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Guan Jianqiang:Should solar energy be nationalized?


On June 14, 2012, the Heilongjiang People’s Congress issued an“Ordinance of Exploration and Protection ofClimatic Resources in Heilongjiang Province.”
Article 2 of the Ordinance stipulates that “climatic resourcesrefers to wind power, solar energy, precipitation, and atmospheric composition which can be used in human activities and comprise the climate and environment.”
Article 7 stipulates that “climatic resources are state-owned” and that “it is mandatory to get approval from the provincial Meteorological Bureau for exploringclimatic resources.”
The Ordinance immediately aroused controversy. Some people asked if the State, as the owner of climatic resources, would bear the responsibility for victimsofnatural disasters like flooding. If not, the rights and duties stated in the Ordinance would be unequal and unfair.
Article 63 in China’s Legislation Law stipulates that the Provincial People’s Congress and the Standing Committee may enact local decreesto clarify different laws and administrative regulations.

Article 9 in China’s Constitution stipulates that“mineral resources, waters, forests, mountains, grassland, unreclaimed land, beaches and other natural resources are owned by the state, that is, by the whole people.”
The climatic resources mentioned in the Ordinance aredifferent from the natural resources mentioned in the Constitution. Wind power and solar energy are not natural resources like mineral resources and forests. Civil law does not consider wind power and solar energy as matter. They are private property, subject to the profit principle of “who develops, owns.”
China’s Meteorology Law stipulates that the exploration, exploitation, and use of climatic resources should be managed by the relevant departments of the State in accordance with the law. However, it does not state that solar energy belongs to the State.
The Standing Committee of the Provincial People’s Congress has a duty to seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress. By listing climatic resources as natural resources, the Heilongjiang People’s Congress has interpreted the Constitutionand overstepped its authority.
Provinces and cities do not have the power of national legislation
Jiang Qifan, a member of the Team of Legislation in the Standing Committee of Heilongjiang People’s Congress, recently presented his view in“Legal Daily.”
According to Jiang Qifan, if meteorologicalobservation wouldnot need the approval of the government, some foreign enterprises could carry outmeteorological observationsin China around military zones. These wouldaffect China’s security. Moreover, there would be disorder and waste of resources. Therefore, to him, the ordinance is a forward-looking legislation that protects China’s security and economic development.
Nobody questions the administrative management mentionedin the Ordinance. What is questionable is the Ordinance’s definition of climatic resources as properties of the State. Even without owning climatic resources, the State canstillmanageby administrative license.The Ordinance violates the Administrative License Lawby confusing civil relations with administrative relations.
At the same time, it should also be noted thatlinkingclimatic resources to national security brings the issue within the ambit of national sovereignty.Articles8 and 9 in China’s Legislation Lawstipulate that “regarding matters relating to state sovereignty, onlythe National People’s Congress and Standing Committee thereof maydecide whether to enact a national law or not.” Therefore, a province, a city, or a county has no power to decide if climatic resources are owned by the State.
Encourage the private exploitation of energy
The March 11, 2011,earthquake and tsunami damaged many nuclear reactors in Japan. This deepened global interest in solar energy and other renewable energy.
China is a country which lacks energy. It is strategically crucialfor China to encourage and guide private participation in the exploitation of new energy.In the long term, the development and use of new energy will help China save petroleum, coal, and other strategic energy reserves.
The National Energy Administration’s “Suggestions to Encourageand Guide Private Capital to Further Expand Investment in the Field of Energy”states that China will broaden the scope of private capital investment. China encourages private enterprises to participate in the development and operation of the State’s key energy-related projects, subject only to existing laws and regulations.
The Ordinance issued by Heilongjiang Province contains no article which encourages private participation in resource exploitation. This limits private participation in the exploitation of new energy and does not conform to the policies of the State.

Guan Jianqiang is a specially invited commentator of the China Energy Fund Committee and aProfessor atEast China University of Political Science and Law.
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