The Study on Legality of Environmental Tax
As the reforming of environmental regulation method around the world,market-based instrument for environmental regulation attained more and more support from scholar.At the same time,Environmental policy-maker became more interesting in this new type of environmental regulation method.Under this situation,environmental tax has been discussing by many people.Furthermore,as the popular fiscal reform around the world,the environmental tax reform attracting more attention from government fiscal officers.From the environmental protection perspective,environmental tax was thought as the best tool for resolving environmental problem.From fiscal reform perspective,environmental tax was thought as a rational choice for fiscal authority to establish a rational tax system.It is strange that although environmental tax has some advantage in theory,its practice in fact disappoint people who pay attention to it.Firstly,from national perspective,the process of enacting of environmental tax is slow,secondly,from international perspective,environmental tax was seldom considered by country except which was involved in fiscal crisis.According to the enacting and enforcement of environmental tax around the world,the reason why environmental enacting deviating environmental enforcement is that environmental policy maker have to consider following thing.Firstly,from national perspective,the enacting of environmental was adjusted to social policy.Unless the enacting of environmental tax considering distribute justice and industrial competitive,the enacting of environmental tax does not have legal reason.Secondly,from international perspective,as the development of international trade,the enacting of environmental tax was influenced by international trade rule,for example,the environmental tax of some country was thought as illegality by Dispute Settlement Body.Under this situation,unless enacting international environmental tax rule,environmental tax may conflict with international trade rule.As environmental tax was thought as an useful tool for environmental protection,it impressed many people.But when you read environmental tax materials,you may encounter different environmental tax concept,such as corrective tax,ecological tax and energy tax,you may do not kwon what should be environmental tax.Different scholar have different attitude toward environmental tax.Although all environmental tax concept have environmental protection purpose,it has different enlighten for environmental protection.ChapterⅠwill plan to explore the enacting and enforcing of environmental tax,and explain the reason why the enacting of environmental tax deviate the enforcement of environmental tax.Firstly,this chapter will discuss the theory development,theory advantage and theory challenge from theoretical perspective.Based on above theoretical research,we could found many character of environmental tax,such as kinds,function and shortcoming of environmental tax.Secondly, according to the social practice of environmental tax,we could find that environmental tax has many kinds,its function has been changed,and its construction has been reconstruction. Why practicing environmental tax deviate from theoretical environmental tax?This dissertation will explore this problem from technological and political perspective.Asides constrained by technical skill and political consideration,the design of environmental tax depending on social policy.Although double divided theory was used by some scholar to solve attack from people,this theory was suspected by more and more researcher.Among the social policy which influence the enacting of environmental tax, industry competitive and distribution justice play important role.From political economical of environmental tax,the enacting of environmental tax should take consideration of industry competitive and distribution justice.But from the environmental protection perspective,if environmental tax pay more attention to industry competitive and social justice,it may be not good for environmental protection.As a result,we should balance between this two consideration.ChapterⅡwill find the way for balancing.Just as the enacting of environmental tax depending on social policy,the design of environmental tax subject to international trade rule,especially the international trade rule of GATT and WTO.According to the national treatment of GATT/WTO,the“similar product”should treated nationally by party of GATT and member of WTO.If not,related trade measure took by party of GATT and member of WTO break the national treatment principle. From the decision of dispute resolve body,we can find that the national treatment was constructed strictly,which cause environmental tax was thought as illegal in international trade law.But as the development of environmental protection movement,the national treatment clause was explained by environmental protection consideration,which makes environmental tax legal in international trade law.ChapterⅢwill discuss this topic more detail.Among the rule of GATT,the exceptional clauses is corrected with legality of environmental tax.According to exceptional clauses of GATT,especially GATT 20, environmental protection is exceptional reason of national treatment.From the disputes about trade and environment which had emerged,we could find that GATT 20 become an important reason for breach of national treatment by member of WTO.According to enact of GATT 20 and its explanation by GATT/WTO dispute resolve body,we could find that the fact that environmental tax could be justified by GATT 20.But from the perspective of free trade, GATT 20 may be become a tool of trade protectionism.To balance between free trade and trade protectionism,enacting of environmental tax need international cooperation,which can improve both free trade and environmental protection.In a word,the enacting of environmental tax have to consider social policy,such as distribute justice policy and industrial competition policy.Furthermore,the enacting of environmental tax should consider international trade rule.If not,the enacting of environmental tax would be illegality.