Regulatory mode selection and legal governance of China's response to climate change risk

HAN Kang-ning,SHEN Ran-ran

School of Law,Beijing Normal University,Beijing100875,CHINA

Abstract: The regulation of climate change risk is an important measure for China to achieve the goal of"carbon neutrality and carbon peak".Although China has built a legal regulation system for environmental risk at the macro level,and normative and functionalism have constructed different paths for regulating climate change risk,it is necessary to analysis the two paths at the micro level,in order to examine its adaptability to climate change risk.The normative mode of climate change risk regulation emphasizes the clarity of the legal regulation system,controls the regulatory subject formally,and pays attention to the role of judicial review;The functionalist mode of climate change risk regulation emphasizes the authorization of regulatory subjects,and identifies and manages climate change risks in the way of administrative self-control.In order to regulate climate change risk,in addition to the traditional way of solving the problem of"normalization" and"functionalism",there is also a third regulatory mode,that is,to overcome the inherent shortcomings and defects of both functionalism and normalization,and to integrate the two necessary: not only pay attention to the legal normative requirements of the normative mode,but also mobilize the initiative of administrative regulation under functionalism,and strengthen the judicial prevention function,and then improve the effectiveness of China's participation in global climate change governance.

Key words: climate change risk;normalism;functionalism;environmental risk;China mode

1 Introduction

The goals of carbon peak and carbon neutralitya Under the framework of the Paris Agreement,China submitted the "Strengthening Action to Combat Climate Change -China's National Independent Contribution"for the first time in 2015,setting the goal of reaching the peak of carbon dioxide emissions around 2030 and striving to reach the peak as soon as possible.In September 2020,China announced at the general debate of the seventy-fifth United Nations General Assembly: "China will increase its national independent contribution,adopt more effective policies and measures,and strive to reach the peak of carbon dioxide emissions by 2030,and strive to achieve carbon neutrality by 2060."provide direction and target requirements for the green transformation of China's economic and social development(He,2015).In the report of the 20th National Congress of the People's Republic of China,it was pointed out that"we should actively and steadily promote carbon peak and carbon neutrality...actively participate in the global governance of climate change",which pointed out the direction for China's practice of tackling climate change.The era of risk has come.As a concrete manifestation of the uncertainty of environmental risk,the climate change risk caused by climate change risk is urgent and unavoidable.Some Chinese scholars have carried out research around "the regulatory mode of environmental risk",b For relevant representative literature,see Zhu and Deng (2021)."the judicial response to environmental risk","the path exploration of climate change litigation","the human rights and political attributes of climate change",and have made certain achievements,responding to the governance needs of China's climate change risk,but taking the regulation of climate change risk as the core research on the choice of climate change risk regulation mode is relatively scarce.In view of the choice of climate change risk rules and modes,the public law,based on different research perspectives,has derived two approaches:normative and functional.Normalism focuses on addressing climate change risks with the normative structure within the law,emphasizes the use of clear legal rules for risk governance,and frames the power boundary of the regulatory body to restrict it.Functionalism,by introducing other elements of climate change risk regulation beyond legal norms,aims to achieve the goal of regulating climate change risk by public law as much as possible and properly select risk regulation means.Inspired by the existing research,this paper,based on the two basic thinking methods of public law to control climate change risk under the normative and functional principles,carries out the necessary investigation on the status of what should be,in order to examine whether it has truly achieved the legal objectives of addressing climate change,and then explore the third integration mode of China's climate change risk regulation.

2 Evidence of China's participation in global climate change risk regulation

Climate change is a typical systemic risk(Bi et al.,2021).Climate change caused by excessive greenhouse gases will form extreme weather events,which will cause systematic impact on the ecological environment and people's livelihood and economy,with obvious interactive characteristics (Helbing,2013).The excessive carbon emission behavior of "high energy consumption and high emission" business entities makes the carbon emission risk gradually accumulate,which may lead to regional environmental risk.This new type of risk is manifested in:the increase of greenhouse gas concentration in the atmosphere,exacerbating the occurrence of meteorological disasters and atmospheric environmental pollution;The massive accumulation of greenhouse gases threatens the overall security of the ecosystem;The total amount of greenhouse gases has exceeded the threshold,increasing the probability of public health hazards.

2.1 To safeguard social and public interests

The climate change caused by the increasing concentration of greenhouse gases in the atmosphere is a challenge to all mankind.The whole mankind has entered the stage of "climate emergency" and needs to take urgent action.As the largest developing country,China has also made commitments.c In September 2020,China promised to achieve carbon neutrality by 2060,from the current emission level to the peak of carbon emissions by 2030,and then to achieve carbon neutrality by 2060.Under the "double carbon" goal,regulating climate change risks is the embodiment of the country's international responsibility and safeguarding the public environmental interests of the domestic society.According totheChina-BritishCooperativeClimate ChangeRiskAssessment,the climate change risk is classified into emission risk (the probability of global impact of greenhouse gas emissions with carbon dioxide as the core),direct risk (the probability of impact of climate change on agriculture,natural resources and disasters),and systemic risk(the probability of chain risk of financial and consumer markets indirectly caused by climate change).d Relevant specific contents can be found at:https://www.cma.gov.cn/2011xwzx/2011xqxxw/2011xqxyw/201903/t20190321_518187.html.It is not difficult to find that the risk of climate change directly or indirectly affects the direct risk and systemic risk,and will pose a threat to the social and public interests in terms of ecological environment,economic development,production and life.Climate change risk has a negative and complex impact on public health (Jones,2001),but it can not be fully proved due to the existing scientific and technological level,showing the characteristics of uncertainty.China has issuedtheNationalStrategyforClimateChangeAdaptationto improve the adaptability to climate change in the field of public health and address the uncertainty of climate change at the macro level.However,not all climate change risks need legal regulation.The purpose of identifying and studying climate change risks in the scientific field is to prevent,respond to and resolve climate change risks by recognizing climate change risks,and thus eliminate the threat of climate change risks to the ecological environment and human rights and interests.Therefore,the regulatory standards of climate change risks reflect the concept of respecting science and technology and safeguarding public environmental interests.

2.2 To respond to international climate change risk governance

Under the framework oftheParisAgreement,China submittedtheStrengtheningActionon ClimateChange-China'sNationalIndependentContributionin 2015 to implement the concept of climate change governance.Since the beginning of the industrial revolution,almost all the increase in greenhouse gas emissions has been caused by human activities,of which carbon dioxide emissions account for the vast majority (Nema et al.,2012).As reflected intheSixthAssessment Report(AR6)recently released by the Intergovernmental Panel on Climate Change (IPCC),how to manage such hazards is the core theme of extensive climate change mitigation research,and the risk concept is the core of all three AR6 working groups.e Relevant specific contents can be found in (Intergovernmental Panel on Climate Change).2022.Climate change 2022:Impacts,adaptation and vulnerability.The development of climate change risk in the field of environmental science provides necessary scientific and theoretical reference for the regulation of climate change risk in the field of environmental law.The climate change caused by the increasing concentration of greenhouse gases in the atmosphere is a challenge to all mankind.The mankind has entered the stage of"climate emergency",and the emergency actions taken in the past have no substantive effect.TheGlobalCarbonBudget2020released by the Global Carbon Project (GCP) pointed out that the core driving factors of global carbon emissions decline are not fully in place,both domestically and internationally,and the control trend of the epidemic will gradually bring the total carbon emissions back to the previous levelf In 2019,due to the global blockade caused by COVID-19,the carbon dioxide emissions of fossil fuels will be reduced by 7%compared with previous years;In terms of regional fossil fuel emissions,due to the early control of the epidemic,China's rapid economic recovery has led to a small reduction in carbon emissions(1.7%),which is not obvious compared with the reduction in the EU(11%),India(9%),the United States(12%)and other regions.(Bennedsen et al.,2020).In order to achieve regional,national and global sustainable development goals,the United Nations has developed a series of action plans and frameworks to address global climate change risks,disaster risks and poverty reduction (Corner,2022).Among them,achieving the goal of carbon peak and carbon neutrality is regarded as a high priority,and global strategic actions to address global climate change and achieve disaster risk reduction are regarded as crucial.At the 27thConference of the Parties to the United Nations Framework Convention on Climate Change,China submittedtheProgressReportonChina'sImplementationoftheNationalIndependentContribution Goal(2022),summarizing the progress of China's independent contribution to climate change,and demonstrating China's determination to actively participate in global climate change governance.

2.3 As the embodiment of China's domestic risk prevention obligations

From the macro national level,the legitimacy of China's climate change risk regulation comes from the domestic environmental risk prevention obligations.Today's social development is full of more complexity and uncertainty,which is exactly the "risk society" described by German scholar Ulrich Beck,and is the result of modernization itself.The equality of risk society requires the country to respond in a timely manner in environmental governance and the construction of the rule of law.The factors that cause climate change and cause disasters include not only identifiable"risks",but also "risks" with scientific uncertainty.Article 8 oftheConstitutionofthePeople's RepublicofChinastipulates that "the state protects and improves the living environment and the ecological environment,and prevents and controls pollution and other public hazards." This reflects the rationality and legitimacy of the state's protection of environmental rights and interests,resulting in the type of national environmental protection obligations,that is,the obligation to maintain the status quo,the obligation to prevent risks,and the obligation to prevent risks.The risk of damage to environmental elements,including the atmosphere,and the threat to the public's personal and property rights and interests make it necessary for the state to use the state power,including judicial power,when performing environmental protection obligations and taking necessary actions.The precautionary principle in Article 5 oftheEnvironmentalProtectionLawof thePeople'sRepublicofChinacontains the concept of risk prevention.There are also separate laws such astheLawofthePeople'sRepublicofChinaonthePreventionandControlofDesertificationfor NationalDefense,theLawofthePeople'sRepublicofChinaonthePreventionandControlofWater Pollution,andtheLawofthePeople'sRepublicofChinaonthePreventionandControlof EnvironmentalPollutionby Solid Waste,which also directly or indirectly reflect the principle of risk prevention.Furthermore,in response to a series of action plans on global climate change and disaster risk formulated by the United Nations and fulfill the domestic and international tasks of climate change governance,the Information Office of the State Council of the People's Republic of China issued the white paperChina'sPoliciesandActionstoCombatClimateChangeinOctober 2021,focusing on China's basic concepts and national strategies to combat climate change.

3 A review of the normative mode of China's climate change risk regulation

Normalism emphasizes the supremacy of legislation and regards administrative power as a subsidiary power with a unique status of public law (Martin and Yuji,2005).Although the"deviation effect of normative implementation"g It refers to the standard implementation usually gradually deviates from the expectations of legislators,resulting in the inconsistency between the results of law implementation and legislative purposes.under the norm is the embodiment of administrative discretion,it lacks the basis of legitimacy.In short,in the process of regulating the climate change risk,the normative doctrine realizes the effective distinction between the public climate rights and the public regulatory power by formulating laws,and then protects the public climate rights in a targeted way to achieve the boundary definition of the climate change risk regulatory obligation of safeguarding the overall environmental interests of the society and strengthening the public power,so as to limit the unlimited expansion of public power.

3.1 Normalism's due requirements for China's climate change risk regulation

The normalization of climate change risk regulation from the perspective of public law focuses on the judgment of legal norms and the function of controlling the expansion of power,and pays attention to the rule orientation of the construction of legal norms and the conceptual attribute of legal expression in specific forms.Normalism deals with climate change risk based on the analysis of the internal composition of the legal regulation system and the systematic regulatory thinking,and applies the theory of administration according to law and the principle of proportionality to the legal system of climate change risk regulation.

3.1.1 To require the clarity of China's climate change risk regulation legal system

The normative climate change risk regulation is based on the existing theoretical system in the climate field,and appropriate innovation is made to ensure the clarity of the climate change risk regulation system.Compared with the private law,the public law regulation of climate change risk is based on the systematic function of legal doctrine,and we put forward that the new system of climate change risk control in the legal system framework of the "double carbon" goal to achieve the legal rationality of climate change governance.Climate change risk management will link the reduction of carbon emissions with the prevention and control of environmental pollution,especially the prevention and control of atmospheric pollution.For example,based on the concept of sustainable development governance,the administrative authorities should address the risk of climate change,strictly implement the"Implementation Plan for Synergistic Efficiency of Pollution Reduction and Carbon Reduction" jointly issued by the Ministry of Ecology and Environment and other seven departments in June 2022,and guide the establishment of a low-carbon emission economic mode.As the object of environmental rights,climate and environmental elements,which the public enjoys,need comprehensive protection of public and private laws,substantive laws and procedural laws (Zhou,2003).When taking necessary measures to regulate climate change risks,administrative agencies need to analyze the legitimacy and rationality of their administrative actions in combination with classical theories such as the theory of administrative behavior form and the theory of administrative process,in order to avoid the abuse of administrative risk regulation power.If necessary,we can also seek international cooperation or learn from foreign experience,such as learning from the UK's low-carbon economic mode to cope with global changes(Energy and Climate Change Committee,UK,2008),emphasizing the 3R (reducing,recycling,and reusing) resource development mode and the concept of resource conservation and environment-friendly utilization,developing circular economy,and building a low-carbon economic mode.To pursue the systematization of the legal basis for the regulation of climate change risk,the law needs to find the institutional elements that embody the regulation of climate change risk in individual environmental risk laws and regulations,and integrate them to form a legal regulation system of climate change risk with internal links.It integrates several legal norms in terms of value,logical coherence and organic integration at the institutional level.Of course,the climate change legal system that regulates climate change risks is a three-dimensional legal system centered on the basic law of climate change and surrounded by multi-level climate change-related unilateral laws.This system is not a static mode,but a dynamic adjustment process.It is constructed by"creating new laws and following the old laws"(Qin,2022).

3.1.2 To define the power and responsibility boundary of the subject of climate change risk regulation in China

Climate change risk regulation is a problem area that needs to be governed by multiple factors.It is necessary to clarify the responsibilities and corresponding legal responsibilities of the subject of climate change risk regulation in the form of legal norms,and define the boundaries of rights and responsibilities in the three-dimensional structure of "power responsibility" and "right obligation"h The concept of carbon emission rights is used in the Notice on the Pilot Work of Carbon Emission Trading Market issued by the General Office of the National Development and Reform Commission of China in 2011 and the Rules for the Registration and Administration of Carbon Emission Rights(for Trial Implementation)issued by the Ministry of Ecology and Environment of China in 2021..Carbon emissions are the rights of private subjects and the obligations that can be controlled.The carbon emission right is a kind of "right".There are two ways to reduce carbon emissions mainly through the command and control mechanism of carbon tax collection and the market mechanism of carbon emission trading.China chose the latter.Unfortunately,China's carbon emissions trading market is underdeveloped,and there will be various environmental risk issues with carbon emissions rights as the core,which require necessary regulatory regulations to ensure the appropriateness of carbon emissions rights.The cumulative and global characteristics of climate change make it difficult for private law to play its role;instead,the public law is more flexible in the change of rules and institutional innovation.For example,to strengthen the supervision of the executive power,strictly follow the carbon emission management measures oftheOpinionsonCompletelyandAccuratelyImplementingtheNewDevelopmentConceptandDoinga GoodJobofCarbonPeakandCarbonNeutralizationissued by the CPC Central Committee and the State Council,seek international cooperation to deal with climate change,strive to reduce the economic,financial and social risks that may accompany green and low-carbon transformation,ensure safety,and achieve carbon emission reduction;to establish a high carbon sink economic mode and vigorously develop a high carbon absorption economy.From the perspective of time and space,the dynamic changes of human social and economic activities have led to the uncertainty of carbon emission level.It is necessary to define the power and responsibility boundaries of the subject of climate change risk regulation to inject more certainty into future climate change.

3.1.3 To emphasize China's judicial control over climate change risks

Both administrative power and judicial power belong to executive power,but administrative power,as the management power,should be the regulatory power of the main climate change risk,while judicial power,as the judgment power,is more manifested as a supplement to the management power,with passivity.Administrative agencies have relative advantages in the regulation of climate change risk due to their strong scope of functions and professionalism,but behind the advantages lies the possibility of unlimited expansion of administrative power and arbitrary climate change risk.The judicial authority has the unique advantage of integrating political language and scientific language into legal language by relying on and independent jurisdiction.It has the role of reviewing and filling administrative regulations and plays the role of the last line of defense in regulating environmental risks.From a normative perspective,the government's regulation of climate change risk in the process of governance of climate change should be subject to the review of the judicial authorities to strengthen the supervision of the judicial power over the administrative power,thus ensuring the sound operation of the legal and regulatory system of climate change risk regulation(Zhu and Deng,2021).The doctrine of climate change risk is a positivist examination of the normative analysis of existing laws and regulations and governance practices by using systematic thinking,emphasizing the standardization of research positions and the systematization of thinking modes.In the traditional jurisprudence,it is mainly based on the judicial cases of climate change risk governance to summarize and reflect,so as to provide predictive guidance for judicial practice.However,in a strict sense,climate change litigation has not really appeared in China's judicial practice.Although relevant fields have been actively explored,judicial prevention of greenhouse gas emissions has not been carried out from the perspective of climate change risk.Therefore,the study of climate change risk governance in public law doctrine should not be limited to judicial cases,but should expand its vision to the draft legislation and administrative decisions related to climate change.In the context of promoting the modernization of the national governance system and governance capacity,the normative climate change risk regulation mode not only carries out judicial review of the administrative organs,but also inspects the climate change related elements of the legislative decision-making,administrative law enforcement and review of climate change governance,and even the Party regulations.The government makes full use of scientific risk assessment and economic benefit cost analysis in environmental laws and policies,with obvious technocratic color to weaken the role of moral factors in environmental decision-making,which also produces the lowest standard environmental risk indicators defined in the name of science and technology,sometimes unable to completely neutral or objective view of climate change risks.Climate change justice can urge administrative agencies to actively perform their climate governance functions according to law,and make up for the lack and slack of administrative accountability for various illegal acts.

3.2 Deficiency of China's climate change risk regulation under the Normalism mode

The normalization of climate change risk regulation has many obstacles in answering the question of "how to determine that the emission of greenhouse gases from specific activities or facilities into the atmosphere will have a specific impact on the local ecological environment or human rights and interests".The gap or uncertainty in relevant climate science,human cognitive ability in specific time and space and the limited level of science and technology make science unable to endorse all risk decisions.In addition,the scientific rationality of climate change risk regulation is often at odds with the democratic rationality of public climate interest appeal.The public participation and risk allocation issues included in climate change risk regulation are beyond the scope of the norm(Zhu and Deng,2021).

3.2.1 Static legal regulation being difficult to regulate dynamic climate change

At the national level,China has not yet enacted special legislation on climate change.Although the joint leading group for the drafting of laws on combating climate change,which was jointly formed by multiple departments,once formed the draft text oftheLawofthePeople'sRepublicof ChinaonCombatingClimateChange,but ended in miscarriage.Without the macro guidance of the national "double carbon" target law,the legislature could not clarify the specific content of the climate change risk,and could only regulate the climate change risk in a general way through the basic policies and guidelines of principle and abstraction.The absence of the"General Law"makes decentralized legislation unable to regulate the obligations and responsibilities of carbon emission and regulatory bodies.At this stage,China's legislation related to the control of carbon emissions involves many fields,such as energy law,science and technology law,pollution prevention law,and so on.Due to their different legislative purposes and the lack of overall consideration of climate change response,they are unable to carry out rule convergence and institutional coordination on the regulation of climate change risk in terms of content(Dong et al.,2021).

Therefore,the fragmentation of climate change legislation makes the legal application of climate change risk rules prominent.The clearness of the normative requirements makes it impossible for the climate change risk rules and laws to be deployed in advance.The legislative and administrative organs need to improve their administrative climate change risk judgment ability according to the progress of science and technology to ensure the stability of the law.

However,the climate change caused by the risk of climate change changes with time and has obvious cumulative effects.The environmental quality standards set by the administrative authority cannot respond to the dynamic characteristics of climate change in a timely and effective manner.The systematic construction of the carbon emission management system needs to be strengthened,especially for the legal status,function division and legal liability of the carbon emission supervision subject.For example,the carbon market information disclosure mechanism intheMeasuresfortheAdministrationofCarbonEmissionTrading(forTrialImplementation) is a mere formality,and the disclosure content only includes the names of carbon control units and verification institutions,the macro quota allocation scheme and other contents,and does not involve the specific emissions and verification data of carbon emission entities and other substantive information(Tang et al.,2018).

The administrative law enforcement system of carbon emissions is not coordinated.The laws and regulations system of climate change risk rules,which is dominated by industry laws,overemphasizes the law enforcement system of"unitary supervision"and"divide and rule".There are problems such as unclear division of powers between departments and unclear rights and obligations,resulting in "internal consumption" phenomena such as the fragmentation and dispersion of law enforcement departments,overlapping and conflict of duties among law enforcement departments,unable to effectively and centrally play the regulatory function.The establishment of the Panel on Climate Change has alleviated the absence of regulatory bodies at the national level to some extent,but its specific functions and coordination mechanism construction need to be clarified by law.

3.2.2 The rigidity of administrative procedures leading to the expansion of climate change risk regulation power

Under the current legal and regulatory system in China,climate change risk assessment is mainly integrated into the environmental impact assessment system,and the areas involved are mainly for environmental and health risk assessment and emergency events,which also leads to a strange phenomenon: the administrative organ approves the environmental assessment of the construction project,accepts the risk assessment report results as appropriate.Once the preventive environmental civil public interest litigation is filed,according to the requirements of formal review,the judicial authority mainly judges the legitimacy of the environmental impact assessment obtained by the construction act,resulting in the current judicial review of environmental risk assessment in the preventive environmental civil public interest litigation relying on the administrative authority.Moreover,the assessment level is low and the scope is one-sided,which cannot fit the climate change litigation cases in practice.Lawsuits seeking to mitigate or adapt to climate change caused by climate change risks have been launched in several jurisdictions and cover a wide range of legal forms: companies that emit large amounts of greenhouse gases into the atmosphere,and governments that fail to fully incorporate climate change into planning and development decisions.

According to the statistics of the database of the Sabin Climate Change Law Center of Columbia University,as of December 9,2019,the vast majority of defendants in the global climate change litigation cases were the government,involving environmental assessment and licensing,greenhouse gas emission reduction and trade,information disclosure,biodiversity and ecosystem protection,climate adaptation and public trust,showing obvious characteristics of public law litigation.The realization of the rule of law requires the joint participation of the static legal basis system and the dynamic judicial application process (Qin,2022).When the administrative"emission reduction" regulation fails and results in infringement of rights and interests,the intervention and relief of environmental litigation are needed to realize the principle of judicial final settlement.There is a judicial regulation of climate change risk between the two,which plays a role in the way of"prevention in advance".On the basis of realizing the relief of individual cases,the administration of justice can also produce effective communication between various elements of the construction of the rule of law such as legislation and law enforcement(Qin,2022).

4 The second option:A review of the functionalist mode

Compared with normalism,functionalism pays more attention to the effectiveness of legal norms of risk regulation in the application of climate change risk regulation.That is to say,the risk regulation power order in the legal norms is not the most core component,but should really achieve the regulatory function of preventing climate change risks through the implementation of laws to improve social welfare.Therefore,the regulatory mode of climate change risk under functionalism aims to promote the effective realization of the intent and objectives of legal legislation.

4.1 Functionalism's due requirements for China's climate change risk regulation

The field of administrative law in China is changing from normative to functional.By regulating the discretion of administrative subjects,it introduces the functional position into the design of administrative procedures and systems,and then helps administrative innovation to safeguard and enhance administrative vitality.It mainly promotes the improvement of the operational efficiency of administrative power by regulating the exercise of administrative power,so as to realize the long-term development of economic society (Tan and Fu,2021).In the field of environmental law,the regulation of climate change risks involved in the issue of climate change presents obvious functionalism characteristics,and thus derives the realization path from the perspective of functionalism,which is characterized by more effective and flexible regulation methods to deal with climate change risks.

4.1.1 Emphasizing the administrative power as the center for climate change risk regulation

The functionalist administrative law emphasizes the trust in the administrative regulation power of climate change risk,and constantly empowers the administrative authorities to regulate climate change risk by using the authorization system(Tan and Yang,2017),in order to achieve the goal of the rule of law in response to climate change.Under the influence of Montesquieu's"separation of three powers",the traditional legal theory believes that the executive power,legislative power and judicial power of the country need to be undertaken by different organs to balance,contain and supervise each other,in order to prevent the abuse of power and protect the legitimate rights of citizens.However,simply emphasizing the limited power cannot make the administrative power provide efficient public service functions.The field of climate change governance needs the support of scientific expertise.The"narrow"scope of traditional judicial and legislative powers cannot effectively assess and control the climate change risk,while the administrative organs,due to their unique functions,can continuously improve their own risk decision-making and management capabilities according to the development of science and technology.The state needs to give administrative organs a broader scope of authority and allocate corresponding administrative powers.The existence basis of public law has also shifted from order to organization to promote the realization of its social governance function(Qin,2022).Therefore,under the modern legal system,the tentacles of administrative power have extended to all fields of society,and it also has more discretion.The reality of"broad government"also laid the foundation for the operation of functional administrative law(Tan and Fu,2021).

4.1.2 Administrative regulation to control judicial review to bring climate change risk into play

Under the legal policy,China's core value goal in the process of climate change governance is sustainable developmenti The concept of carbon emission rights is used in the Notice on the Pilot Work of Carbon Emission Trading Market issued by the General Office of the National Development and Reform Commission of China in 2011 and the Rules for the Registration and Administration of Carbon Emission Rights(for Trial Implementation)issued by the Ministry of Ecology and Environment of China in 2021.,and it has chosen necessary means such as mitigation and adaptation to achieve this goal.In the specific process of climate change risk regulation,the"risk prevention"orientation that the law and policy science adhere to is the whole process,which not only requires the legislative department to pay attention to the climate change risk,but also to form a legitimate policy guidance and a complete regulatory system design;It also requires the administrative and judicial departments to reveal and realize the purpose of legislative"risk prevention"in the process of performing their functions in the administrative risk management and discretion,the setting of judicial interpretation and specific judicial decisions.Especially in the face of the global proposition of climate change,the government should strengthen the prevention of uncertain climate change risks.Of course,the premise of all these operations is based on the trust of the society in the administrative power to regulate climate change risks,and the authorization and empowerment of the government by the national and state power,rather than blindly pursuing the"big government"form of government scale(Byrne et al.,2014).

Functionalism also does not believe that the administrative power is complete and unmistakable when dealing with climate change.It believes that modern organs have inherent limitations of regulatory functions because they are subject to their terms of reference.Therefore,it is necessary for the legislative and judicial departments to participate in climate change risk governance in order to bridge the limitation of the administrative authority's climate change risk regulation function (Zhu and Deng,2021).This "bridging" does not focus on containment and supervision,but rather on cooperation and complementation.Under the paradigm of functionalism,the administrative regulation of climate change risk is to cope with climate change,prevent and contain environmental risks,and thus safeguard social and environmental public interests and legitimate private interests.Therefore,sticking to a single regulatory risk framework for administrative acts can not effectively deal with the accumulation and uncertainty of climate change risks.The government needs to comprehensively use all kinds of new regulatory forms inside and outside the law to go beyond the single regulatory framework for administrative acts,and comprehensively use all kinds of emerging regulatory forms.

4.1.3 Innovate administrative regulation procedures to cope with the scientific uncertainty of climate change risks

The risk identification,assessment and distribution processes involved in climate change risk need to be based on scientific knowledge,so the regulatory body needs to provide necessary endorsement for environmental risk decision-making with the help of professional knowledge in the field of science and technology.This means that it is difficult for the administrative power to rely on the normative thinking framework,and it needs to form an interdisciplinary knowledge-driven analysis path that integrates environmental science,sociology,economics and other disciplines to enhance the effectiveness of risk decision-making and management.In the field of climate change risk regulation,as the regulation law of administrative law risk control in the field of law and policy,on the one hand,the cost-benefit analysis method needs to be introduced into the field of administrative risk regulation by virtue of the dual regulation of market and society in economics;on the one hand,we need to use the risk prevention principle in the field of environmental law to carry out the necessary value measurement.According to the "three-part"theory of risk,the regulatory authorities need to make necessary judgment and identification of climate change risk,especially the participation of value measurement in the process of risk determination,risk management and risk decision-making.Of course,this value measurement includes policy considerations.After all,not all climate change risks need to be regulated by law.Administrative agencies need to allocate climate change risks in combination with the directional guidance of environmental policies,and also need to take into account the tolerance of society,so as to distinguish climate change risks from risks,risks and residual risks.The complexity of climate change risk puts forward higher requirements for the internal structure of risk regulation subjects.National decision-making and implementation of climate change governance need internal and external structures in organizational law to achieve.From the perspective of legal policy,national governance focuses on the construction and regulatory functions of organizational law.The organic law constructs the subject of administrative regulation of carbon emissions risk as an actor in the legal sense,and then influences the operational procedures and substantive norms of the subject of administrative risk management when regulating climate change risk according to specific rules.

4.2 Deficiency of China's climate change risk regulation under the Functionalism mode

The functionalist approach has advantages in effectiveness,flexibility and adaptability,.But compared with normative jurisprudence,it always faces many questions.The functional subject takes the realization of administrative objectives as the standard,but it is difficult to satisfy itself in terms of whether its risk regulation behavior has a legal basis(Tan and Yang,2017).

4.2.1 Doubts about the legitimacy of public law regulation of climate change risk

In order to prevent the unlimited expansion of administrative power from affecting civil rights under the rule of norms,"prohibition without authorization" is the basic requirement.China mainly takes climate change governance actions in the form of government-led greenhouse gas emission reduction in individual key industries and local pilot projects.The legal and regulatory system of climate change is also not mature.If the law grants the administrative authority the power of climate change regulation and leads the effective implementation of the administrative regulation power,it can build a basic framework for the legal system of climate change risk regulation.However,at this stage,China lacks special legislation on climate change,the legal norms for greenhouse gas control against climate change risk are relatively scattered,and the lack of macro-guidance on the purpose of climate change legislation,and the guarantee of internal and external coordination and connection mechanism,can not guarantee the effective exercise of the right to regulate climate change.The expression of"prevention"in China's environmental law and regulation system can be expressed through interpretation as follows:indirectly or directly implies the dual directions of "risk prevention" and "damage prevention",but more depends on the sufficiency conditions of scientific proof(Qin,2022).In terms of mitigation of climate change risks,althoughtheLawofthePeople'sRepublicofChinaonthePreventionandControlofAirPollutionstipulates the coordinated control of air pollutants and greenhouse gases,the coverage of greenhouse gas types is not comprehensive;theLawofthePeople'sRepublicofChinaonEnergy Conservation,theLawofthePeople'sRepublicofChinaonthePromotionofCircularEconomy,andtheLawofthePeople'sRepublicofChinaonthePromotionofCleanProduction(Articles 18 and 19)have also achieved the goal of controlling carbon emissions through the regulation of changing the energy structure,finding clean energy and improving energy efficiency;theLawofthePeople's RepublicofChinaonEnvironmentalImpactAssessment(Articles 1,7 and 17)protects the ecological environment and human health by implementing the environmental risk assessment obligations of enterprise production and project developers;theGuidingOpinionsonCoordinatingandStrengtheningtheWorkRelatedtoClimateChangeandEcologicalEnvironmentProtection(HJG[2021] No.4) promote the inclusion of climate change impacts in environmental impact assessment.In terms of adaptation to climate change risks,theForestLawofthePeople'sRepublic ofChina,theGrasslandLawofthePeople'sRepublicofChina,theBlackSoilProtectionLawofthe People'sRepublicofChina,andtheLawofthePeople'sRepublicofChinaonthePreventionand ControlofSoilPollutionprotect the natural ecosystem elements with the ability to absorb greenhouse gases and fix carbon.Decentralized relevant climate change laws and regulations are difficult to form a systematic climate change control force,and the regulatory body cannot effectively implement the law.Therefore,the legal system of climate change is characterized by obvious fragmentation in form,and the pursuit of prevention value of regulating climate change risks has not been fully implemented.In terms of climate change environmental risk regulation,there are only a few general environmental risk regulation provisions,such as the "prevention first" principle in Article 5 oftheEnvironmentalProtectionLawofthePeople'sRepublicofChina,and the authorized legal provisions for climate change risk regulation are even more rare.Therefore,the administrative organ can only regulate the climate change risk according to the normative documents related to the"double carbon"target issued by it,which is essentially a kind of administrative self-control,and the legitimacy of its regulatory decisions and measures is questionable.In the face of uncertain climate change risks,administrative self-control can not achieve absolute rational restraint,but can easily become an excuse to expand its regulatory power and evade regulatory responsibilities,which is contrary to the public law governance concept of administration according to law.

4.2.2 Lack of effective restriction on the regulatory power of public law on climate change risk

Functionalism provides a theoretical paradigm for climate change risk control.It is through the authorization of the subject responsible for carbon emissions regulation,the administrative power of risk regulation can be limited to connect administrative law,schedule procedures and carry out specific risk regulation measures.In other words,functionalism urges administrative law and administrative procedures to take the realization of the administrative task of combating climate change as the underlying logic,promote the function of administrative power through the legislative authorization of administrative management,and on this basis,rely on complete and reasonable administrative procedures to improve the effectiveness of administrative risk management.The functionalist administrative procedure emphasizes its unique independent value and function under the guidance of legitimacy.This also requires strengthening the institutional design of administrative procedures,and realizing the administrative vitality and operational efficiency of administrative power in regulating climate change risks through a non-restrictive administrative procedure construction.Procedural effectiveness requires that administrative power should reflect the combination of scientific rationality and democratic rationality in administrative procedures,build risk communication channels,and strengthen the guidance of legal norms in the process of administrative regulation of climate change risks.

The functionalist administrative"authorization" will urge the administrative agencies to play an active role in the process of climate change risk regulation,so as to adapt to the value pursuit of the country in response to climate change.However,this kind of initiative is obviously a double-edged sword.Without external constraints such as legislation and judicial supervision,it will make the administrative organs open the Pandora's box of risk regulation and move towards the boundless power domain.However,in the context of functionalism,there are theoretical and legislative obstacles to the accountability of judicial organs to the risk regulation of administrative organs.The regulation of climate change risk under the science of law and policy mainly relies on administrative actions that are not actionable to make risk decisions.The administrative accountability of climate change risk regulation is mainly dependent on the environmental accountability of administrative agencies,which is an obvious internal responsibility and restriction.Although the environmental public interest litigation and ecological environmental damage compensation system can be used to bring a lawsuit against the administrative organ for external supervision and restriction,it is still uncertain whether the climate change risk,which has obvious preventive characteristics,can be included in it.

5 The best choice: China's climate change risk regulation mode under the integration of normalism and functionalism

Through the above analysis of the normative mode and the functionalist mode of climate change risk regulation,they both have their own strengths and inherent disadvantages.If we can integrate normative and functionalism and learn from each other,we will form the best mode of climate change risk regulation.The integration mode of climate change risk regulation should adhere to the basic paradigm of normative and functional,taking into account the necessary restriction of the regulatory power of risk by the normative approach and the good governance of the regulatory objectives of risk by the functional approach.

5.1 Improving the legislative expression of China's climate change risk regulation

The jurisprudence emphasized by the normative doctrine requires the state to clarify the specific power of the administrative organ in the governance of climate change risk through legislative authorization,and then carry out targeted and efficient risk regulation.

First,to form a legislative regulation system for climate change environmental risks.The content and development stage of the legal system involved in the "double carbon" goal are different,and the department laws under which it belongs are also complicated.Therefore,without destroying the stability of the existing legal system,we should adhere to the principle of"building a new mode based on the old"(Qin,2022)to ensure the systematization of the legal basis for climate change risk regulation,that is,the"risk prevention"transformation of climate change-related laws and the exploration of special legislation on climate change should be carried out simultaneously.When the legislative system formulates regulatory actions on climate change,the most common is to separate mitigation (carbon emissions) and adaptation (carbon absorption),each of which follows a separate strategy and action plan and aims at different objectives.The result is often lack of policy coherence and inefficiency.The "double carbon" goal puts forward higher legal requirements for China's climate change mitigation work.The decentralized and fragmented greenhouse gas control laws and regulations are not enough to comply with the risk prevention and transformation trend of "low carbon",and cannot match the regulatory objectives of greenhouse gas source control and sink growth.

The second is to carry out"risk prevention"transformation of laws related to climate change.Under the constraints of the scientific uncertainty of climate change,in order to ensure rigor,environmental legislation cannot go ahead without limitation.Therefore,it is the most realistic choice to properly reform the existing legal system.Laws and regulations related to environmental factors affecting climate change,such as the Forest Law,the Grassland Law,the Law on the Prevention and Control of Soil Pollution,the Law on the Protection of Wetlands and the Law on the Protection of the Marine Environment,should take"addressing climate change risks"as one of the regulatory objectives of specific provisions.Secondly,clarify the legal responsibility of the subject of climate change risk regulation.At the legislative level,the administrative authority is given greater administrative discretion in the process of risk control,accompanied by an expansion trend,but lacks corresponding supervision and restriction mechanism.In particular,the administrative organ has the function of promoting economic development,and is prone to "administrative regulation imbalance" under the promotion of economic interests.The expansion of power itself and the profit-making nature of power holders make it possible to abuse power.Therefore,it is necessary to set up strict legal responsibilities to regulate the regulatory behavior of regulatory subjects.

Third,explore special legislation on climate change.In 2021,the Ministry of Ecology and Environment pointed out in the Guiding Opinions on Coordinating and Strengthening the Work Related to Climate Change and Ecological Environment Protection that we should accelerate the promotion of legislation related to climate change.Some regions in China have launched exploration.Qinghai and Shanxi have specified the chapter of "mitigating climate change" in the Measures to Combat Climate Change;The Regulations on the Protection of the Ecological Environment in the Shenzhen Special Economic Zone provide useful experience for the national legislation on climate change.First,we need to clarify the risk prevention concept of climate change legislation.The era of risk has come,and China's environmental law is undergoing a transition from "consequence control" to "risk prevention".The concept of prevention has dual connotations of damage prevention and risk prevention,that is,according to existing scientific knowledge or experience,necessary measures can be taken to prevent the occurrence of damage results before the environmental damage behavior causes damage consequences;Under the uncertainty inherent in science and technology,climate change governance needs to shift from damage prevention function to risk prevention function,and then take measures to avoid the occurrence of possible climate change risk.

5.2 To strengthen the function of public law regulation on climate change risk in China

Functionalism plays a complementary role in the epistemology of climate change risk and can promote the positive interaction between law,policy and doctrine.It is necessary to use the functionalist and legal policy modes to properly introduce other scientific theoretical knowledge and systems to expand the vision of the regulation mode of climate change risk.

The first is to clarify the functions of administrative agencies in regulating climate change risks.Administrative agencies are in a fundamental position in the regulation of climate change risks.In the process of responding to climate change,top-down administrative "emission reduction"policies and measures are the basic means to achieve the"double carbon"goal.Climate benefits are enjoyed by the whole people.The government becomes the trustee of climate benefits based on its functions,and creates and regulates the rights related to carbon emissions according to law.However,subject to the government's function of developing economy,sometimes there will be negative treatment of climate change risk governance.On this basis,some scholars put forward the construction idea of "double carbon" legal system: planning system,greenhouse gas emission control system,greenhouse gas reservoir management system,low-carbon development promotion system and carbon sink system,which all contain the administrative regulation concept of climate change risk.At present,administrative agencies have a relatively complete set of risk assessment,supervision and inspection systems,and become the main executors of preventive legal norms.

The second is to strengthen the supply of scientific knowledge on climate change.The scientific and accurate judgment of climate change risks requires professional knowledge,skills and material support,which makes the government departments need to constantly improve their scientific judgment when dealing with climate change.The existence of climate change risk stems from scientific uncertainty and the limitation of human cognition.Therefore,administrative agencies are required to make active risk identification and decision-making on the basis of comprehensive governance experience.But this kind of initiative is limited.To some extent,climate change risk decision-making needs to be based on the basic strength of environmental science,combined with experience and subjective thinking to understand climate change risk.Therefore,there is a limit to this kind of leverage,which requires patience with the remaining climate change risks and cannot be regulated at will.

The third is to pay attention to the introduction of public rationality.Scientific knowledge supply is important,but administrative agencies need to measure the value of cumulative and global climate change risks.Only the environmental standards formulated by the administrative organs can be used as the measurement basis,and the administrative organs can not get rid of the shackles of the uncertainty of climate change risk.Therefore,it is necessary to introduce the standard of social tolerance into the proof standard of climate change risk,and seek the combination of social rationality and scientific rationality.To correctly view the relationship between "cost-benefit analysis" and "risk prevention",we should not only comprehensively consider or expand the value measurement of climate change risk from the perspective of economics,but also combine the subjective feelings of the general public on environmental damage behavior.When judging climate change risk,we should integrate social tolerance and economic considerations,and promote the implementation of climate change risk decision-making with a relatively quantitative and operational standard.

5.3 Respond to the judicial appeal of China's climate change risk regulation

The normative mode of climate change risk regulation emphasizes the"control"of the subject of risk regulation.As a typical field for settling disputes,justice can handle climate change risk disputes involving complex interests more flexibly.The judicial power restricts and corrects the executive power,and makes necessary adjustments at the legislative level in time.

The first is to establish the concept of preventive climate change judicial governance.Climate change risk regulation has shifted from international compliance to domestic rule of law,and has stimulated the judicial role to play its role.In the global pattern,it shows the trend of legislative decline and judicial rise of climate change governance,and put it into practice.In May 2021,the Kunming Declaration of the World Environmental Justice Conference advocated diversified judicial measures,implemented the principle of prevention,and tried climate cases by means of preventive litigation;Climate litigation,protection of ecological damage and environmental pollution are listed as one of the types of litigation.One of the guiding principles of the United Nations Framework Convention on Climate Change is that"Parties should take preventive measures to predict,prevent or minimize the causes of climate change and mitigate its adverse effects";The Supreme People's Court issued the Environmental Resources Case Types and Statistical Specifications (Trial) (Law[2021] No.9),which listed"climate change response cases"as one of the five major causes of the case,reflecting the particularity and necessity of climate change litigation with carbon emissions as the core.This also directly or indirectly clarifies the legitimacy of judicial governance to regulate climate change environmental risks at the macro level.

The second is to strengthen judicial review of climate change risks.The judicial review of climate change risks can play the role of forcing the regime to deal with climate change risks,affect the climate decision-making process and reflect the reform demands of the climate rule of law,and also make the society maintain high attention and value recognition on climate change issues(Qin,2022).The relationship between executive power and judicial power is mixed behind the judicial review.As the last line of defense to maintain environmental justice,the judicial organ has inherent advantages in coping with climate change and maintaining social welfare,that is,it will not be bound by the objective requirements of economic development,and it is also in line with China's consistent principle of common responsibility to respond to global climate change.However,some regional governments take short-term economic development interests as the core,and ignore or deliberately avoid the negative impact of their economic construction behavior on climate change.With the continuous deepening of China's judicial system reform,grass-roots courts are gradually breaking away from the control of local government personnel and property,enabling them to respond more decisively to the climate change risks that may affect the interests of the administrative organs,and forming the institutional capacity to force the administrative power to deal with the climate change risks caused by climate change risks with judicial power.

The third is to explore climate change litigation from a preventive perspective.The continuous improvement of the preventive responsibility system has gradually led to the implementation of the judicial regulation of climate change risk at the level of normative basis.Article 19 of the Interpretation on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases lists the way of undertaking preventive liability,which together with the relevant provisions in the Several Provisions of the Supreme People's Court on the Application of the Prohibition Order and the Preservation Measures in Ecological Environmental Infringement Cases,constitutes the system of preventive environmental liability;The Civil Code attaches equal importance to the liability for damages after the event and the preventive liability before the event,and forms an adjustment with the liability composition system for damage to the ecological environment.As a legal issue,climate change has long been dominated by the legislative theory,but the contradiction between the uncertainty trend of international cooperation and the urgent need for domestic climate change governance has become increasingly prominent.It can be seen that the pure "legislative theory" cannot shoulder the heavy responsibility of climate change response.At the global level,the Kunming Declaration adopted by the World Conference on Environmental Justice identified "addressing climate change and its impact" as the key issue to strengthen the judicial response to the global environmental crisis.At the domestic level,the Supreme People's Court issued the Opinions on Giving Full Play to the Role of Judicial Function to Provide Judicial Services and Guarantees for Promoting the Construction of Ecological Civilization and Green Development in June 2016,which proposed"actively explore the judicial response measures to climate change and promote the construction of a national climate change response governance system";The Supreme People's Court,in its white paper,China's Environment and Resources Trial (2019),issued in May 2020,proposed to try climate change response cases according to law;In the white paper "China's Environmental and Resource Trial(2020)"issued in June 2021,it is clear that climate change cases involve"criminal,civil,administrative and public welfare"and other fields.All of the above call for the judicial role in the carbon emission regulation system that is covered by legislation and administration.

6 Discussion and conclusions

6.1 Discussion

(1)The legitimacy of China's climate change risk rules rests on a dual foundation: firstly,the diligent execution of domestic risk prevention obligations,underscoring China's commitment to safeguarding its environment and populace.Secondly,it hinges on active participation in the global climate change governance arena,reflecting China's dedication to being a responsible global stakeholder.This alignment of domestic responsibility with global cooperation exemplifies a holistic approach to climate change risk management,echoing the nuanced discourse in the Chinese text's concluding discussion.

(2)In shaping its climate change risk response policy,China should embrace a philosophy akin to"taking the essence and eliminating the dross."This philosophy implies the integration of proven and effective measures while discarding those that prove ineffective or inefficient.This approach harmonizes with the pragmatic view,as highlighted in the Chinese text's conclusion,suggesting the development of a comprehensive regulatory model that is both adaptable and functional.

(3) China's climate change legislative system ought to be dynamic,accommodating not only the creation of novel laws but also the preservation and amendment of existing ones.This multifaceted approach aligns with the nuanced discourse found in the Chinese text's concluding section,emphasizing the importance of a legal framework that evolves and adapts to the ever-changing climate change landscape.

(4) The cornerstone of China's climate change risk rules and policies must be a profound respect for the role of scientific assessment.This reverence for scientific guidance aligns with the final section's discussion in the Chinese text,which calls for a rational engagement with social climate issues.By incorporating scientific assessment and inviting rational societal participation,China can establish a more comprehensive and informed approach to climate change risk management.

(5) China should proactively explore a climate change litigation model that serves a dual purpose: offering relief for those affected by climate-related issues and,equally importantly,enacting preventive measures to avert future crises.This multifaceted approach is in line with the nuanced argument in the Chinese text's final discussion,where the idea of addressing climate change through litigation is seen as a multifunctional strategy encompassing both reactive and proactive dimensions.

6.2 Conclusions

In the pursuit of effective climate change risk regulation in China,the integration of normalization and functionalism emerges as a dual-pronged strategy,blending form and substance to foster a comprehensive and balanced approach.

(1) To achieve the integration of normalization and functionalism in climate change risk regulation in China,a critical step involves defining the precise powers and functions of administrative bodies.This can be accomplished through legislative authorization,ensuring that these bodies can comprehensively address various risk components impacting climate change governance.

(2) Complementary Role of Judicial Authorities: Beyond administrative regulation,the judiciary must play a complementary role in climate change risk management.This involves judicial review and litigation to enforce and enhance administrative regulations.This judicial involvement ensures a balance between functionalism and normalization,promoting more effective climate change risk governance.

(3) Integrated Regulation Model: Ultimately,a comprehensive climate change risk regulation model should be established within the legal framework.This model should revolve around administrative regulation as its core,supplemented by judicial oversight.This integrated approach encourages mutual learning between functionalism and normalization,contributing to the achievement of climate change risk regulatory objectives.

(4) Emphasis on Normative Principles: In this integrated model,normative principles play a crucial role by providing the foundational principles and rules for climate change risk regulation.These principles serve as a guide,channeling the vitality of judicial review towards effective risk management.

(5) Functionalism in Innovation: Functionalism is not left behind;it drives innovation in climate change risk regulation.By accurately identifying and assessing climate change risks,administrative bodies can exercise self-restraint and regulation.They can align their actions with the objectives of the"double carbon"goal,promoting legal and effective risk decision-making and management that balances scientific and democratic rationality.

In summary,the integration of normalization and functionalism in climate change risk regulation in China represents a balanced and comprehensive approach.It involves clear legislative authorization,judicial oversight,and the development of a regulatory model that harmonizes these elements.This approach harnesses the power of normative principles while encouraging innovation,ultimately advancing the goals of climate change risk regulation.

Acknowledgments

This research is supported by The Special Research Fund for Academic Postgraduates of The School of Law of Beijing Normal University (Grant Nos.2023LAW002,2023LAW015),and Beijing Normal University Interdisciplinary Fund Project(Grant Nos.BNUXKJC2208,BNUXKJC2211).