环境民事公益诉讼中预防性责任适用规则的优化路径

"防患于未然"是环境民事公益诉讼预防性责任应对环境风险的价值诉求。预防性责任是在有危害之虞或损害已经发生且侵害处于持续状态时采取的积极预防性的救济措施，面向的是抽象不确定性。预防性责任的具体表现形式主要以停止侵害、排除妨碍、消除危险为主。但在环境司法实践中，预防性责任呈现出环境侵害标准不明和责任形式单调等问题，掣肘环境司法良序发展。鉴于此，需对环境民事公益诉讼预防性责任适用规则进行系统性优化，在遵循预防原则的前提下，明晰环境侵害标准，增设责任承担方式，建构举证责任转换规则以及设置预防性执行措施等，进而发挥预防性责任的前瞻性预防功能，以促进环境民事公益诉讼满足实践需求。     

我国环境公益诉讼制度之实证分析

在我国，作为救济生态环境损害的司法制度之一，环境公益诉讼在实务中发挥着越来越重要的作用。立足于该制度整体框架和立法沿革的认知，采用实证分析的研究方法针对环境公益诉讼制度的现实困境与完善路径进行专门探讨具有特殊性和必要性。当前造成环境公益诉讼司法救济效果不佳的原因主要有环境民事公益诉讼中“公益起诉人”的职能定位不清、环境行政公益诉讼中检察权的界限模糊，以及制度的具体规则存在不足等。通过成因分析，继而提出完善环境公益诉讼制度的相关建议，即应当坚持法律监督基本职能不变，明确公益起诉人的职能系“履行职责”;重视环境行政公益诉讼的客观诉讼属性，加强内外制度衔接机制；优化检察职权配置，完善具体规则。     

环境信息公开与信息保密的冲突与调和

环境信息公开与保守国家秘密问存在着一定程度的冲突和紧张关系,为调和这种矛盾冲突,有必要在借鉴域外有益经验的基础上,准确适用我国既有环境信息相关立法并对相关制度予以构建与完善：一是严格限制国家秘密的范围,防止国家秘密的恣意扩张解释;二是扩大环境信息申请主体范围,缩减有关申请理由的限制性规定;三是畅通环境信息公开的救济途径,尤其强化司法救济的功能效力;四是加快环境信息公开的相关统一立法进程。     

从损害控制到风险预防：野生动物保护公益诉讼的优化进路

当前野生动物保护公益诉讼主要呈现损害控制型司法模式的特性,该模式以刑事附带民事公益诉讼为常规渠道,救济对象是既成公益损害,救济方式是损害赔偿、修复及专项整治。诉讼方式谦抑性、因果关系推定规则以及案件线索发现机制事后性,为此模式的合理运行提供了理据。本文运用风险预防原则的理论框架,认为野生动物保护公益诉讼的救济客体不应局限于生态环境损害,公共卫生安全的风险预防等关联性客体也应纳入其中,而损害控制模式这种事后治理方法存在短板。基于此,应将公益诉讼的视角回溯至事前,大力倡导风险预防型司法模式。风险预防模式与损害控制模式属于二元协同关系,前者对后者发挥补强与优化功能。根据风险预防模式的救济观,可探索野生动物保护的预防性行政公益诉讼制度,并全方位构建程序规则,以实现公益诉讼的前瞻性价值。     

在借鉴中建立我国环境责任保险制度

环境侵权责任的特殊性使建立在责任自负原则基础上的传统侵权救济模式在这一领域陷入困境。实践证明,解决此问题最为有效的方法就是建立社会化的赔偿方式,通过市场机制来分担风险。投保环境责任保险,可以避免承担巨额赔偿的风险,受害者又可以得到及时有效的救济。我国环境责任保险在实践中存在保险范围过窄、保险费率过高、配套法律制度不完善等问题。可以在借鉴西方先进国家经验的基础上,发展符合我国国情的环境责任保险制度。     

民事司法改革进程中环境纠纷行政处理问题探析

民事司法手段的局限性限制了司法手段在环境纠纷解决中的地位和作用。民事司法改革进程的深入发展和多元化纠纷解决机制的兴盛为环境纠纷的多元化解决途径带来了新的发展契机。环境纠纷行政处理的专业性、便捷性、可接近性决定了行政处理在环境纠纷解决中的独特作用和适用空间。在借鉴发达国家和地区环境纠纷行政处理的立法经验和灵活多样的纠纷解决途径的基础上,从环境纠纷行政处理专门立法、纠纷解决机构设置、纠纷解决方式、行政处理的纠纷范围、行政处理救济的程序保障等方面,提出完善我国环境纠纷行政处理制度的思考和建议。     

《民法典》环境侵权惩罚性赔偿制度之审视——以环境侵权惩罚性赔偿条款司法适用为视角

《中华人民共和国民法典》第1232条明确在环境侵权中被侵权人可以要求侵权人承担惩罚性赔偿，但具体适用的规定不足。通过梳理文献以及结合我国首例适用环境侵权惩罚性赔偿条款的案例，可知惩罚性赔偿在司法适用中存在请求权主体不明、赔偿数额不定以及赔偿归属者含糊等问题。为使民法在承担环境公益保护功能同时，减少滥诉、过分阻遏或重复赔偿等问题，应当建立完善的环境侵权惩罚性赔偿适用体系。     

完善民事赔偿制度,保障食品安全救济——以侵权损害赔偿为视角

食品安全已经成为我国一个重大的社会问题。由于现行民事立法的不足,食品消费者在权利受到侵害时,往往得不到较好的法律救济,因此完善食品安全的司法救济机制成为当务之急。本文以侵权损害赔偿为视角,对现行民事赔偿制度提出四点建议,寻求保障食品安全民事救济的合理路径。     

环境犯罪适用恢复性司法的理性思考

基于环境犯罪的特殊性与恢复性司法的目标,以当前环境犯罪适用恢复性司法的现状为切入点,明确学界对在环境犯罪领域中适用恢复性司法在案件适用范围以及被害人确定问题上存在争议。为此,在理性分析当前环境犯罪的犯罪化与刑罚关系,同时对被害人进行理性划定的基础上,指出在环境犯罪领域中适用恢复性司法应当适当扩大案件适用范围、完善救济对象与方式。     

论我国环境行政公益诉讼制度之构建

环境行政公益诉讼具有规范行政权力、保护公民环境权、完善行政诉讼制度的价值;在我国构建环境行政公益诉讼已具备了坚实的理论基础、观念基础、法律基础及司法基础.据此,应当着眼于现实国情,在立法上明确规定环境行政公益诉讼制度,同时,从拓宽原告资格、设定复议前置程序、引入禁令判决、以及设定律师强制代理等几方面着手细化环境行政公益诉讼的具体制度设计.     

Conversion of temperate forests into heaths: Role of ecosystem disturbance and ericaceous plants

Fire and logging in nutrient-poor temperate forests with certain ericaceous understory plants may convert the forests into heaths. The process of disturbance-induced heath formation is documented by using examples ofCalluna in western Europe,Kalmia in Newfoundland, andGaultheria (salal) in coastal British Columbia. In a cool, temperate climate, rapid vegetative growth ofCalluna, Kalmia, and salal following disturbance results in increasing organic accumulation (paludification), nutrient sequestration, soil acidification, and allelochemicals. These are thought to be the main reasons to conifer regeneration failure in disturbed habitats. If continuation in forest is a land-use objective, then temperate forests with an ericaceous understory should not be logged unless effective silvicultural methods are devised to control the ericaceous plants and restore forest regeneration. Preharvest vegetation control may be considered as an option. Failure to control the understory plants may lead to a long-term vegetation shift, from forest to heathland, particularly in nutrient-poor sites. Successful methods of controllingKalmia andGaultheria, however, have yet to be developed. While theKalmia- andGaultheria- dominated heathlands are undesirable in Canada and the Pacific Northwest, a wide range ofCalluna heathlands of western Europe are being conserved as natural and seminatural vegetation.     

AN APPLICATION RUNOFF MODEL STRATEGY FOR UNGAGED WATERSHEDS1

ABSTRACT: Mathematical models for predicting watershed surface flow responses are available, most of which are elaborate nonlinear numerical surface and channel flow models linked with infiltration models. Such models may be used to make predictions for ungaged areas, assuming an acceptable fitting of the model to the topography and roughness of the real system. For some application purposes, these models are impractical because of their complexity and expensive computer solutions. A procedure is developed that uses a complex model of an ungaged area to derive a simpler parametric nonlinear system model for repetitious simulation with input sequences. The predicted flow outputs are obtained with the simpler model at significant savings of money and time. The procedures for constructing a complex kinematic model of a 40 acre (161,880 m²) reference watershed and deriving the simpler system model are outlined. The results of predictions from both models are compared with a selected set of measured events, all having essentially the same initial conditions. Peak discharges ranged from 3 to 118 ft³/sec (0.085 to 3.34 m³/sec), which includes the largest event of record. The inherent limitations of lumped systems models are demonstrated, including the bias caused by their inability to model infiltration losses after rainfall ceases. Computer costs and times for the models were compared. The derived simple model has a cost advantage when repeated use of a model is required. Such an applications hydrologic model has an engineering tradeoff of reduced accuracy, and lumping bias, but is more economical for certain design purposes.     

Urban ecological systems: scientific foundations and a decade of progress

Urban ecological studies, including focus on cities, suburbs, and exurbs, while having deep roots in the early to mid 20th century, have burgeoned in the last several decades. We use the state factor approach to highlight the role of important aspects of climate, substrate, organisms, relief, and time in differentiating urban from non-urban areas, and for determining heterogeneity within spatially extensive metropolitan areas. In addition to reviewing key findings relevant to each state factor, we note the emergence of tentative "urban syndromes" concerning soils, streams, wildlife and plants, and homogenization of certain ecosystem functions, such as soil organic carbon dynamics. We note the utility of the ecosystem approach, the human ecosystem framework, and watersheds as integrative tools to tie information about multiple state factors together. The organismal component of urban complexes includes the social organization of the human population, and we review key modes by which human populations within urban areas are differentiated, and how such differentiation affects environmentally relevant actions. Emerging syntheses in land change science and ecological urban design are also summarized. The multifaceted frameworks and the growing urban knowledge base do however identify some pressing research needs.     

Neighbourhood characteristics and urban gardens in the Toledo metropolitan area: staffing and voluntarism,food production,infrastructure, and sustainability practices

Urban gardens are important sources of sustenance for communities with limited access to food. Hence, this study focuses on food production in gardens in the Toledo metropolitan area in Northwest Ohio. We administered surveys to 150 garden managers from November 2014 to February 2015 in our attempt to better understand how neighbourhood racial composition and poverty levels are related to staffing and voluntarism, food production and distribution, the development of infrastructure, and the adoption of sustainability practices in urban gardens. The results from 30 gardens are presented in this paper. We used Geographic Information Systems to map the gardens and overlay the map with 2010 census data so that we could conduct demographic analyses of the neighbourhoods in which the gardens were located. Though the gardens were small – two acres or less – up to 46 varieties of food were grown in a single garden. Gardens also operated on small budgets. Food from the gardens was gifted or shared with friends, family, and neighbourhood residents. Gardens in predominantly minority neighbourhoods tended to have fewer institutional partners, less garden infrastructure, and had adopted fewer sustainable practices than gardens in predominantly White neighbourhoods. Nonetheless, residents of predominantly minority and high-poverty neighbourhoods participated in garden activities and influenced garden operations. Volunteering and staffing were racialised and gendered.     

Using Paleo Reconstructions to Improve Streamflow Forecast Lead Time in the Western United States

In water stressed regions, water managers are exploring new horizons that would help in long‐range streamflow forecasts. Oceanic‐atmospheric oscillations have been shown to influence streamflow variability. In this study, long‐lead time streamflow forecasts are made using a multiclass kernel‐based data‐driven support vector machine (SVM) model. The extended streamflow records based on tree ring reconstructions were used to provide a longer time series data. Reconstructed data were used from 1658 to 1952 and the instrumental record was used from 1953 to 2007. Reconstructions for oceanic‐atmospheric oscillations included the El Niño‐Southern Oscillation, Pacific Decadal Oscillation, Atlantic Multidecadal Oscillation, and North Atlantic Oscillation. Streamflow forecasts using all four oscillations were made with one‐year to five‐year lead times for 21 gages in the western United States. This is the first study that uses both instrumental and reconstructed data of oscillations in SVM model to improve streamflow forecast lead time. SVM model was able to provide “satisfactory” to “very good” forecasts with one‐ to five‐year lead time for the selected gages. The use of all the oscillation indices helped in achieving better predictability compared to using individual oscillations. The SVM modeling results are better when compared with multiple linear regression model forecasts. The findings are statistical in nature and are expected to be useful for long‐term water resources planning and management.     

Predicting deer-vehicle collisions in an urban area

Collisions with deer and other large animals are increasing, and the resulting economic costs and risks to public safety have made mitigation measures a priority for both city and wildlife managers. We created landscape models to describe and predict deer-vehicle collision (DVCs) within the City of Edmonton, Alberta. Models based on roadside characteristics revealed that DVCs occurred frequently where roadside vegetation was both denser and more diverse, and that DVCs were more likely to occur when the groomed width of roadside right-of-ways was smaller. No DVCs occurred where the width of the vegetation-free or manicured roadside buffer was greater than 40 m. Landscape-based models showed that DVCs were more likely in more heterogeneous landscapes where road densities were lower and speed limits were higher, and where non-forested vegetation such as farmland was in closer proximity to larger tracts of forest. These models can help wildlife and transportation managers to identify locations of high collision frequency for mitigation. Modifying certain landscape and roadside habitats can be an effective way to reduce deer-vehicle collisions.     

MANGANESE CYCLE IN IMPOUNDMENT WATER

Manganese entering impounded water will undergo a cyclic transformation. Oxidation precipitates manganese from top waters. At the bottom of the lake, biological activity will render manganese soluble by both intracellular as well as extracellular activity. The study was made to demonstrate that biological reduction and transformation, organometallic complexation, together with the presence of carbon dioxide and the lowering of pH all have some effect on the solubility of manganese. Dissolved manganese may be brought back to top waters during the lake overturn and therefore deteriorates the water quality.     

Biodiversity and biotechnology

The maintenance of biodiversity is urged from many quarters and on grounds ranging from aesthetic considerations to its usefulness, particularly for biotechnology. But regardless of the grounds for preserving biodiversity, writers are generally in agreement that it should be preserved. But, in examining the various references biodiversity, such as species diversity, genetic diversity, and habitat diversity, it is apparent that we cannot aim to preserve biodiversityas such, since there are a number of conflicts in any such undertaking. In preserving one aspect of biodiversity, we damage another aspect. Five arguments which attempt to ground our moral concern for biodiversity are reviewed and critiqued, not only for their consistency but also for their power to move us to action. The final section of the paper shows how conflicts in the values of personal and environmental health can impair ethical action and especially policy formation.An earlier version of this paper was read at the conference on Agriculture, Food, and Human Values: Tradition and Change, Orlando, Florida, October 7–9, 1987.     

Surface applied water treatment residuals affect bioavailable phosphorus losses in Florida sands

Water treatment residuals (WTR) can reduce runoff P loss and surface co-application of P-sources and WTR is a practical way of land applying the residuals. In a rainfall simulation study, we evaluated the effects of surface co-applied P-sources and an Al-WTR on runoff and leacheate bioavailable P (BAP) losses from a Florida sand. Four P-sources, namely poultry manure, Boca Raton biosolids (high water-soluble P), Pompano biosolids (moderate water-soluble P), and triple super phosphate (TSP) were surface applied at 56 and 224kgPha(-1) (by weight) to represent low and high soil P loads typical of P- and N-based amendments rates. The treatments further received surface applied WTR at 0 or 10gWTRkg(-1) soil. BAP loss masses were greater in leachate (16.4-536mg) than in runoff (0.91-46mg), but were reduced in runoff and leachate by surface applied WTR. Masses of total BAP lost in the presence of surface applied WTR were less than approximately 75% of BAP losses in the absence of WTR. Total BAP losses from each of the organic sources applied at N-based rates were not greater than P loss from TSP applied at a P-based rate. The BAP loss at the N-based rate of moderate water-soluble P-source (Pompano biosolids) was not greater than BAP losses at the P-based rates of other organic sources tested. The hazards of excess P from applying organic P-sources at N-based rates are not greater than observed at P-based rates of mineral fertilizer. Results suggest that management of the environmental P hazards associated with N-based rates of organic materials in Florida sands is possible by either applying P-sources with WTR or using a moderate water-soluble P-source.     

Sources and Transport of Phosphorus to Rivers in California and Adjacent States,U.S., as Determined by SPARROW Modeling

The SPARROW (SPAtially Referenced Regression on Watershed attributes) model was used to simulate annual phosphorus loads and concentrations in unmonitored stream reaches in California, U.S., and portions of Nevada and Oregon. The model was calibrated using de‐trended streamflow and phosphorus concentration data at 80 locations. The model explained 91% of the variability in loads and 51% of the variability in yields for a base year of 2002. Point sources, geological background, and cultivated land were significant sources. Variables used to explain delivery of phosphorus from land to water were precipitation and soil clay content. Aquatic loss of phosphorus was significant in streams of all sizes, with the greatest decay predicted in small‐ and intermediate‐sized streams. Geological sources, including volcanic rocks and shales, were the principal control on concentrations and loads in many regions. Some localized formations such as the Monterey shale of southern California are important sources of phosphorus and may contribute to elevated stream concentrations. Many of the larger point source facilities were located in downstream areas, near the ocean, and do not affect inland streams except for a few locations. Large areas of cultivated land result in phosphorus load increases, but do not necessarily increase the loads above those of geological background in some cases because of local hydrology, which limits the potential of phosphorus transport from land to streams.