Reflections on the Ecological Inspection Model of Alternative Restoration of Carbon Sequestration

In the context of "dual carbon", the issue of carbon sinks has received unprecedented attention. Procuratorates are exploring the application of carbon sink compensation mechanisms in handling public interest litigation cases to restore the ecology. In practice, there are still problems of narrow work paths, few methods, and single practices, which need to be studied urgently.

1. Procuratorial carbon sink compensation mechanisms in public interest litigation and the basis for their application

Carbon sequestration refers to the process, activity or mechanism of absorbing carbon dioxide from the atmosphere through afforestation, vegetation restoration and other measures, thereby reducing the concentration of greenhouse gases in the atmosphere.

When offenders commit acts that destroy natural resources such as forests, the destruction of natural resources will result in a reduction in carbon dioxide absorption. In the course of handling public interest litigation cases involving the destruction of ecological and environmental resources, the procuratorate replaces the loss of ecological functions by asking the offender to subscribe to a certain amount of carbon sinks, which is called carbon sink alternative ecological restoration.

Articles 12, 13 and 15 of the Several Provisions of the Supreme People's Court on the Trial of Cases of Compensation for Ecological and Environmental Damage (for Trial Implementation), Article 20 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Procuratorial Public Interest Litigation Cases, and the Interpretation of Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Forest Resources issued by the Supreme People's Court Article 20 and other articles confirm that carbon sinks can replace the performance of liability for forest environmental damage, and carbon sink compensation has become an important civil litigation right in the field of ecological and environmental resources.

Second, the dilemma faced by the application of the carbon sink compensation mechanism

The "dual carbon" goal has been proposed for a short time, and the application of the carbon sink compensation mechanism by the procuratorate is still in the exploratory stage, and there are shortcomings and bottlenecks in the handling of cases, which are mainly reflected in:

(1) The type of case is limited. Most of these cases handled by procuratorial organs are limited to civil public interest litigation (including civil cases attached to criminal cases), and do not extend to administrative public interest litigation.

(2) The scope of the case is narrow. The scope of the case is limited to forest carbon sinks, and has not yet set foot in grasslands, wetlands, oceans, soils, karst and other ecosystems. The ability of forest trees to absorb carbon dioxide and release oxygen is well known, but the carbon sequestration effect of grasslands, wetlands, cultivated land, oceans, and rock formations is not clear.

(3) Case-handling mechanisms and related systems have not yet been improved. Although the procuratorate's application of the carbon sink compensation mechanism to the handling of public interest litigation cases is supported by judicial interpretations, it lacks specific operating procedures, such as the scope of the case, the conditions for application, the procedures for handling the case, and the connection with administrative and criminal cases.

(4) It is difficult to identify carbon sinks and lack of professional talents. Judicial appraisal has strict procedural requirements, and only appraisal opinions issued by institutions or personnel with judicial appraisal qualifications can be used as evidence. At present, in the process of handling cases, the procuratorial organs often encounter the problem of carbon sink accounting, and there is great controversy over whether the forensic appraisal institutions determined by the national qualification accreditation agency have not been clearly able to carry out carbon sink accounting, and the identification opinions issued by the relevant functional regulatory departments determined by the qualification accreditation agency have not been used as evidence. Therefore, the lack of forensic qualification and the lack of carbon sink accounting professionals are the biggest obstacles for procuratorial organs to carry out case-handling work.

(5) The management system for the use of carbon sink compensation funds has not yet been improved. In some areas, due to the lack of special accounts for public interest litigation funds, where should the compensation for the loss of carbon sinks obtained by the procuratorate through case handling be stored, how to manage, use and distribute, and how to use the compensation for the management and protection of ecological resources are issues that need to be solved urgently.

(6) There is a lack of legal clarity between the subscription of carbon sinks and the lenient treatment of actors. The responsibility of ecological restoration aims to remedy the damage caused by the crime of destroying environmental resources, and when it is linked to criminal liability, it becomes the internal motivation to urge the perpetrator to perform the restoration responsibility in a timely manner. Therefore, in practice, the perpetrator's restoration of the ecological environment is generally regarded as having a good attitude of admitting guilt (repentance) and little personal danger, and then the punishment is mitigated in terms of criminal discretion. In the context of "dual carbon", some courts have extended the responsibility for ecological environment restoration from measures such as replanting and reforestation to carbon sink compensation, and used this as the basis for minor punishment of perpetrators, but the criminal law basis lacks clarity.

3. Improve the application path of the carbon sink compensation mechanism

Grasp the overall goal and establish the concept of green and low-carbon development. Accurately grasp the overall requirements for the realization of the "double carbon" goal, improve the ideological understanding of the application of the carbon sink compensation mechanism to procuratorial public interest litigation cases, give full play to the procuratorial function, establish a judicial carbon sink research and practice base, and provide a platform for theoretical research, case handling practice, and procuratorial training.

Improve legislation and related rules and regulations, and improve procedural mechanisms. It is suggested that the carbon sink compensation mechanism should be written into the Energy Conservation Law, the Electricity Law, the Coal Law, the Renewable Energy Law, the Circular Economy Promotion Law, etc., so as to provide sufficient legal support for the procuratorial organs to apply the carbon sink compensation mechanism in handling public interest litigation cases. Formulate and improve relevant rules and regulations, refine the scope and conditions of application of carbon sink compensation mechanisms in procuratorial public interest litigation cases, and guide procuratorial organs to gradually expand from forest carbon sequestration to marine, grassland, wetland, karst and other fields, and from civil public interest litigation to administrative public interest litigation. Standardize case-handling procedures and mechanisms, clarifying that "carbon sink + procuratorate" work is carried out through methods such as pre-trial procuratorial suggestions, consultations, judicial confirmations, and prosecutions, and the concept of restorative justice is practiced.

Strengthen cooperation and cooperation, solve problems, and get out of difficulties. Procuratorial organs should strengthen coordination and cooperation with courts, land, forestry, and other units, improve mechanisms such as appraisal and assessment, and transfer of leads, to resolve the problem of difficulty in appraisal. It is suggested that the national qualification accreditation agency should increase the qualification of carbon sink accounting when reviewing and identifying judicial appraisal institutions, so as to make judicial appraisal more standardized. It is suggested that the carbon sink identification opinions issued by the natural resource management department of the location of the carbon sink afforestation project that has been reviewed and approved by a nationally recognized certification center can be used as evidence if approved by the parties.

Accelerate the improvement of the system for the management and use of carbon sink compensation funds in public interest litigation cases. Accelerate the establishment of a relatively complete system for the operation of carbon sink compensation fund accounts in public interest litigation cases, and jointly establish special accounts with courts, finance, forestry, natural resources, agriculture and other units, clarify the scope of use and distribution methods, and approve and allocate in accordance with procedures, so as to solve the problem of disorderly management of carbon sink funds.

Establish operational norms for criminal justice carbon sink compensation mechanisms. Based on judicial practice, establish a responsibility mechanism for signing a letter of commitment, a working mechanism for compensation for resource and ecological restoration, a mechanism for assessing and appraising carbon sink losses, and a mechanism for accounting for the value of carbon sinks, and further standardize the method, scope, and verification methods of compensation.

The introduction of "carbon ticket" management measures. The "carbon ticket" is used as the certificate of the right to benefit from carbon emission reduction of forest land and trees, and the issuance, registration, circulation, pledge, and offset of forestry carbon tickets are effectively managed and supervised within a certain administrative area, so as to promote the establishment and improvement of the value realization mechanism of green ecological forest products, and open up new ways of ecological priority and green development.

The author is Secretary of the Party Leadership Group and Procurator General of the People's Procuratorate of Qiandongnan Prefecture, Guizhou Province