In order to achieve the most positive, effective and comprehensive results in environmental protection, countries must always use a combination of different environmental protection measures such as: Politics; Science and technology; Propaganda and education; Economics; Laws. Among the above measures, in recent years, many countries have tended to increase the application of economic measures in environmental protection (also called economic instruments). Although there are many different definitions and names, economic instruments can be simply understood as “the use of the market power by the State to guide environmentally-friendly behaviors of entities on the basis of linking economic benefits to environmental benefits”. Compared to the imperative - administrative environmental management instruments, the economic instruments are considered more flexible, so the economic instruments are expected to bring higher efficiency in environmental protection. Some advantages that create flexibility for economic instruments are as follows: “Economic instruments allow integration of environmental costs into market prices; encourage consumers not to consume products that harm the environment and encourage manufacturers not to use materials that cause environmental pollution; encourage manufacturers and businesses to invest in new pollution control technologies and sustainable production methods; contribute to creating financial sources for environmental protection activities, encouraging compliance with environmental laws”.
In fact, not so far economic instruments have just begun to be used in environmental protection. Since the 1992, Earth Summit in Rio de Janerio with the participation of 179 countries, the countries agreed to recognize 27 principles, of which the 16th principle refers to the application of economic instruments in environmental protection with content as follows: “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment”. Up to now, most countries have been applying many different types of economic instruments to environmental protection. With the appropriate and consistent enforcement measures and supporting measures, the economic instruments have brought very positive results in environmental protection for many countries. In Germany for example, “tax policies for environmental purposes have contributed to helping Germany develop its economy without depending on energy, reducing 25% of gas emissions as committed by the Tokyo Convention”; In Thailand, the country has raised gasoline taxes to encourage the use of biofuels. “These fuels are not only cleaner and more environmentally friendly, but they also help Thailand reduce its dependence on imported gasoline, which now accounts for 60% of the country's energy needs”.
On the basis of gaining experiences from many countries, although up to now there have not been any official legal document referring to the term “economic instruments” but in fact, Việt Nam has been applying economic instruments in many different methods for environmental protection such as: environmental protection taxes, natural resource taxes, environmental protection fees, environmental protection funds, ecolabels... The use of these economic instruments has contributed to diversifying Việt Nam’s environmental protection measures, helping Việt Nam better perform international commitments on environmental protection, also bring certain values in environmental protection such as: Environmental protection taxes contribute to guiding the behaviour of using environmentally friendly products and increasing revenues for the State budgets; Environmental protection fees help supplement financial resources to pay for environmental protection activities; Many entities implementing environmental protection activities have received financial support from the environment protection funds... However, it can not be denied that in Việt Nam, the effectiveness in environmental protection that these economic instruments brought is not really as expected, this comes from many different reasons such as: The legal regulations on economic instruments are still inadequate; The implementation has not been effective, lack of consistent support measures; Many people are still unaware of the existence of economic instruments as well as not aware much of environmental protection.
With the aim of further promoting the effectiveness of these instruments, the Draft Law amending and supplementing some articles of the Law on Environmental Protection has for the first time used the term “economic instruments” in Chapter X, also amends and supplements some provisions related to economic instruments. However, recognizing that the provisions on economic instruments in the Draft Law still exist some irrational points, which need further adjustments. Details are as follows:
Regarding the layout of Chapter X. According to the current Draft Law, the content of “economic instruments” and the content of “resources for environmental management” are stipulated in the same Chapter. However, the “resources for environmental management” provision is a set of provisions on human resources, material resources and knowledge (technology, processes, management capacity..) that are the foundation for the State and those who carry out environmental management, while the “economic instruments” provision is a set of provisions on environmental protection measures developed and operated based on “using market power to guide environmentally friendly behaviours of entities, on the basis of linking economic benefits to environmental benefits”. Therefore, “economic instruments” and “resources for environmental management” are two different contents but in the same Chapter that reduces the coherence and logic of the Law. This can be solved by separating Articles 115 - 122 of the current Draft Law into another Chapter on “economic instruments” and Articles 123 - 128 into other Chapter on “resources for environmental management”.
Structure of provisions related to current economic instruments. The Draft Law specifies each type of economic instruments in a separate Article of the Law, this is reasonable and ensures clarity and convenience for the application and development of guiding documents for implementation. However, the economic instruments prescribed in the Draft Law are incomplete because in addition to the listed instruments, Việt Nam is also applying some other types of economic instruments such as natural resource taxes, payment of forest environmental services, or public listing of facilities causing serious environmental pollution. Besides, in addition to these forms, in the future, Việt Nam may develop and deploy new economic instruments such as deposit - refund, transferable emission permits ... Therefore, in the content of economic instruments, it is necessary to supplement provisions on natural resource taxes, payment of forest environmental services, and public listing of facilities causing serious environmental pollution. Also, in order to ensure the generalization and stability of the Law, in addition to the specific provisions on each type of economic instruments, there must also be generalized and principled provisions guiding the development and implementation of existing economic instruments as the basis for the development of new economic instruments in the future. In terms of the form, the general provisions on economic instruments should be put into one Article and placed at the beginning of Chapter on economic instruments, followed by Articles that stipulate each economic instrument.
For the term “economic instruments”. Although in fact Việt Nam has applied the term “economic instruments” for a long time, but this term is not a common term, not easy to understand. This term is currently used by researchers only in research projects, not yet specified in legal documents. Besides, the current interpretation of this term of scholars is also very different and inconsistent. For example, economic instruments are “the use of the market power by the State to guide environmentally friendly behaviours of entities on the basis of linking economic benefits to environmental benefits”. But also another author said that “economic instruments in environmental management consist of two groups of instruments: management to adjust the behaviours of individuals and organizations in a way that benefits the environment through impacts on their financial resources; economic analysis to support the decision-making process on the environment”... In addition, many other explanations about economic instruments have been given, so to ensure a consistent understanding of economic instruments, to ensure consistency in most of the Law, the Draft Law should add provisions explaining the term “economic instruments” in Article 3 or the general provision of economic instruments.
Regarding environmental protection taxable subject. This is currently stipulated in Clause 2, Article 115, however there are still some unreasonable points that need to be amended as follows: This provision is not consistent with the provisions on taxpayers in Article 5 of the current Law on Environmental Protection Tax. Because according to Article 5 of the 2010 Law on Environmental Protection Tax, only the entities that produce and import goods under taxable subject have to pay environmental protection taxes and the entities using these goods are only under environmental protection taxable subject. Therefore, the inclusion of the word “use” in Clause 2, Article 115 of the Draft Law is not accurate; In the entities of payment of environmental protection taxes in Article 5 of the 2010 Law on Environmental Protection Tax, apart from “organizations, individuals”, the Law also stipulates that the entities are “households”, so to ensure consistency with the Law on Environmental Protection Tax, need to add the entities as “households” to Clause 2, Article 115; Regarding goods subject to environmental protection taxes, the provisions of Clauses 1 and 2, Article 155 are not consistent. If Clause 1 identifies the object as “products, goods when used causing negative impacts on the environment”, Clause 2 identifies the object as “products, goods causing negative impacts on the environment” in general, not just at one stage, this affects the consistency in the provisions of the Law. On the basis of the above restrictions, it is necessary to amend Clause 2, Article 115 as follows: “Organizations, households, individuals that produce, import products, goods causing negative impacts on the environment when they are used must pay environmental protection taxes”.
Principles for determining environmental protection tax rate and adjustment of tax rate are prescribed in Clause 3, Article 115. This provision also has some points to be adjusted: Regarding the basis for determining environmental protection tax rate, although the Draft Law has clearly stated 3 bases for determining the environmental protection tax rate, but the phrase “levels of toxicity” must be changed to “levels of negative impacts on the environment” to ensure consistency with the provisions of Clauses 1 and 2, Article 115. In addition, the phrase “under taxable subject” should be supplemented to avoid misunderstanding about the collection of environmental protection taxes on all goods and products; Regarding the basis for adjusting the environmental protection tax rate, although it is also related to the environmental protection tax rate, in order to make this provision more clear, it is necessary to adjust Clause 3, Article 115 as follows: “The environmental protection tax rate is based on the types and levels of negative impacts on the environment and quantity or amount of products and goods under taxable subject. The environmental protection tax rate is adjusted to suit the requirements of environmental protection and the country's socio-economic development conditions in each period".
Regarding provisions on environmental protection fees. Article 116 was developed on the basis of the provisions on environmental protection fees in Article 148 of the 2014 Law on Environmental Protection, so it is basically relatively appropriate. However, to ensure the terminology consistency with the provisions of Article 115 of the Draft, clause 1 of Article 116 should replace the word “for” with the word “on”, clause 2 of Article 116 should replace the phrase "prescribed on the following basis" with the phrase “based on”. In addition, it is advisable to adjust the phrase “environment where waste is received” in point c, Clause 2, Article 116 to “waste receiving source” to ensure compatibility with Clause 37, Article 3 of the Draft Law as well as other provisions in the Draft. For Clause 3, should add the word “development” and remove the word “in” to ensure compatibility with the provisions on the basis for adjusting the environmental protection tax rate in Clause 3, Article 115. Therefore, Article 116 should adjust as follows:
“1. Organizations, individuals that discharge wastes into the environment or generate negative impacts on the environment must pay environmental protection fees.
2. The environmental protection fee rate is based on:
a) Amount of wastes discharged into the environment, scale of negative impacts on the environment.
b) Levels of toxicity of wastes, levels of harm to the environment.
c) Levels of sensitivity of the waste receiving source.
3. The environmental protection fee rate is adjusted to suit the requirements of environmental protection and the country's socio-economic development conditions in each period."
Regarding deposits for removal of pollutants or contaminants, environmental rehabilitation and remediation in Article 117 of the Draft, there are some recommendations as follows: The title of this Article is not really consistent with the current situation, because Việt Nam is currently applying two types of deposits: Deposits for environmental rehabilitation and remediation for mineral extraction activities and deposits for imported scrap, in which deposits for imported scrap is aiming at “ensuring that organizations, individuals importing scrap are responsible for handling risks of environmental pollution which may arise from the shipment of imported scrap” rather than “removal of pollutants or contaminants, environmental rehabilitation and remediation”, besides, in the future Việt Nam may issue new deposit instruments with new goals, so Article 117 should stipulate as “Environmental protection deposits” instead of the current provisions; Depositors prescribed in clause 1, Article 117, need to supplement the following subjects: “Organizations and individuals importing scrap” to ensure the compatibility with current provisions; The term “mineral extraction project owners” should be changed to “mineral extraction organizations and individuals” to ensure compatibility with the provisions of point c, Clause 4, Article 37 of the Draft; The deposit level is specified in Clause 2, Article 117, this is a key factor determining the success of the deposit instrument but in reality, the deposit level is specified only by the cost of removal of pollutants or contaminants, or relatively depending on the types and quantity of imported scrap, so the deposit level is not strong enough to ensure the responsibility of environmental protection of the depositors, resulting in the failure to comply with environmental protection obligations, or accepting lost deposit amount. Therefore, it is necessary to consider more carefully the provisions related to the deposit level in the Draft Law to guide the development of the later guiding documents.
Provisions on funding sources for the operation of national and provincial environment protection funds in Clause 2, Article 118 of the Draft are changed from the 2014 Law on Environmental Protection. However, the removal of revenues from “environmental protection fees” and “compensations for the State for environmental damages” stipulated in the 2014 Law on Environmental Protection will make the operating capital of the environment protection funds limited, which affects the fund’s operation in the future, when there is a growing demand for financial support for environmental protection and climate change adaptation activities. In spite of the fact that currently, funds from environmental protection funds do not receive these two sources, but only need specific guidelines and effective implementation measures, this will be an additional funding source for environmental protection funds, helping improve the effectiveness of these funds.
Regarding provisions of Articles 120, 121, 122, these provisions all refer to the ecolabels, so it is not necessary to separate them into 3 Articles as currently to avoid losing the logic in structure of content about economic instruments. Also, to ensure the consistency, provisions on ecolabels should be concise, in principle, like other provisions, including: What ecolabel is, the conditions for being ecolabeled, consumption & production orientation for ecolabeled products.
Through the above analysis, it is very necessary to include the content of economic instruments in the Draft Law amending and supplementing some articles of the Law on Environmental Protection, clearly demonstrating the State’s views, objectives and efforts on environmental protection. However, for the economic instruments to be effective in practice when the Law comes into effect, it is necessary to continue to improve these provisions. Hopefully, the above recommendations can contribute to the improvement of economic instruments in the Draft Law, making positive results in environmental protection when implemented in reality.
MSc. Nguyễn Thị Huệ
Faculty of Law, Trade Union University
(Nguồn: Bài đăng trên Tạp chí Môi trường số Chuyên đề Tiếng Anh I/2020)