论技术赋能背景下的环境法法典化——迈向智慧型环境法典

随着大数据、人工智能、遥感遥测等新兴信息技术应用于环境监管实践的程度不断加深,技术赋能已然成为当前及今后开展环境治理的重要途径,也成为环境法法典化的时代背景。然而,技术赋能在提高环境治理效率的同时也挑战了现有环境法范式:一是新兴信息技术介入环境实践引发了新的不公正现象,使实体性环境正义和程序性环境正义都受到了挑战;二是环境法律规则滞后于治理需求,由于在环境法律规制场景中,以技术代码等为主的"算法程序"能够成为实然层面的"环境法律规则",会导致权利义务失衡;三是环境监管过程中大量运用新兴信息技术,可能出现数据失真、算法偏见、规制俘获等风险,影响环境监管部门在决策、监督、管理及执行等过程中的职能履行效果。随着环境法典编纂提上议程,如何权衡技术赋能的风险与收益成为亟待解决之题。由于技术赋能环境治理突破了既有环境法范式,出现环境治理场景去人工化和环境法律规制在线化现象,这意味着技术成为环境治理和环境法律规制场域的介入因素,导致环境治理实践面临社会系统和规制系统双重"脱域"之境遇。可见在大数据时代,不仅要关注环境法典编纂的篇章结构、规范体系等具体问题,也要立足环境法范式转型之时代需求,为研究环境法典的未来样态提供理论支撑。因此,技术赋能背景下的环境法法典化要在祛魅技术风险的同时保障治理效能,并逐渐迈向智慧型环境法典。其一,要塑造新型环境法典理念,重构环境法与新兴信息技术之间的关系,以回应技术赋能对传统环境正义所带来的冲击,进而形成能被环境法共同体所接受的共有价值,实现数字环境正义;其二,要结合新兴信息技术改造环境法律规则,实现环境法律规则与技术代码的沟通,并以此为基础创新环境法律规则形式;其三,智慧型环境法典要关注风险预防,实现风险与收益相平衡,利用新兴信息技术建立智慧型环境风险防治机制,提高事前、事中及事后全流程环境风险防治效能。

On the codification of environmental law under the background of technological empowerment: Towards an intelligent environmental code

With the deepening of the application of new information technologies such as big data, artificial intelligence, remote sensing and telemetry in environmental supervision practice, technological empowerment has become an important way to carry out environmental governance at present and in the future, and it has also become the background of environmental law codification. However, technology empowerment not only improves the efficiency of environmental governance, but also challenges the existing paradigm of environmental law. First, the intervention of new information technology in environmental practice leads to new injustices, which challenges both substantive environmental justice and procedural environmental justice. Second, the environmental legal rules lag behind the governance requirements, because in the environmental legal regulation scene, the algorithm program dominated by technical codes can become the environmental legal rules at the actual level, which will lead to the imbalance of rights and obligations. Third, the extensive use of emerging information technology in the process of environmental supervision may lead to risks such as data distortion, algorithm bias and regulatory capture, which affect the effectiveness of environmental regulatory departments in the process of decision-making, supervision, management and implementation. With the compilation of environmental code on the agenda, how to balance the risks and benefits of technological empowerment has become an urgent problem to be solved. Because technological empowerment environmental governance breaks through the existing environmental law paradigm, there appears the phenomenon of de-artificial environmental governance scene and on-line environmental legal regulation, which means that technology has become an intervening factor in the field of environmental governance and environmental legal regulation. As a result, the practice of environmental governance is faced with the situation of detachment of social system and regulation system. It can be seen that in the era of big data, we should not only pay attention to the specific issues such as the text structure and normative system of the compilation of the environmental code, but also provide theoretical support for the study of the future pattern of the environmental code based on the needs of the paradigm transformation of environmental law. Therefore, the codification of environmental law under the background of technological empowerment should ensure governance efficiency while disenchanting technical risks, and gradually move towards an intelligent environmental code. First, it is necessary to shape the concept of a new environmental code and reconstruct the relationship between environmental law and emerging information technology, so as to respond to the impact of technology empowerment on traditional environmental justice, and then form a common value that can be accepted by the environmental law community, to realize digital environmental justice. Second, we should transform environmental legal rules combined with emerging information technology, realize the communication between environmental legal rules and technical codes, and innovate the form of environmental legal rules on this basis. Third, the intelligent environmental code should pay attention to risk prevention, achieve a balance between risk and income, and use emerging information technology to establish an intelligent environmental risk prevention mechanism to improve the efficiency of environmental risk prevention and control in advance, during and after the event.