Review methods applicable to alternative performance methods for subscribing to forestry carbon sinks
In order to properly adjudicate civil disputes over forest resources and protect the ecological environment and the legitimate rights and interests of the parties in accordance with the law, the Supreme People's Court formulated and promulgated the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Forest Resources (hereinafter referred to as the "Interpretation of Forest Resources Disputes"), which came into force on June 15, 2022. Article 20 of the Interpretation stipulates that if a party requests to replace the performance of the liability for compensation for damage to the forest ecological environment by subscribing to a certified forestry carbon sink, the people's court may comprehensively consider the opinions of the parties, the reasonableness of different liability methods and other factors, and grant it in accordance with law. The Understanding and Application of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Forest Resources also prudently restricts the application of alternative performance methods for subscribing to forestry carbon sinks, and clarifies the three rules of "request of the parties", "subscription of certified forestry carbon sinks" and "reasonableness of application". After the issuance of the interpretation, the practice of subscribing to forestry carbon sinks has become richer and more standardized, but there are still some problems in the current practice, such as the priority of restoration methods, the lack of scientific basis for subscription, and the non-standard forestry carbon sinks subscribed.
Based on the value objectives, functional positioning and practical problems of subscribing to forestry carbon sequestration substitution methods, and based on its substitution and public welfare characteristics, the author summarizes and summarizes the "three-step and six-element method" to review the application scope, initiation conditions, and operation process of subscribing forestry carbon sequestration alternative fulfillment methods.
Step 1: "Ecological function texture + agreement of all parties" review to determine whether to initiate
Ecological functional texture review. In the trial of cases of ecological and environmental damage, the concept of restoration should be adhered to, and the "restoration of the original state" should be pursued to the greatest extent possible, so as to avoid one-off punishment. Specifically, in terms of the application of alternative performance methods for subscribing to forestry carbon sinks, the first step should be to consider whether the case falls within the scope of application of subscribing to forestry carbon sinks. The principle of homogeneous and alternative application should be followed, and heterogeneous and substituted application should be exceptional. Therefore, the "forestry carbon sink" is used to repair the damage to the ecological environment of forest resources, and advocate the restoration of the damaged ecological environment with the same ecological service function.
For cases of different types of ecological and environmental service functions, it is necessary to prudently apply the alternative performance method of subscribing to forestry carbon sinks, so as to avoid subscribing to forestry carbon sinks to avoid the management of special funds for ecological and environmental damage. The ecological environment is a complex system, and all functions have their own functions. The subscription of forestry carbon sinks with damages for other ecological and environmental service functions can only belong to the management and use of ecological and environmental damage compensation, and does not belong to the substitution of subscribing to forestry carbon sinks.
The "party request" element is the consensual review of the parties. Article 20 of the Interpretation of Forest Resources Disputes clearly states that the application of "request of the parties" is one of the conditions for initiating the subscription of forestry carbon sinks, and in essence, the subscription of forestry carbon sinks is a transaction behavior, and the principle of autonomy of will should be respected. However, in practice, the infringer may not be fully aware of the provisions of the law and judicial interpretations, so it may be explained whether to choose the subscription of forestry carbon sinks as an alternative performance method for compensation for ecological and environmental damages. In the author's opinion, if the environmental infringer takes the initiative to request and is unable to perform, and the infringer is willing to make a commitment after interpretation, and the public interest litigation plaintiff has no objection, the next element can be considered. When the above two elements are met at the same time, the process of subscribing to forestry carbon sinks will be initiated.
Step 2: "Substitution Priority + Carbon Sink Standardization" review to determine whether it is applicable
Rationality review of subordination. When considering the priority of the application of the liability method for environmental damage, the first consideration should be whether the damaged ecological environment can be restored, and the alternative performance method should be applied only if it cannot be repaired. For cases where in-situ remediation can be adopted, alternative performance methods can only be applied if the environmental infringer is unwilling to perform or lacks the ability to perform. Some special ecological function zones, such as water conservation, windbreak and sand fixation, should be restored in situ in principle, and if the parties insist on subscribing to forestry carbon sinks for restoration, they should bear the burden of proof that the in-situ restoration cannot be carried out.
Normative review of carbon sinks. If the party requests to subscribe to forestry carbon sinks, it shall subscribe to certified forestry carbon sinks to ensure that the voluntary emission reduction projects and emission reductions traded have been verified by authorized institutions and are regulated carbon sinks in the unified market. Under the Clean Development Mechanism, the subject matter of the voluntary carbon emission market is certified emission reductions, that is, the greenhouse gas emission reductions that are quantitatively verified and registered for forestry carbon sink projects. Therefore, it is also necessary to confirm that the subscription channels are smooth and the subscription target is standardized.
Only when the alternative performance method of subscribing to forestry carbon sinks is recognized by all parties and the two conditions of ensuring that the approved standard carbon sinks can be subscribed to be met at the same time, can the alternative performance methods applicable to the subscription of forestry carbon sinks be determined.
Step 3: "Quantitative Basis Review and Subscription + Closed-loop Supervision" to ensure that the performance is in place
How to determine the amount of subscribed forestry carbon sinks is a difficult problem. The author believes that from the perspective of the quantification period, the principle of pre-litigation quantification should be taken, and the quantification during litigation should be the exception, so as to prevent the extension of the trial period and the delay of the restoration of the damaged ecological environment due to the appraisal and assessment procedures. In the case of small targets, expert opinions and other evaluation methods can also be adopted to overcome the dilemma of high appraisal costs. Where possible, the loss should be comprehensively determined, and the loss of ecological and environmental service functions during the period should be entrusted together with other appraisals involved in the case, such as the damage to ecological and environmental elements such as forests, soils, and water bodies, so as to improve the efficiency of assessment and achieve environmental justice. The principle of guiding the parties to subscribe should be followed, with the exception of paying the subscription fee. Because the price of carbon emission trading will fluctuate, there may be insufficient subscription or the remaining subscription must be returned during the period from the payment of the subscription fee to the completion of the subscription, so the subscription of forestry carbon sinks should be completed as far as possible during the trial of the case. In addition, special attention should be paid to preventing environmental infringers from simply substituting monetary compensation for their restoration obligations, which is no different from the payment of compensation for ecological and environmental damages. In addition, it is also necessary to ensure that the subscribed forestry carbon sinks are written off in accordance with the law to avoid falling short of the restoration target.
The value quantification is used to ensure that the damaged ecological environment function is restored to the function, quality and value before the damage, and the closed-loop supervision of the whole process is used to prevent the dilution of the restoration effect caused by the illegal use of the purchased forestry carbon sink, and the two can ensure that the restoration is in place.
In short, the subscription of forestry carbon sequestration, as a young alternative performance method of compensation for ecological and environmental damage, has its unique value in recovering the loss of ecological environmental service functions, enriching the performance mode of ecological environmental damage liability, and achieving the "double carbon" goal of judicial services. Therefore, it is necessary to give full play to its due value function to a greater extent, so as to strive to meet the people's growing needs for a beautiful ecological environment.
(Author's Affiliation: Intermediate People's Court of Quzhou City, Zhejiang Province)
