ZHANG Lu*

 

Abstract: With the continuous improvement in the protection of environmental rights in China, the demand for a “more beautiful environment” in the “needs for a better life” should serve as the basis for the formation of environmental rights. Environmental rights oriented toward the “needs for a better life” reflect the legal response to ensure that the environment meets people’s spiritual needs to a certain extent after the environment meets their health needs. Based on the provisions of the general personality rights in China’s Civil Code and related judicial practice, a legal normative interpretation of environmental rights oriented toward the “needs for a better life” can be established.At the theoretical level, the boundary of environmental rights should be determined by taking the obligation to tolerate as the bottom line.In the identification and protection of environmental rights in relevant judicial practices, factors such as the protection of reasonable expectations and the inertia of people’s perceptions of the environment should be fully considered with judicial discretion to render the positioning of judicial protection reasonable based on taking the obligation to tolerate as the bottom line.

 

Keywords: the needs for a better life · environmental rights · judicial discretion

 

On September 9, 2021, the State Council Information Office issued the National Human Rights Action Plan of China (2021-2025), which elaborated on environmental rights in a separate chapter. Previously, these were incorporated in “economic, social and cultural rights.” It was explicitly stated that “China will constantly meet people’s increasing demands for a beautiful environment, and ensure harmony between man and nature,” Taking the “demand for a beautiful environment” as a core requirement for strengthening the human rights protection of “environmental rights” reflects an important development trend of continuously improving the human rights protection of environmental rights in the context of the transformation of the principal contradiction facing Chinese society. General Secretary Xi Jinping pointed out in his report to the 19th CPC National Congress that “As socialism with Chinese characteristics has entered a new era, the principal contradiction facing Chinese society has evolved. What we now face is the contradiction between unbalanced and inadequate development and the people’s ever-growing needs for a better life.”¹ The demand for a “beautiful environment” is an important part of the people’s ever-growing “needs for a better life.” The response and protection of environmental rights based on the demand for a “beautiful environment” has become an important proposition for the theoretical research and practice of environmental rights oriented toward the “needs for a better life.” This paper explores and studies the problems of environmental rights mapped to the field of law in a general sense, environmental rights should serve as the basic right support to improve the human rights protection of environmental rights in China currently. This paper intends to explore and study the problems of environmental rights oriented toward the “needs for a better life,” including their positioning, their boundaries, rights protection, and remedies, in the context of the continuous improvement of human rights protection of environmental rights and transformation of the principal social contradiction in China, to promote the continuous improvement of the protection of environmental rights in China in a new era.

 

 

 

“A better life” is a core concept of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. It is the key to deeply understanding and fully grasping Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era.² To rationally position environmental rights oriented toward the “needs for a better life,” the fundamental questions such as how the basic connotation of “a better life” should be understood and what kind of demand for environmental interests is included in the people’s ever-growing “needs for a better life” should be answered.

 

In 2012, Xi Jinping described “a better life” as “better education, greater job security, more satisfactory income, more reliable social security, better medical and health services, more comfortable living conditions, and a more beautiful environment.”³ Clearly, “a better life” is a dynamic process in which social conditions and the natural environment are constantly improving. “A more beautiful environment” is an indispensable part of meeting the “needs for a better life,” which is also in line with the “demand for a beautiful environment” proposed in the National Human Rights Action Plan of China (2021-2025). Obviously, the “needs for a better life” contain the interest demand with “a more beautiful environment” as the main content. If the demand for environmental interests is taken as the basis of environmental rights with legal protections, it should be recognized and defined in accordance with legal prescriptions. Generally speaking, “beautiful” or “more beautiful” is a subjective description,feelings, with strong uncertainty, and is too vague to understand normatively. But clear and normative are the basic requirements of the law. Therefore, how to interpret the interest demand for “a more beautiful environment” in a clear and normative manner is the key issue to clarify its legal attributes and take it as the basis of environmental rights oriented toward the “needs for a better life”.

 

First, the certainty of the demand for “a more beautiful environment” can be explained theoretically from the development of the demand. Historically, the demand for environmental interests was first put forward in the 1930s at the legal level. Environmental problems represented by water pollution and air pollution began to change the normal interaction and influence between humans and the environment as harmful factors, and caused serious harm to human survival and development. Therefore, the core of early demand for environmental interests was “non-hazardous”, and the main goal was to eliminate the harmful impacts of environmental problems. However, with social progress and the continuous improvement of environmental governance, the demand for environmental interests has continued to develop, and there is a higher level of demand for environmental interests on the basis of ensuring “non-harmful”. From this perspective, the proposal of the demand for “a more beautiful environment” has a sound basis in theory, and studies can be conducted on its value orientation and basic positioning based on the theoretical approach.

 

Second, with regard to the normalization of the demand for “a more beautiful environment,” relevant laws on environmental interests introduced in different periods can be studied and analyzed. To what extent can environmental interests become interest demands with legal significance depends on whether the relevant legislation can respond to and reflect them clearly. When the demand for environmental interests was put forward in the early days, legal remedies were mainly for personal damage and property loss, and focused on ensuring “non-hazardous,” which was mainly reflected in the provisions related to environmental damage and environmental torts in the legislation, and took ex-post remedy as the basic way to respond to interest demands. With the continuous development of the demand for environmental interests, the demand for “a more beautiful environment” put forward by China at the present stage will inevitably require a corresponding response in the development and evolution of relevant legislation. The organization and analysis of the existing relevant legislative resources will not only be conducive to outlining the evolution and development track for legislation in response to the level of the demand for environmental interests, but also provide a legal basis for solving the normalization problem of the demand for “a more beautiful environment.”

 

In a word, it is highly feasible to address the certainty and normalization problem of the demand for “a more beautiful environment” in the “needs for a better life” in theory, which will be further discussed below.

 

 

From the perspective of historical development, people’s demand for environmental interests has not always existed, nor been fixed or unchangeable. In the social development stage dominated by farming, human activities had a limited impact on the ecological environment on the whole. The ecological environment could not only meet people’s needs for external natural conditions for their survival and development but also meet their spiritual needs to a certain extent. At this stage, people took a good ecological environment for granted, and even had the feeling that “my gaze rests upon the southern mountains.” There was no cognitive basis or consensus on the demand for environmental interests in society. With the advent of the industrial era, environmental pollution mainly represented by water pollution and air pollution appeared in succession. Environmental pollution has caused great harm to people’s property, heath, and even survival, making the public generally realize that it is not a matter of course to have an ecological environment suitable for survival and development, and people should have corresponding demands for environmental interests to eliminate the harmful impacts of an unhealthy environment and safeguard their rights to health, survival, and development. In other words, without the harmful impacts of environmental pollution on people, it would be difficult to form the social basis for corresponding demands for environmental interests, which is closely related to the logic of the formation of rights. Viewed from the origin of rights, “Rights are legal constructs devised by the minds of human beings, based on human experience, and they must be consistently defended in the court of public opinion. They must grow out of humanity’s experiences with injustices.”⁴ The public’s experience of “injustices” from the harmful impacts of environmental pollution has become the basic motivation to raise the demand for environmental interests and the basis of the formation of environmental rights.

 

The proposal of the demand for environmental interests began with people’s experience of “injustices” from the harmful impacts of environmental pollution. Therefore, in the early days when the demand for environmental interests was put forward, the core lay in “harmlessness,” with the main goal to eliminate the harmful impacts of environmental problems. However, with social development, the demand for environmental interests has changed. In essence, the core of the demand for environmental interests lies in people’s attention to the maintenance and improvement of their living conditions, but living needs are always hierarchical. With social progress and the continuous improvement of environmental governance, people’s requirements for the external ecological environment do not just stop at the material level to meet their health needs, but have gradually turned to the satisfaction of their needs for a comfortable life and even psychological belonging and identification. To sum up, the demand of people for environmental interests is bound to show the trend of developing from the level of “nonhazardous” and “safe” to “a comfortable life” and then “a beautiful environment.” Currently, the proposal of the demand for “a more beautiful environment” in the “needs for a better life” not only conforms to the general law of development of the demand for environmental interests but also reflects, to some extent, the continuous improvement of environmental quality and protection of people’s environmental rights and interests in the process of constructing an ecological civilization in China.

 

The proposal of the demand for “a more beautiful environment” not only reflects the level of development of the demand for environmental interests, but also provides an opportunity for the evolution and development of environmental rights. At the level of “harmless,” the demand for environmental interests mainly focuses on ending the damage to the physical health of people caused by ecological environmental pollution or disruption, and the goal is to eliminate the harmful effects of environmental problems and restore the environment to a state where it is harmless to health. It is not difficult to see that at the level of “harmless,” the core of the demand for environmental rights lies in “health,” which determines that the environmental rights at the early stage should take the right to health as the basic orientation. This theoretical judgment has been verified by existing research results on environmental rights and legislative and judicial practices. Article 98 of the General Principles of the Civil Law of the People’s Republic of China issued in 1986 stipulates that “Citizens shall enjoy the rights of life and health.” Some scholars believe that this provision recognized the certain environmental right of citizens and regarded the environmental right of citizens as a derivative right of the right to life and health.⁵ Some defined the right to the environment as the right to physical and mental health.⁶ In judicial practices, “the damages to personal rights and interests in environmental tort lawsuits are mainly remedied by asserting the right to health.”⁷ Overall, to satisfy the demand for environmental interests at the level of “harmless,” it is reasonable for the environmental rights to take the right to health as the basic orientation at the early stage. However, with the development of the demand for environmental interests from “harmless” and “safe” to “a comfortable life” and “a beautiful environment,”especially the proposal of the demand for “a more beautiful environment” in the “needs for a better life,” the environmental rights based on the demand for environmental interests will certainly develop accordingly. Maslow’s hierarchy of needs divides human needs into five levels from elementary to advanced: physiological needs, safety needs, social needs, esteem needs, and self-actualization needs, which essentially reflects the development trend of human needs from the material level to the spiritual level, and the level of the development of the demand for environmental interests also reflects this trend. The demand for environmental interests with health as the core reflects the attention to people’s material needs such as “physiological needs” and “safety needs.” The demand for environmental interests with “a comfortable life” and “a beautiful environment” as the main content emphasizes people’s needs for mental experience from the environment, which is closely related to people’s goals at the spiritual level such as “gaining respect” and “self-actualization.” From this perspective, people’s demand for “a more beautiful environment” is the hope and pursuit of continuous improvement of environmental conditions for meeting spiritual needs based on the satisfaction of health needs. The environmental rights based on the demand for environmental interests should go beyond the inherent positioning of the right to health, aim at the right to environmental interests at the spiritual level, and provide the guarantee of substantive legal rights for the realization of the demand for “a more beautiful environment” in the “needs for a better life”.

 

 

As to whether the environmental rights oriented toward the “needs for a better life” can be defined as rights of environmental benefits at the spiritual level and whether the rights can be differentiated from the right to health, the biggest problem is whether they are protected by laws and regulations, which determines whether the environmental rights oriented towards the “needs for a better life” can be turned into substantive rights from theoretical assumptions. This can be analyzed from two aspects of legislation and judicial practice.

 

Viewed from the type of interests confirmed legally, both the demand for health proposed based on the improvement of the ecological environment and the spiritual needs for improvement of environmental conditions fall into the category of personality interests. In the theory of civil law, personality is based on human ethical values. The legal protection of human ethical values has experienced a development process from “inside the person” to “external to the person.”⁸ This development process also reflects the expansion of the legal protection of personality interests from the material personality interests with health as the core to the spiritual personality interests. Based on the characteristics of different types of personality interests and their different protection needs in the specific stage of social development, laws provide different rights paths for different types of personality interests. According to the stipulation of specific personality rights in Paragraph 1 of Article 990 in the Part of Personality Rights of the Civil Code of the People’s Republic of China, the right to health has been confirmed as a specific personality right, which is also one of the important reasons for distinguishing environmental rights from the right to health at present. In the pedigree of rights prescribed by the law, the right to health has been established separately, and the environmental rights oriented toward the “needs for a better life,” as the products of the righting of environmental interests at the spiritual level, are actually to improve the protection of public environmental rights and interests on the basis of the right to health, which embodies the evolution and development of environmental rights in the continuous advancement of ecological civilization construction in China. In this regard, the provisions on general personality rights in Paragraph 2 of Article 990 in the Part of Personality Rights of the Civil Code can be regarded as the legal basis for normative interpretation of environmental rights. Paragraph 2 of Article 990 in the Civil Code stipulates that “A natural person enjoys other personality rights and interests arising from personal liberty and human dignity.” In the main content of general personality rights, the understanding of personal dignity is closely related to the recognition and confirmation of environmental rights. Human dignity is a normative system with rich connotations and diverse value judgments. In the traditional sense, human dignity is mainly reflected in respectful social interactions. In the current context of vigorously promoting the construction of an ecological civilization in China, a good ecological environment is an important guarantee for realizing human dignity. “The pollution and destruction of people’s living environment is an infringement of people’s interests and essentially shows disrespect to people.”⁹ Therefore, the demand for “a more beautiful environment” in the “needs for a better life” is a natural part of personal dignity at the present stage in China. The legal response to the demand for “a more beautiful environment” in the form of personality dignity is the improvement of the protection of people’s environmental rights and interests, and the interpretation and new development of general personality rights in the context of environmental rights. Based on the normative interpretation, “The Part of Personality Rights of the Civil Code makes provisions for general personality rights and takes personal dignity as the main part of general personality rights, which provides a solid legal basis for identifying the path to concretize general personality rights and confirming environmental rights”¹⁰.

 

“Taking personal dignity as the content of general personality rights can concretize the content of general personality rights and provide clear guidance for judicial discretion.”¹¹ Therefore, taking the concretization of general personality rights as a path to realizing environmental rights requires the support of judicial practice. “The experience of German law shows that the Civil Code should only establish the rules of general personality rights, but not declare its value basis so that the general legal thought or value basis of the connotation of the rules of general personality rights will be discovered and explained in judicial practice.”¹² On this issue, China has made relevant institutional arrangements in judicial practice. On June 4, 2018, the Supreme People’s Court issued the Opinions on In-depth Study and Implementation of Xi Jinping’s Thought on Ecological Civilization to Provide Judicial Services and Safeguards for Ecological Environment Protection in the New Era, which clearly stated that “We should adhere to a people-centered approach to constantly meet the people’s growing demand for judicial protection of a beautiful ecological environment and fair environmental resources, and effectively protect people’s right to live and develop in a healthy, comfortable and beautiful ecological environment.” The statement of “people’s growing demand for a beautiful environment” is a clear response to the demand for “a more beautiful environment” in the “needs for a better life” from the perspective of judicial practice. The statement of the “right to live and develop in a healthy, comfortable and beautiful ecological environment” which means differentiating the demand for environmental interests that focus on psychological experience from the right to health which is related to the demand for environmental interests in judicial practice. There is a clear orientation and institutional basis for identifying and confirming environmental rights oriented towards the “needs for a better life” by advancing the concretization of general personality rights with personal dignity as the main content.

 

 

 

The discrimination and analysis of the demand for environmental interests in the “needs for a better life,” and the positioning of environmental rights based on the level development and from the perspective of legislation and relevant judicial practices mainly focuses on research about what they should be, with the emphasis on explaining the legitimacy and possibility of the proposal of environmental rights based on the demand for “a more beautiful environment” in the “needs for a better life.” However, when environmental rights move from what they should be to what they are, there will be controversies inevitably. The key issue is to determine what constitutes “a more beautiful environment” in legal terms.

 

“A more beautiful environment” is the basis for the formation of environmental rights oriented toward the “needs for a better life,” and the basic direction of the demand for those rights. If “a more beautiful environment” cannot be established legally, environmental rights will become a castle in the air and lose their practical significance. “Beautiful” or “more beautiful” is highly subjective, which reflects people’s perceptions of the environment to some extent. As an interest demand with legal significance, it is fundamentally different from the traditional demands for legal interests. For example, the right to health is based on the demand for health. “Healthy” or “unhealthy” and “the degree of health impairment” can be judged according to clear medical standards, which are objective and scientifically verifiable. But there is no objective standard as mentioned above for the judgment of “a more beautiful environment.” In terms of semantic analysis, “more beautiful” as the attribute of “environment” can be divided into two parts: “more” and “beautiful.” “More” means a comparison. It is to compare the degree of environmental beauty with the previous degree. “Beautiful” is more uncertain, which is different from “harmless,” but it does not mean original. It mainly reflects human demand for the environment at the spiritual level. Since it has to be interpreted in a legal sense, “a more beautiful” environment in the demand for environmental rights oriented toward the “needs for a better life” basically refers to the continuous improvement of the environment on the basis of ensuring it is healthy and safe, and can meet people’s spiritual needs to a certain extent. But this is a very uncertain and relativistic description. The relativity and uncertainty of interest demands make it fundamentally impossible to determine the corresponding boundaries for the right to “a more beautiful environment,” which also means that it is hard to establish the right at the beginning.

 

Therefore, the fundamental problem in the shift of environmental rights oriented toward the “needs for a better life” from what they should be to what they are is essentially a problem of how to determine the boundaries of environmental rights. Clear boundaries for the rights are not only the basis for the formation of rights but also the basic premise for the formation of a stable and orderly pedigree of rights. “Every right has certain boundaries… If the boundaries are observed, there will be no conflict among them. Rights complement each other and are not subordinate to each other.”¹³ According to the previous analysis of the basic positioning of environmental rights oriented toward the “needs for a better life,” they aim at satisfying people’s demand for spiritual environmental interests. Therefore, how to legally determine the extent and scope of the right subject’s spiritual demand for “a more beautiful environment” should be the premise and basis of determining the boundaries of environmental rights. In essence, it is a problem about the level and limit of legal protection for human environmental rights and interests under the background of “the needs for a better life.” The solution to this problem not only involves the relationship between the human demand for environmental interests expressed by environmental rights and the protection limit of the right to health but also depends on the legal standard and reference in the case of uncertain interest demands. The following text will analyze and demonstrate the determination of the boundaries of environmental rights based on the above two factors.

 

 

The environment’s impacts on people are reflected in various aspects and at different levels, including the impacts at the physical level, and the impacts at the spiritual level. Among them, the impacts at the physical level are mainly reflected in the basic survival needs of human beings, that is, the environmental impacts on human normal physiological functions, health, and life safety. Therefore, health is the core of interest demand proposed based on the environmental impacts on people at the physical level. The environmental impacts on people at the spiritual level are mainly reflected in the satisfaction of people’s spiritual needs for a “comfortable, beautiful” environment to a certain extent. In Maslow’s hierarchy of needs theory, human needs are hierarchical, and higher-level needs are formed based on the satisfaction of lower-level needs. The “needs for a better life” are the medium and high-level needs of people,¹⁴ which determines that the demand for “a more beautiful environment” in the “needs for a better life,” as a kind of spiritual activity, is at a higher level of human needs. And these needs are established based on the satisfaction of the physical needs of people, namely, health demands. The right to health is the basic expression of health demands. The spiritual needs of people for a “comfortable and beautiful” environment, as mentioned above, are the basis for the interest demands of environmental rights. With reference to the order of the satisfaction of different levels of needs, realizing the goal of the right to health should be the foundation and prerequisite for the establishment of environmental rights. The impacts of the environment on human health are very definite in the legal sense, that is, it is harmful or harmless to health, while the goal of the right to health is to ensure that human needs for a healthy and safe environment are met. From the perspective of the relationship between the right to health and environment rights, environment rights are established under the premise of realizing the goal of the right to health, that is, to ensure the satisfaction of human needs for a healthy and safe environment. Therefore, a healthy and safe environment is the foundation for the establishment of environmental rights. In other words, having a healthy and safe environment is the minimum prerequisite for satisfying the spiritual needs of people for the environment. On this basis, the better the environmental conditions are, the better the spiritual environmental needs of people are met. Therefore, the boundary of environmental rights should be the improvement of environmental quality to a certain extent on the basis of health and harmlessness. Of course, in a legal sense, such interest demands for environmental quality improvement are not unlimited. This concerns the determination of the boundary of environmental rights, as analyzed below.

 

Taking the right to health as the premise for the establishment of environmental rights and distinguishing the boundary between environmental rights and a healthy and safe environment is of great significance for focusing on the protection of the right to health and highlighting the value of the establishment of environmental rights. In the traditional theory of civil law, “the right to health should include not only organic health, but also functional health; not just physical health, but mental health.”¹⁵ Among them, mental health seems to be related to people’s spiritual needs for the environment. From this point of view, it is not improper to include the spiritual needs for the environment within the scope of protection of the right to health. However, mental health and spiritual needs are two very different issues. The essence of health lies in the maintenance and perfection of human physiological function. The normal physiological function is the basis for maintaining mental health, and mental health is the extension of physiological function. In essence, both mental health and physical health are basic living needs. People’s spiritual needs for the environment are the spiritual feedback and interaction of people with the external environment, which is a kind of spiritual activity with relative independence and beyond basic living needs. This kind of spiritual experience is very different from the focus on environmental health. Therefore, if the spiritual needs of people for the environment are included in the scope of protection of the right to health, it will easily lead to confusion about the core content of the right to health, and make the spiritual needs of people for the environment not special and the shaping of corresponding rights unnecessary. From this perspective, the basic positioning of the right to health as the premise for the determination of environmental rights is conducive to putting the focus of the protection of the right to health on the maintenance and improvement of physiological functions. Also, it clarifies the independence of people’s spiritual needs for the environment as legal interest demands and takes this as the basis for the formation of environmental rights. Viewed from the relationship between the two, the right to health is the protection of the bottom line of a healthy and safe environment, while environmental rights are the response to the demand for a “more beautiful environment” on the basis of a healthy and safe environment. They form a “relay” and work together to build a complete and hierarchical pedigree of environmental rights in the context of the construction of an ecological civilization in China.

 

 

 

It is relatively easy to determine the basic positioning of the boundary of environmental rights, as long as the relationship between the right to health and environmental rights is made clear, while it is difficult to determine the boundary of environmental rights. With the progress of society and raising of the civilizational level, the legal protection of people’s interest demands also present an expanding trend. The development of human demands for environmental interests from the demand for a healthy and safe environment to spiritual needs fits with the development goal of laws, thus it has a sound legal basis undoubtedly. However, as a kind of social adjustment mechanism, the protection of interest demands can only be based on the social reality at a specific stage, and it must take the general social psychological expectations as the reference. Therefore, there is a limit to the spiritual needs of people for the environment that can be included in the scope of legal protection, which means that environmental quality can only be improved on the basis of a healthy and safe environment, and the upper limit of improvement determines the protection limit of environmental rights for the spiritual needs of people for the environment, that is, the boundary of environmental rights.

 

From a historical point of view, people do not have strong feelings for the environment at first. When people are in the original ecological environment, they do not have definite feelings about the support of the environment for their survival and development and the satisfaction of psychological experience, instead they take it for granted. However, with the industrialization of human society and the continuous expansion in the breadth and depth of the transformation of nature by social and production activities, the original ecological environment no longer exists, and environmental pollution and ecological destruction continue to increase, which has resulted in the decline in the quality of the environment. It is a gradual process of decline, not a sudden drop overnight from the original ecology to a state that endangers health and life. At first, the decline in environmental quality is mainly manifested in the lower degree of satisfaction of people’s spiritual needs for the environment. At this stage, although people begin to be aware of the degradation of environmental quality, they tolerate such degradation to a certain extent, because it is regarded as an inevitable price for social development and progress, and an indispensable prerequisite for meeting people’s rights to survival and development. In other words, people assume a corresponding obligation to tolerate a certain degree of environmental degradation. However, there is a limit to the obligation for tolerance. In the early stage of the development of environment-related legislation, the bottom line of the obligation for tolerance is that the degradation of environmental quality will not break the critical level of health and harmlessness. Once the bottom line of a healthy and safe environment is broken, it means that the environment is harmful to health, which will lead to the launching of legal remedies for the right to health. Thus, in the context of the right to health, a healthy and safe environment is the bottom line of the obligation for tolerance. With the expansion of the demand for environmental interests from the material level to the spiritual level, people’s spiritual needs for “a comfortable and beautiful environment” have been included in the scope of legal protection to a certain extent and become the basis for the formation of environmental rights. The bottom line of legal protection for such interest demands is whether the environment is “more beautiful,” which means the improvement of environmental quality on the basis of health and harmlessness. Therefore, in the context of environmental rights, the bottom line of the obligation for tolerance must be raised on the basis of a healthy and safe environment, and the degree to which it is raised is the critical level for the environmental quality required by environmental rights. In other words, the bottom line of the obligation for tolerance in the context of environmental rights is the boundary for environmental rights. In the legal sense, environmental rights express the rights claim that the decline of environmental quality should not break the bottom line of the obligation for tolerance, and the bottom line will no longer be determined by whether the environment is harmful to health, but by the influence on people’s spiritual interests. Therefore, the tolerance obligation is an important factor that should be considered when determining the protection limit of environmental rights, namely, the boundary of rights.

 

 

The obligation for tolerance is an inherent category in the field of law. Viewed from its origin, the obligation for tolerance comes from the relevant provisions about the infringement of immeasurable objects in the German civil law, that is, the victim shall bear the obligation to tolerate the “insignificant impairment” caused by the land use behavior of the adjacent real estate owner.¹⁶ In the theory and practice of traditional civil law, the establishment of the tolerance obligation for tolerance is mainly to solve the conflicts of interest caused by “insignificant impairment” in the adjacent relationship, with the basic value orientation to ensure the maximum benefits of one party’s real estate utilization at the cost of limiting the rights and interests of the other adjacent party in the adjacent relationship. Thus, in the civil law context, “The essence of the obligation to tolerate is a restriction of rights,”¹⁷, which is the product of maximizing the benefits of civil law. However, defining the value of the obligation to tolerate as the goal of maximizing benefits through the “restriction of rights” does not conform to the legal logic and requirement of taking it as the reference for environmental rights because environmental rights are essentially an “expansion of rights” rather than a “restriction of rights”. Additionally, the spiritual needs of people for “a comfortable and beautiful environment” reflected by in environmental rights are highly non-utilitarian, which are not the product of benefit the maximization of benefit. Therefore, if the obligation to tolerate is introduced into the context of environmental rights from the perspective of traditional civil law theory and taken as the reference of the limit of rights, it is necessary to promote the transformation of its value and re-position it.

 

Based on the basic positioning of environmental rights, the tolerance obligation as the reference of environmental rights should take inclusiveness and limitation as its basic value orientation. Firstly, the establishment of the tolerance obligation in the context of environmental rights means the recognition and acceptance of environmental changes to a certain extent and reflects the inclusiveness of social and economic development. Therefore, the tolerance obligation in the context of environmental rights is not a tool for the “restriction of rights,” but a product of the “expansion” of environmental rights. However, the inclusiveness of the obligation to tolerate also determines that the expansion of environmental rights cannot be separated from the restriction of social development at a specific stage. The claim of environmental rights should contain the economic needs for economic development certain extent. Next, there is a limit to the inclusiveness of the obligation to tolerate. In essence, the obligation to tolerate with an inclusive orientation is a benefit measurement mechanism, which mainly measures the correlation between the continuous decline of environmental quality and the limit of people’s adaptation to the change, to determine the protection limits for people’s spiritual needs for the environment. As for how to determine the limit of the obligation to tolerate, it involves theoretical analysis, judicial discretion, and other aspects at different levels. However, its basic position is fixed. “The needs for a better life in the new era are people-centered needs.”¹⁸ As a result, the limit of the obligation to tolerate must be determined based on people’s environmental perception, rather than the maximization of benefits. The analysis and confirmation of the obligation to tolerate inclusiveness and limitation as the basic orientation provide strong structural support for the establishment of environmental rights oriented toward the “needs for a better life.” This not only serves as a reference for the determination of the boundaries for environmental rights but also provides a just, reasonable, important basis for the development of independent environmental rights in theory.

 

 

According to the basic orientation, the boundary of environmental rights should be defined as a certain degree of increase in the bottom line of the obligation for tolerance on the basis of a healthy and safe environment, and the degree of the increase determines the specific boundary of environmental rights. Therefore, to what extent the bottom line of the tolerance obligation is raised is a question that needs further clarification. In terms of the choice of research approach, it is relatively difficult to demonstrate it if the degree of increase in the bottom line of tolerance obligation is directly defined theoretically. But it may be more feasible if we change our thought and discuss the establishment of the bottom line of the tolerance obligation from the perspective of the impacts caused by the decline of environmental quality.

 

Original ecology is an ideal state of the environment that people yearn for. The current environment is degraded gradually from the original ecology under the influence of human activities. That is, the quality of the environment continues to decline. When people begin to feel the degradation of environmental quality and its effects, it means the obligation for tolerance is in effect. Because although the original ecological environment has been damaged, people cannot put forward the demand for rights protection but have to tolerate such damage to a certain extent. That is to say, they need to bear a corresponding obligation to tolerate. Under what circumstances will the mental distress brought about by the degradation of environmental quality reach the bottom line of the obligation for tolerance? This can be analyzed from the impacts caused by the degradation of the quality of the environment. When the environment is changed because of human factors, the change starts small and gradually becomes bigger. Similarly, the influence of the change in environmental conditions on people’s psychological perception is also a gradual process. When the environment starts to change slightly, generally people have no awareness of the influence of this change on their psychology, or they can fully tolerate it although they are aware of it to some extent, which reflects the inclusive orientation of the obligation to tolerate, and is also an important social-cognitive basis for the existence of the obligation to tolerate. But during the continuous decline of environmental quality, when the change in environmental conditions is enough to distress people at the spiritual level, it means that the environmental quality has changed significantly. Although this degree of change may not produce adverse effects on the health of people, it exerts substantial influence, that is of turning-point significance, on the spiritual demand of people for the environment, leading to the degree of degradation being generally deemed “intolerable” by society, and corresponding right claims are put forward to prevent the environmental degradation from breaking the bottom line of tolerance obligation.

 

Therefore, the “significant change” of environmental conditions caused by the decline of environmental quality should be regarded as the bottom line of the tolerance obligation, that is, the boundary of environmental rights. The “significant change” of environmental conditions is the legal expression of the demand for a “more beautiful environment” in the “needs for a better life.”It is reasonable to take “significant change” as the legal judgment criterion for “a more beautiful environment” and as the basis for the determination of the boundary of environmental rights both in theory and in practice, because “beautiful” or “more beautiful” is mainly a subjective feeling pertaining to the environment, while “change” is an objective description of environmental state. It is difficult to quantify subjective feelings, while objective evaluation can be supported with technical assessments. To determine whether there is a “change”, it is only necessary to compare the original environmental condition with the technical indicator of the environment as the grounds for raising the claims of environmental rights. Certainly, “significant” in “significant change” is also uncertain, which involves subjective judgment. To judge whether the “change” of environmental conditions is “significant” or not, and take it as the boundary of environmental rights protection in the legal sense, the universal need of people for getting spiritual satisfaction from the environment should be taken into account in a specific stage of social development. Meanwhile, it also depends on the weighing of environmental protection and economic development legally, to a large extent. The judgment criteria are not set in stone. Therefore, whether the “change” of environmental conditions is “significant” enough to reach the bottom line of the tolerance obligation should not be stipulated in legislation, but should be taken as a proposition of judicial discretion. The judge can judge whether there is a “significant change” in the environment based on a comprehensive consideration of the above relevant factors, so as to clarify the boundary of environmental rights protection in a specific stage of social development, and form a demonstration effect of environmental rights identification and protection based on judicial discretion. This practical approach for the confirmation of the boundary of environmental rights fits in with the specialization trend of environmental justice in China in recent years. The juridical practice of the protection of environmental rights with the obligation to tolerate as a reference in China will be further discussed below based on specific cases.

 

 

 

According to the development course of judicial practice concerning environmental factors in China, the focus of environmental tort cases has always been on property loss and personal injury resulting from environmental factors, and the judicial remedies of environmental interest demands based on personal injury are mainly based on the confirmation and protection of the right to health. Environmental rights, oriented toward the “needs for a better life” and based on the demand for the environment at the spiritual level, have not been involved in judicial practice. But this situation has begun to change with the rapid development of environmental justice specialization in China over the years.

 

The Supreme People’s Court issued “Li Jin v. China Resources Land (Chongqing) Limited (dispute over liability for environmental pollution)” as the Guiding Case No. 128¹⁹ on December 26, 2019, which is of great significance for the new progress in the judicial practice of environmental rights oriented towards the “needs for a better life.” .In this case, the defendant installed an LED screen for advertising on the outer wall of the MixC Shopping Mall facing the plaintiff’s dwelling for advertising. The LED advertising billboard, put into operation since its installation in 2014, presented promotional materials and video advertising, among others, every day and produced bright light directly shining into the plaintiff’s flat, affecting his normal life. The court ordered the defendant to stop the infringement of light pollution on the plaintiff and put forward restrictive requirements for the running time and brightness of the LED screen. The Supreme People’s Court pointed out in the key points of the judgment of the case that the people’s court shall determine light pollution damage, taking into account national standards, local standards, industry standards, and judge whether it interferes with the normal life, work, and study of others and whether it is beyond the tolerance of the public. The tolerance of the public may be measured based on the reaction of the surrounding residents, the actual perception of the scene, and expert opinions, among other things.

 

This case has provided strong support in judicial practice for determining the boundary of environmental rights with the obligation to tolerate as the reference. Firstly, the judgment of the people’s court on the fact of light pollution damage is not based on the actual damage done to health by the light pollution, but on the infringement of “environmental rights and interests,” with the “normal life and rest of the plaintiff and other residents” as the main content. This reflects that the judicial protection of “environmental rights and interests” begins to is being extended from “a healthy and safe environment” to “a comfortable and beautiful environment,”, which is completely consistent with the orientation of environmental rights. Secondly, the key points of the judgment pointed out that in addition to technical indicators, the judgment of light pollution damage should also take “public tolerance” into comprehensive consideration, and put forward several grounds for the judgment of public tolerance. These key points of the judgment have fully verified the theoretical basis for the determination of the boundary of environmental rights with the obligation to tolerate as the reference. Third, the court ordered the defendant to stop the infringement on the plaintiff’s rights and put forward restrictive requirements for the running time and brightness of the LED screen, rather than banning the use of the LED screen, which reflects the inclusiveness of the obligation to tolerate and the judicial rationality of the limit of environmental rights protection to a large extent.

 

 

Guiding Case No. 128 of the Supreme People’s Court has great significance as a demonstration case for the protection of environmental rights oriented toward the “needs for a better life.” With the continuous promotion of ecological civilization construction and the continuous enhancement of public awareness of rights in China, it will be more and more common to propose demands for environmental rights, and the judicial practice related to the identification and confirmation of environmental rights will become an important aspect of the development of environmental judicial specialization. Such judicial practices should be carried out based on detailed judgment rules. However, the key to determining the judgment rules is to know which relevant factors to consider to determine the bottom line of tolerance obligation and take it as the basic reference for the identification and protection of environmental rights. In this regard, it is necessary to carry out further analysis and discussion on the basis of existing practice and provide necessary theoretical support for the promotion of judicial identification and protection of environmental rights.

 

The premise that needs to be clarified is that from the perspective of the system approach, it is difficult to form a legislative basis for the establishment of judgment rules for such judicial practices in a short period, but requires the accumulation of judicial discretion on individual cases and the formation of demonstration effects. Undoubtedly, it is necessary and legitimate to establish environmental rights oriented towards the “needs for a better life.”. But the foundation of the establishment of rights determines that the effect of the rights is “to be determined” in a sense. That is to say, it is “not clear whether the rights are protected or not”. Since the basic situations faced by courts are different in different cases, judicial discretion should be carried out based on relevant legal provisions in judicial practice according to the specific circumstances of different cases. Viewed from the promotion of relevant legislative improvement, “the ‘measurement of legal interests in individual cases’ is a method of legal renewal which helps solve the contradictions among regulations for which the law does not specify resolution rules, and defines the respective application areas for the regulations with the overlapping scope of application, so as to concretize the rights (such as general personality rights) of which the protection scope is still unclear.”²⁰ Therefore, on the protection of environmental rights oriented towards the “needs for a better life,”, continuously “renewing” and accumulating judgment rules of the judicial protection for environmental rights through the judicial discretion of individual cases is a necessary way to promote the interaction between judicature and legislation and gradually promote the improvement of relevant legislation. For judicial discretion, “Every judgment has a generative power. It begets in its image… It is charged with vital power. It is the source from which new principles or norms may spring to shape sentences thereafter.”²¹ The “generative power” and “begetting” function of judicial practice is an important help for the transformation of environmental rights from the “effect to be determined” to “normal.”

 

Specifically, the characteristics of environmental rights determine that the scope of their effectiveness cannot be generalized. The following factors should be fully considered in the judicial discretion of the identification and protection of environmental rights in individual cases. 

 

First, the protection of reasonable expectations should be given priority. Whether the spiritual intrusion brought about by the degradation of environmental quality is a reasonable expectation is an important factor to be considered in the judicial discretion of environmental rights protection in individual cases. If, based on the arrangement of relevant planning, the relevant subjects in the region are informed beforehand or should be informed of the behaviors that lead to the decline of environmental quality, or the above behaviors already exist, the relevant subjects should bear a greater obligation to tolerate the decline of environmental quality, and the protection of environmental rights is at a low level accordingly. On the contrary, if the behaviors leading to the degradation of environmental quality occur later and the relevant subjects in the region have no reasonable expectation of the degradation of environmental quality, the relevant subjects feel less obligation to tolerate the degradation of environmental quality, and the protection of environmental rights is at a high level accordingly. The preferential protection of reasonable expectations in the judicial discretion of environmental rights protection reflects the legal stability and the legal spirit of legitimate expectation in essence.

 

Secondly, take space and time factors into should be taken into full consideration. For the legal confirmation of the degree of environmental influence on people, the influence of time and space factors should be considered. On the one hand, there is no consistent legal standard for environmental quality in different regions and spaces. The legal requirements for the control of environmental quality in different regions and spaces mainly depend on the positioning of environmental function in the region and space. Different regions have different environmental functions, and their requirements for environmental quality are also different, which is based on the objective existence of relevant legislation. Therefore, in the judicial discretion of individual cases, for the demand for environmental rights from relevant subjects in regions with high environmental quality standards, the environmental rights should be protected at a high level and the relevant subjects should bear less obligation to tolerate, while for relevant subjects in regions with low environmental quality standards, they should bear greater obligation to tolerate and the environmental rights will be protected at a low level accordingly. On the other hand, people’s mental perception of the environment is also closely related to time. The living habits and daily schedule of people are the basis for them to experience the external environment at the spiritual level, which determines that they have different needs for the external environment in different periods. For example, people have a completely different need for light and sound at different times and for different activities such as working, leisure, and rest, and their feelings are different. Therefore, in the judicial discretion of individual cases about environmental rights protection, the period in which the harmful behavior occurs and people’s perception needs for the external environment in that period should be taken into full consideration and regarded as an important reference for determining the limit of environmental rights protection. The restrictive requirements for the running time and brightness of the defendant’s LED screen in Guiding Case No. 128 issued by the Supreme People’s Court fully embody the judgment idea of taking time into consideration for determining the limit of environmental rights protection.

 

Thirdly, treat the inertia of people’s environment perception objectively. In the process of interaction between people and the environment, people’s environment perception, as a kind of spiritual activity, has a strong characteristic of inertia, which is often reflected in a thinking set thinking. In this sense, people tend to take for granted the original state of the environment they are in. As mentioned above, the bottom line of the obligation to tolerate as the reference of environmental rights is a “significant change” in the environment, which contains obvious comparative requirements, that is, the comparison between the consequent environment and the original environment and the consequent environment.. Whether people feel the “significant change” in the environment is largely related to their perception of the original environment. Based on the inertia of people’s environment perception of the environment, the better the original environment is, the more sensitive they are to the decline of environmental quality; conversely, the worse the original environment is, the less sensitive they are to the decline of environmental quality. In other words, the better the original environmental quality is, the less the obligation they bear to tolerate the decline of environmental quality; conversely, the poor the original environmental quality is, the greater the obligation they bear to tolerate the decline of environmental quality. According to the development trend, with the continuous advancement in constructing an ecological civilization and the overall improvement of environmental quality in China, the foundation for the formation of the public’s environment perception will be improved generally. As a result, the public’s obligation to tolerate will continue to be reduced, and the protection of environmental rights will continue to improve.

 

 

With economic development and social progress, the protection of human rights is improving in China. The National Human Rights Action Plan of China (2021-2025)introduces “environmental rights” in a separate chapter and takes the “demand for a beautiful environment” as a core requirement of strengthening the human rights protection of “environmental rights,” which resonates and fits in with the people’s growing “needs for a better life” in the transformation of the principal contradiction facing Chinese society. It provides an important opportunity for improving the human rights protection of environmental rights in China. In the context of vigorous promotion of ecological civilization construction in China, constantly improving the satisfaction of people’s needs for “a beautiful environment” is an important aspect to promote the transformation and expansion of people’s needs from material and cultural needs to the needs for a better life. It is the right time to shape environmental rights oriented toward the “needs for a better life.” At the theoretical level, environmental rights oriented toward the “needs for a better life” should be defined as the legal response to ensure that the environment meets people’s right to spiritual needs to a certain extent on the basis of the right to health, and the bottom line of the obligation to tolerate is taken as a reference for the limit of environmental rights protection. In judicial practice, attention should be paid to the identification and protection of environmental rights through the judicial discretion of individual cases, and a demonstration judgment rule system should be gradually established for the identification and protection of environmental rights through the continuous exploration and summarization of considerations for judicial discretion. The in-depth implementation of the theoretical research on environmental rights oriented towards the “needs for a better life” and the continuous advancement of judicial practice will provide indispensable theoretical and practical support for the continuous improvement of human rights in the protection of environmental rights in China.

 

(Translated by SHEN Jinjun)

 

* ZHANG Lu ( 张璐 ), Professor and Doctoral Supervisor of the School of Economic Law, East China University of Political Science and Law.

 

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