Carbon sink subscription is an innovative integration of ecological environmental justice and ecological restoration

Climate change is a hot issue of global concern and one of the three major global environmental crises alongside environmental pollution and biodiversity loss. China adheres to the strictest system and the strictest rule of law to protect the ecological environment, strengthens the adjudication of ecological environment resources, coordinates the response to climate change and ecological environment restoration, explores ecological restorative justice, carries out alternative restoration, and actively responds to climate change risks and challenges.

Ecological restorative justice emphasizes that while punishing environmental crimes, environmental infringers and environmental victims or their representatives can voluntarily reach an agreement to restore the ecological environment and complete the restoration of the damaged ecological environment, thereby easing the tension between humans and nature. The destruction of forest resources leads to the weakening of forest carbon sequestration capacity and causes the loss of carbon sinks, and the loss of carbon sinks is part of the damage to the ecological environment. According to the Provisions on the Administration of Compensation for Ecological and Environmental Damages, when direct restoration measures for the ecological environment cannot be applied, alternative restoration measures may be adopted. With the formal establishment of the relevant judicial interpretations that the liability for compensation for damage to the forest ecological environment can be replaced by purchasing forestry carbon sinks, in recent years, some places in China have actively explored the alternative restoration responsibility by guiding the perpetrators of damage to take the initiative to subscribe to carbon sinks, that is, the model of "ecological justice + carbon sink compensation".

Since March 2020, Shunchang County, Nanping City, Fujian Province, the country's first case of alternative restoration of damaged ecological environment by means of the defendant's voluntary subscription of "carbon sinks", Shaanxi, Sichuan, Jiangxi, Guizhou, Zhejiang, and other countries have also followed suit, exploring the use of alternative ecological restoration by the defendant voluntarily subscribing to carbon sinks in the trial of ecological environmental damage, and accordingly mitigating and mitigating the punishment of the perpetrators. At present, "carbon sink subscription" cases are mainly concentrated in criminal cases or civil public interest litigation cases attached to criminal cases, and from a national perspective, the practice of applying "carbon sink subscription" as an alternative judicial restoration model in criminal cases varies from a national perspective.

First of all, from the perspective of applicable scenarios.Most of the cases are criminal deforestation cases, and there is a direct causal relationship between alternative restoration through carbon sink subscription. A small number of courts have explored the use of "carbon sinks" to compensate for the loss of the ecological value of wild animals caused by illegal hunting cases.

Secondly, from the perspective of carbon sink sources.Most of the cases subscribed to carbon sinks were forestry carbon sinks, and some cases subscribed to carbon sinks were marine carbon sinks. For example, the defendant of the Lianjiang Court in Fujian Province purchased the marine carbon sink of Lianjiang County from Fujian Strait Resources and Environment Trading Center Co., Ltd.

Again, from the point of view of the subscription route.There are mainly two categories, the first category is public welfare projects, such as the first national carbon sink subscription case in which the defendant subscribed to the carbon sink of the "One Yuan Carbon Sink" poverty alleviation public welfare project in Shunchang County; The second type is market-based trading, that is, purchasing through local carbon trading platforms.

Fourth, from the perspective of accounting methods and standards.At present, the standards and practices for accounting for the value of carbon sink losses vary in judicial practice. Including the forestry department's calculation, environmental exchange estimate, the court's own calculation, etc., the accounting methods are not uniform, and it is easy to produce the problem that the same species of forest and deforestation volume are similar, but the carbon sink value is very different.

Some of the practices of a hundred flowers blooming in various places do not conform to the provisions of the existing policies on substitution, and some do not meet the requirements of the judicial interpretation on the subscription of certified forestry carbon sinks; At the same time, the judicial interpretation only clarifies that the liability for compensation for damage to the forest ecological environment can be replaced by subscribing to carbon sinks, but the judicial application procedures are also unclear. How to use the carbon sink subscription money and how to truly reflect the carbon sink compensation are rarely described in the judgments that have taken effect. To a certain extent, these problems have affected the judicial credibility of carbon sink subscription. Generally speaking, the exploration of judicial practice of carbon sink subscription precedes theory and institutional provisions, and needs to be continuously improved in terms of theory and institutional construction. To this end, the author recommends:

First, we must adhere to the principle of prudent justice.Compared with other legal liabilities, carbon sink subscription has its particularity, carbon sink subscription needs to be actively applied for by the parties, and the court cannot directly adjudicate, and can only be guided in the trial process. The carbon sink subscription case should be in accordance with the in-situ "replanting and regreening", off-site "replanting and regreening", and the purchase of carbon sinks to reduce the restoration effect of the damaged ecological environment in order, so only when the in-situ "replanting and regreening" and off-site "replanting and regreening" consider economic and technical infeasible, can the purchase of carbon sinks to restore the ecology be applied. In cases of infringement of wildlife resources that do not involve the reduction of carbon sinks, as well as environmental pollution cases involving complex objects, if the subscription of carbon sinks is regarded as an alternative way of bearing the responsibility for ecological and environmental restoration, it still needs to be further explained in detail in terms of legal theory, and it is not appropriate to rashly expand the application without sufficient legal basis.

Second, we must adhere to the principle of scientific rigor.Carbon sink subscription involves natural science and law and other related knowledge, illegal hunting, illegal hunting of aquatic products and so on have nothing to do with the loss of carbon sink, and the biodiversity is more direct damage, what kind of ecological restoration measures can really play a corresponding role in restoration, in the legal interpretation to achieve logical self-consistency, need to be carefully considered, can not blindly expand the scope of application of forestry carbon sink. The judgment document is also a good textbook for law popularization, and the legal interpretation of the judgment part of the carbon sink subscription is strengthened in the judgment document, which not only disseminates the concept of ecological and environmental protection but also popularizes legal knowledge, so as to achieve the unity of carbon sink subscription in scientificity, legality and rationality.

Third, we must adhere to the principle of standardization and order.Judging from the current practice, overemphasizing judicial innovation may simplify it to "purchasing carbon sinks" in lieu of fines, which is contrary to "punishing evil and promoting good" and protecting the ecological environment, and cannot truly achieve the effect of ecological restoration and the original intention of implementing the dual carbon goals. At present, only the judicial interpretation of civil trials provides for the subscription of carbon sinks, and the subscription of carbon sinks is considered as a discretionary sentencing circumstance in both judgments, which requires the legal nature of "carbon sink subscription" at the legislative level or the issuance of judicial interpretations, and clearly stipulates the relationship between "carbon sink subscription" and plea of guilt and punishment, and criminal sentencing. The inability to restore the ecological environment is a precondition for the initiation of vicarious legal liability, and how to determine that the "ecological environment cannot be repaired" in judicial litigation of ecological environmental damage needs to be standardized. It is necessary to establish a complete set of systems from carbon sink trading, carbon sink compensation, and application of law to ensure the uniformity of judicial application and maintain the authority of judicial activities. It is necessary to clarify the fund supervision procedures to ensure that the subscription of carbon sink funds truly serves the carbon sink compensation, and to achieve a strong correlation between carbon sink subscription and the dual carbon goal.

Carbon sink subscription is an innovative integration of ecological and environmental justice and ecological restoration, which expands a new path of alternative ecological restoration, embodies the unique value of judicial assistance to the realization of the "dual carbon" goal, realizes the unity of social, legal and ecological effects, and contributes Chinese wisdom to the global judicial trial of climate change.

The author is a researcher at the "Research Center for Legal Guarantee for Quality Development" at the think tank of Zhejiang Province, and the executive director of the Research Center for Carbon Neutrality and Green Development at China Jiliang University