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Preparing for the Post-Kyoto Era Greening of Energy Law in China Prof. Dr. QIN Tianbao, Assistant Dean School of Law, Wuhan University Climate Law in Developing Countries Conference University of Ottawa, Faculty of Law September 26-28, 2008 Outline 1. The Relationship between of the greening of Energy Law and Climate change 2. The greening of Guiding Ideas of China’s Energy Law 3 The Greening of Energy Legal System in China 4. The Greening of Energy Legal Regimes in China 5. The Barriers to the Greening of Energy Law 6. Prospect 2 Outline 3 1. The Relationship between the Greening of Energy Law and Climate Change 1.1 The definition of “Greening” of Energy Law The “greening” means overall revolution of the guiding ideas, fundamental principles and legal systems of the energy law through the incorporation of the environmental values. to realize the safe, effective and consistent energy supply to realize the sustainability of energy (the coordination of economic development, environmental protection, and social progress). 4 1. The Relationship between the Greening of Energy Law and Climate Change 1.2 The Evolution of the Greening of Energy Law the external reason lies in the degradation of the energy-related environmental problems. 5 1. The Relationship between the Greening of Energy Law and Climate Change the specific features of the energy law play the internal role. (1) the exploration of energy resource -“outputting” - ecological destroy; and the conversion and utilization - “inputting” pollution. (2) public interest constitute the common grounds and purposes of energy law and environmental law. 6 1. The Relationship between the Greening of Energy Law and Climate Change 1.3 The Greening of Energy Law in China in the post-Kyoto Era The energy law can be an important tool to regulate GHG through energy conservation, energy efficiency and the development of new and alternative energy sources. China, as one of main emitters of GHGs, understands clearly its crucial role at the international level under the principle of common but differentiated responsibilities. 7 1. The Relationship between the Greening of Energy Law and Climate Change 8 2. The Greening of Guiding Ideas of China’s Energy Law Energy problems involve energy industry itself, but also are related closely to economical security, environment protection, and social allocation. Accordingly, energy law shall be a body of legal rules regulating the whole energy lifecircle. Therefore, the previous one-fold approach to is being transited to a holistic and integrated approach. Such changes correspond to the evolution of guiding ideas of energy law. 9 2. The Greening of Guiding Ideas of China’s Energy Law security of energy supply --- security of energy supply and security of energy use --sustainability of energy Sustainability of energy is a comprehensive concept which encompasses economic, environmental and social aspects. Its economic aspect calls for secure energy, its environmental aspect needs clean energy, and its social aspect requires equitable energy. 10 2. The Greening of Guiding Ideas of China’s Energy Law 2.1 Secure Energy To ensure energy’s sustainable supply and enhance the capacity of the domestic supply, China’s energy law aims at optimizing energy structure, improving market-based mechanism, managing energy demand, encouraging innovation of energy technology. 11 2. The Greening of Guiding Ideas of China’s Energy Law 2.2 Clean Energy China plans to enact or have enacted the (Basic) Energy Law, Energy Conversion Law, Renewable Energy Law, have established many new legal regimes; and have reformed its administrative management system. 12 2. The Greening of Guiding Ideas of China’s Energy Law 2.3 Equitable Energy equitable energy allocation and effective accession for those poor or marginalized people where usually are rich forest areas are very important. The development of methane and other new, alternative energy resources might reduce their dependence on the traditional ones, such as firewood and accordingly reduce deforestation, which could increase sinks of greenhouse gas. 13 3. The Greening of Energy Legal System in China 3.1 The Drafting of the Basic Energy Law In 2006, China began to draft the legislation of the Energy Law. And it is expected to be approved and enter into force by 2009. Its purposes, fundamental principles and specific regimes all reflect the idea of SD, aiming at achievement of the balance between energy and economic, social and environmental development. 14 3. The Greening of Energy Legal System in China The coordinated development between the exploitation and utilization of energy and protection of ecologic environment is a fundamental principle of the Energy Law. To this end, it prescribes company’s environmental obligations, and requirements on clean energy development, control of main pollutants, the ecologic protection and rehabilitation and financial incentives and disincentives in the process of energy exploitation and utilization. 15 3. The Greening of Energy Legal System in China 3.2 The Introduction of Renewable Energy Law Renewable energy is featured as not only its renewable ability but also its universality and cleanness, and is related closely to combating global warming and reducing GHG emission. China’s 2006 Renewable Energy Law ranks exploitation and development of renewable energy as a priority and encourages all kinds of entities to invest in this field. 16 3. The Greening of Energy Legal System in China To ensure the effective implementation of the Renewable Energy Law, China will introduce 12 supporting laws and regulations. The annul amount of renewable energy utilization, in 2006, is 2000 million tons of standard coal, accounting for 8% of the total energy consumption, which steps firmly toward to the target of 10% of renewable energy among national energy by the year 2010. 17 3. The Greening of Energy Legal System in China 18 3. The Greening of Energy Legal System in China 3.3 The Amendment of Energy Conservation Law Energy conservation is a basic policy in China and also a priority in its energy strategy. In 1989, China has issued the Energy Conservation Law. However, many provisions are too general and vague to carry out, and some key provisions on energy conservation were absent. Generally speaking, it could not meet the challenge from climate change. 19 3. The Greening of Energy Legal System in China Under this background, China amended the Energy Conservation Law which entered into enforce on Oct. 28th 2007. The revised Energy Conservation Law is expanded from 50 articles to 87 articles; clarifies further the competent authority for energy conservation, strengthens the legal responsibilities; adds requirements of energy conservation for construction, transportation and governmental institutions. 20 3. The Greening of Energy Legal System in China 21 3. The Greening of Energy Legal System in China 3.4 The Promulgation of other Energy-related Laws and Regulations China is planning to amend its Coal Law and Electricity Law and to enact newly the Oil and Natural Gas Law and the Atomic Energy Law. For example, considering nuclear power is a new and clean energy, and won’t cause any pollution to the atmosphere. Development of nuclear power actively should be an essential policy in China's energy development. 22 4. The Greening of Energy Legal Regimes in China 4.1 Energy-related Ecological Compensation China’s draft Energy Law states that the State shall establish the energy-related ecological compensation regime. This compensation, on one hand, is to restore the ecological environment in areas affected, such as to plant trees to recover the destroyed forests; on the other hand, to compensate local communities whose interests has been decreased and potential opportunities reduced heavily because of energy activities. 23 4. The Greening of Energy Legal Regimes in China 24 4. The Greening of Energy Legal Regimes in China 4.2 Environmental Impact Assessment There are two categories of EIA in China, EIF for planning and EIA for construction projects. The greenhouse effect is one of the key elements when evaluating environmental impact on each energy planning and construction projects. Therefore, the prevention and mitigation measures EIA in the report could reduce CO2 and other GHG emissions, thus effectively combating climate change from the source. 25 4. The Greening of Energy Legal Regimes in China 4.3 The Public Participation Regime Public participation to the largest extent is the necessary requirement to efficiently and effectively implement energy law. The draft version of the basic Energy Law was published in major mass media and internet calling for comments from general public, scholars, experts and other stakeholders. It was always the case when China enacted or amended other specific energy laws. 26 5. The Barriers to the Greening of Energy Law 5.1 The Dispersive Energy Administration System A unified and comprehensive energy administration system will lead to the coordination between three dimensions of energy sustainability. In fact, China has reorganized its energy management agencies several times, but till now, a unified and comprehensive competent agency hasn’t been formulated yet at the national level. 27 5. The Barriers to the Greening of Energy Law In 2008, the former Energy Bureau of the NDRC was upgraded to he National Energy Agency, a vice ministerial-level agency, which integrates the responsibilities of many other related agencies. The new National Energy Agency is mainly responsible for drafting and implementing energy-related industrial planning, policies and standards, developing new and renewable energy resources and promoting energy conservation. 28 5. The Barriers to the Greening of Energy Law It is still far away from the comprehensive system of energy management. The new Agency might be still short of authority when it comes to the energy-related environmental problems or social problems, such as GHGs reduction. When it is necessary to coordinate such untraditional or untypical energy issues between the new Agency, as a vice ministerial-level institution, will not be able to act as a peer competitor with other ministries with higher administrative position. 29 5. The Barriers to the Greening of Energy Law 5.2 The Behindhand Technology of GHG Reduction In China, the behindhand technology applied in energy production and utilization proves to be one of important factors leading to low energy efficiency and abundant GHG emissions. There is a wide gap between china and those developed countries; and the backward technology in key industries in China, with high energy-consumption, still accounts for the larger proposition. 30 5. The Barriers to the Greening of Energy Law 31 5. The Barriers to the Greening of Energy Law 5.3 The Weak Awareness of Climate Change The weak awareness of climate change is always one of the largest and most profound obstacles to China’s mitigation and adaptation to climate change and in the greening of energy law. Many policy-makers refuse to take preventive measures for this uncertainty since it is less urgent and less visual than water pollution, air pollution and ecological destruction. 32 5. The Barriers to the Greening of Energy Law The awareness of general public of climate change is relatively weak. Some are lake of such idea or simply do not understand, to whom the intensive education prove to be particularly necessary; others possessing stronger notion of climate change have no idea about how to connect their daily life behaviors with the issue. It is essential to apply different educational measures to different targeted group of people. 33 5. The Barriers to the Greening of Energy Law 34 6. Prospect Nowadays, the process of China’s greening of energy law is keeping underway and China gradually follow the pattern of safe, clean, fair and sustainable energy path, Among others, the mitigation and adaptation to climate change become very significant aspects of the greening of energy law. It shows China’s courage and positive attitude towards international obligations in the post-Kyoto era by preparing ahead. 35 6. Prospect Indeed, it is still necessary for China to overcome many barriers: to reform the existing energy administrative system, to promote energy technological innovation; to enhance decisionmaking capacity and public awareness and to strengthen international cooperation. Only by doing so, is China able to greet the advent of the post-Kyoto era, and develop the green energy law as predicted. 36 Contact Information Professor of Environmental Law & International Law Assistant Dean, School of Law, Wuhan University Member, IUCN Commission of Environmental Law Member, IUCN Academy of Environmental Law – Committee on Teaching and Capacity Building Tel: +86 27 6875 3694 Fax: +86 27 6875 2091 Email: [email protected] 37 谢谢! Thank you! Merci beaucoup! 38