Abstract

People's knowledge about the functions of administrative procedure often focuses upon its control over public authority and the guarantee of lawful rights of respondent against the administration, and always neglects its roles of promoting rational decision-making and adjusting multiple values in the administrative procedure. Through a comprehensive survey of the basic legal theories, important nodes and system devices of administrative procedure for EIA, this article is expected to have a review upon the special administrative procedure of EIA in aspects of system and principle on one hand, and tries to obtain the knowledge about the multiple functions of administrative procedure in the modern social context on the other hand, especially focuses upon how to design administrative procedure so as to promote rational decision-making. At the same time, it's expected to offer a possible analytical framework for carrying out the research on the department administrative law. Apart from the preface, Apart from the preface there are five chapters in total in this article, taking the logical track of basic theories of EIA procedure, basic structure, core device（public participation）and judicial review.

Chapter One explores the basic legal theory of EIA system as a special administrative procedure system. Based upon the evolution of modern administrative procedure function and the specialty of environmental issues, the functional design of EIA procedure should covers the four elements of“right protection and power check”, “rational formation and efficiency promotion”, “multiple interests regulation and entire public interests guarantee”, “maintaining and respecting human dignity”. The legal validity of EIA procedure depends on whether it has the veto devices in the EIA laws, and the argument about whether to keep or abolish the veto devices actually involves many factors such as the balance between legal interests. The veto devices are practically reasonable and legally justifiable in the present context in our country, but it's still necessary to add some due process in the EIA procedure in order to prevent the veto devices from becoming the“maid of politics”.

Chapter Two focuses upon the basic structure of EIA procedure. The administrative procedure of EIA has a typical multistage structure, in which three procedure nodes are more special. Firstly, in the starting point design of EIA procedure, the idea of“early assessment”is conducive to ration-formation and right guarantee, but the clause of“post register”in the“Environmental Impact Assessment Law”of our country makes the above terms empty and weak in practice. Secondly, the filtering procedure is aimed at making sure that the EIA decision-making of large scale projects are under high density program control, while large amount of small projects can go through“mini-procedure”, but the realization of this aim depends upon preventing“procedure games”systematically. Thirdly, in the EIA report drafting and review procedures, the decision making structure, legitimacy of the organization and procedure design of the review should be focused.

Public participation is the core device in the environmental impact assessment procedure, and Chapter Three mainly discusses the concept, legal principle foundation, functional design of this core device. From the perspective of democracy, public participation is an institutional guarantee of“strengthened representatives”in EIA decision making. From the perspective of rule by law, public participation is the natural deduction of the procedure guarantee function of the basic rights, or the environmental right based upon participation. From perspective of efficiency, public participation is an inevitable way to increase the rationality of environmental decision making. The coexistence and focus of the above three legal principle foundations make it necessary to design the function of public participation as“risk communication”. Social consensus could be reached, reckless administration controlled and rational decision making promoted through risk communication. As to realization of the function of risk communication, design of public participation in environmental impact assessment procedure should internally be featured by two-way communication, value neutrality, difference acknowledgement, negotiation promoting, etc. while externally, environmental information publicity is an important foundation.

On the basis of Chapter Three, Chapter Four makes an“elaborate”research upon the procedure structure of EIA public participation. EIA public participation is a dynamic combination of many factors such as participative subject, opportunity and the way of participation. The relationship between the participants and the proposed project of EIA should not be confined to“subjective public rights”, it should be expanded to“interests”. The way of participation can be divided into nine kinds from Public Meeting to Public Vote, and it forms a kind of“ladder”or“spectrum”in the pattern of efficiency, but the efficiency is not the higher the better, and the way of participation should be chosen according to the circumstances. Participative subject, opportunity and the way of participation should be dynamically combined in both law making and individual cases, so as to get ideal effects.

Chapter Five talks about the relationship between EIA procedure and judicial review, and their limitations. As the final frontier of right protection, judicial review theoretically has two effects on EIA procedure:passively, it guarantees the legally established EIA procedure being put into practice, so as to realize right protection and promote rational decision making; positively it reconciles the values of each aspect in the EIA procedure, and establishes the field of risk communication. In fact, the realization of the above two functions of judicature faces great difficulties and limitations, as a result, in the EIA issue, which is political, technological and interest-concerning, the legitimacy and scientificalness of administrative organs' action relies more upon the upper lawmaking procedure and administration procedure. This is also the logical starting point of this article.