. From a more substantial perspective, it can be divided into discretion criteria, interpretive criteria, and substantive administrative rule, guidance and organization rule. As to the nature of environmental rules, under the formalism approach, it can be judged by delegation test, procedure test, external form test and publication test; under the substantive approach, it can be judged by the internal and external force of environmental rules.In Chapter Four, it analyzes environment rulemaking procedure. It uses the effluence guidance formation procedure as an example to introduce the notice and comment procedure of Environmental Protection Agency of U.S.A., and discusses the related cost-benefit analysis mechanism. Then, based on China experience, it draws the outline of our rulemaking process, and discusses the initiation, draft, review and decision, publication, taking into effect, compilation, revision and abolishment process, to give a total summarization and comment on rulemaking process of China.In Chapter Five, it enumerates several suggestions on institutional reform of environmental rulemaking. Extend the scope of public participation to perfect the opinion collection system, increase reason explanation of rulemaking to improve reason-giving system to establish and optimize advisory committee system, establish cost-benefit analysis scheme to create more policy choice space for rulemaking, and try to introduce negotiation rulemaking procedure to intensify the participation function in environmental policy formation.