Legal instruments for stimulating environmentally friendly behavior: successful practices in Russia and abroad

This paper presents an analysis of the most successful legal tools to stimulate environmentally friendly behavior of the population. The relevance of studying this issue follows from the disappointing data of the official statistics of the Organization for Economic Cooperation and Development, according to which air pollution can lead to premature death of 6-9 million people by 2060. Using the example of Russia, the EU countries, the USA, India and Japan, the specifics of state influence are revealed with the aim of stimulating “green” behavior of the population, the advantages and disadvantages of various approaches to state regulation in the environmental sphere are considered. Foreign experience is analyzed through the prism of the potential for its further reception in Russia - for example, it is proposed to turn to the practice of India, expressed in the functioning of a separate environmental court; special attention is paid to foreign experience in providing benefits and state assistance in the acquisition of electric cars. Despite the fact that achieving socially desirable behavior is possible through the imposition of sanctions, measures to stimulate environmentally friendly behavior can also be an effective way of influencing public relations, as they can lead to the formation of environmental legal awareness, lead to conscious and responsible, socially active behavior in relation to the environment. In the process of preparing the paper, an extensive regulatory and scientific material was studied (including using the legal research services such as Consultant Plus, Garant and Westlaw Academics), and the research methodology was both special legal (rather-legal, technical) and general scientific methods (analysis, synthesis, deduction, induction, etc.).


Introduction
One of the causes of climate change that is happening before our eyes is a high concentration of carbon dioxide in the air, which results in an increase in the greenhouse effect, melting ice, rising sea levels, etc. Carbon dioxide emissions are highest in the United States, the European Union, Russia, China, Japan and India. According to the forecasts of the Organization for Economic Cooperation and Development, by 2060, air pollution could cause premature death for 6 -9 million people. Toxic exhausts, landfills, dirty production effluents, etc. are a heavy burden on the biosphere.
In this regard, it is necessary to determine the vector of greening the modern legal policy of Russia in terms of areas for improving the environmental strategy and state policy of the environmental and legal development of the country. As measures for the implementation of the environmental safety strategy of the Russian Federation, the following relevant areas are used: legislative amendments in terms of encouraging organizations using production and consumption wastes that are used as secondary resources; improving state regulation of the liability of producers and importers for the disposal of waste from the use of goods (including in terms of tightening environmental safety requirements when handling hazardous waste); creation of a data bank to post reliable environmental information at the request of government agencies, business structures, industrial organizations, citizens; development of a draft bill regarding the establishment of an environmental audit system; introduction of innovative and environmentally friendly technologies, stimulating the development of environmentally friendly production, the use of environmentally friendly transport, minimizing the risks of accidents and other dangerous situations of anthropogenic nature, etc., as well as introducing international best practices in the field of waste management, encouraging resource-saving and eco-friendly behavior into Russian practice, introducing of technologies for environmental and bio-security.
Theoretical and practical aspects of the study of environmental and legal problems are reflected in a number of studies by foreign and Russian scholars. Their focus is primarily on a systematic approach to solving both national and international environmental and legal problems, the development of definitions and national models of environmental law. In the environmental legal doctrine, there are two groups of issues related to the classic tort liability for environmental harm: on the one hand, it is the need for the environmental good to belong to any particular entity, although it is public in nature; on the other hand, these are methods for assessing environmental damage, which is often not subject to accurate economic measurement based on traditional approaches to assessing damage (for example, in the case of damage to ecosystems or landscapes, loss of fauna and flora).
According to environmental scientists, the development of "ecosystem thinking of the personality", professional and environmental culture, and environmental consciousness are becoming a popular trend, which includes opposite types: both anthropocentric (priority of pragmatic interests of a person in his interaction with nature over the laws of its development) and ecocentric (priority of ecologically oriented values and meanings). This area is very relevant in the light of the National Ecology Project of the Russian Federation and the strategic area approved by the Government of the Russian Federation on the development of the environmental education system and advanced training in the field of environmental protection and environmental safety.
We emphasize the importance of this area of environmental development of legal development using the example of the recommendations of the report "The Limits to Growth", which was presented by the famous global scientists Dennis and Donella Meadows at the international conference on sustainable development of the world (Rio de Janeiro, 1992). This document speaks of the need to create a "society of sustainable growth" that will be able to solve global environmental problems, therefore its "creation is a matter of civic responsibility, vision, ethics. All these are properties not of the highest technologies, markets, governments, corporations or computer models, but of the human soul and human heart".
Various aspects of the methodology for the legal assessment of environmental protection measures and the environmental behavior of business in the Russian Federation are presented in the works of environmental lawyers and international experts. So, in their opinion, Russian environmental legislation remains poorly susceptible to the global experience of environmental conservation and legal environmental management tools (environmental management, eco-audit, etc.), very slowly perceives such "international universal legal means of environmental protection". Scholars and practitioners have made a significant contribution to the scientific development of conceptual provisions on legal incentives to reduce the amount of harmful waste, its disposal and reasonable consumption. Some offer a classification of instruments for economic and legal regulation of environmental activities (taxation, rationing, positive and negative financial regulation). Other scientists have identified such practical means as environmental taxes, fees and charges, environmentally motivated subsidies, and tradable permits and quotas.
Environmental lawyers regard the legal form of environmental activity as a set of legislative acts on the environmental safety of the population, a system of legal practices for the protection of the environment, the use of natural resources, and the practice of applying state coercion measures. The control measures in the environmental legal mechanism of domestic researchers include environmental certification, environmental impact assessment and environmental licensing. A number of researchers criticize the current regulatory approach to environmental damage assessment in the Russian Federation, as it is based on constant cost indicators and fixed values in the legislation. Legal procedures for recovering damage on the basis of fixed indicators for excess pollution are enshrined in an obsolete regulatory legal act.
Despite the large number of publications, a number of issues remain unresolved, since there is an urgent need to find the best ways and means of greening legislation aimed at creating the so-called "green" legal system and maintaining "green values" in the legal culture, introducing the principles of an environmental approach in legal practice of enterprises, legal stimulation of their environmental activities.

Methodology
The empirical basis of this study was extensive legislative material, analytical and statistical materials of international and national research organizations, expert centers, reports and scientific papers related to the issue under consideration (both in Russian and in foreign languages). The authors analyzed materials from the Organization for Economic Cooperation and Development, data from the World Bank, the European Parliament, and other institutions and organizations.
Theoretical research methods include both general scientific methods of cognition (mainly abstraction and concretization, as well as systemic and structural-functional analysis), and special legal methods (technical and rather-legal).
Particular attention is paid to the use of the economic and legal method of cognition of environmental behavior in the context of the theory of utilitarianism of J. Bentham and the economic and legal teachings of R. Posner.
In the process of preparing the study, a significant amount of material was obtained from the legal research services such as Consultant Plus, Garant, Westlaw Academics.

Results
Environmentally friendly behavior must be understood in a broad (socio-economic) and narrow (legal) sense. Environmentally friendly behavior in the broad sense is a set of environmentally friendly practices (combating climate change, saving natural resources, preferential purchase and operation of environmentally friendly consumer goods and technical devices, proper waste disposal, etc.) used in all spheres of human life. Environmentally friendly behavior in the legal sense is the conscientious exercise by a person of his environmental rights and the proper fulfillment of legal duties to protect the environment.
The state has two main legal ways to achieve socially beneficial environmentally friendly behavior: either by coercing it or by stimulating it.
Coercion as a method of influence is used in many countries of the world and is expressed, first of all, in the clear establishment of a specific legal obligation and application of legal liability measures for persons committing acts that are harmful to the environment.
However, exposure solely by coercion does not always produce results. In enforcing public policies, most countries rely not only on coercion, but also on encouraging socially desirable behavior. For example, in the field of taxes, many states (such as Russia, the UK, the USA) not only rely on sanctions, but also establish various benefits and concessions for entities that voluntarily comply with tax laws. The environmental sphere is no exception. It is stimulation as a way of influencing social relations that allows forming an appropriate level of legal awareness over time.
The effective use of environmental taxes in the analyzed national practices leads to an important result. Behavioral habits of not only producers -taxpayers, but also consumers are changing in the direction of saving natural resources and reducing environmental pollution. "Green taxation" indirectly promotes the introduction of more efficient ways of using resources into consciousness and practice, leads to a reorientation of environmentally hazardous industries, and others. As a regional study has shown, more environmentally friendly behavior of entities that have an economic relationship with ecosystems is facilitated by tax benefits. As a result of the search for optimal incentive tools for the production of more environmentally friendly products, many jurisdictions have introduced tax incentives for such producers and consumers, in particular, in the transport industry. The practice of using tax deductions for those who use electric cars for business or personal purposes is gaining ever greater momentum. In the United States, in order to stimulate the purchase of electric cars, a tax credit for personal and corporate income tax purposes was provided -in the case of purchasing an electric car, the taxpayer has the opportunity to reduce the amount of tax due by $ 2,500-5,000. Among the benefits applied in the EU countries, one can note the possibility of receiving state assistance (purchase grants) in France if you dispose an old diesel car when buying an electric car (the bonus provided by the state under this program can be up to 11 thousand euros). In Belgium, vehicle registration tax for electric cars are canceled (Flanders) or reduced (Wallonia). In Russia, this practice is also accepted. Many constituent subdivisions in Russia (regions) provide for an exemption from regions exempt from transport tax for persons using vehicles with electric motors. Such exemption is provided, for example, by regional laws on transport tax in Moscow, Amur, Belgorod, Irkutsk, Kaluga and Kemerovo regions. Some regions of Russia provide for electric vehicles a twice reduced tax rate on the transport tax, which is confirmed by the laws of the Sakhalin Region and the Kabardino-Balkarian Republic. These measures contribute to increasing demand for electric cars in Russia and reducing sources of environmental pollution.
Other tax mechanisms for stimulating environmentally friendly behavior are also popular: for example, in the United States, a corporation is entitled to a tax credit if the corporation purchases energy-efficient dishwashers and washing machines consuming no more than the specified amount of water per cycle, as well as energy-efficient refrigerators (the law sets forth the criteria for energy and water efficiency -for example, for a dishwasher, it is no more than 307 kW/h and 5.5 gallons of water). Russia also has a significant number of tax incentives that encourage "green" and/or "environmentally friendly" behavior. For example, for personal income tax purposes, the social tax deduction on income transferred to non-profit organizations operating in the field of environmental protection and animal welfare actively applies; when determining the tax base for corporate income tax, funds received as part of targeted financing, including grants for the implementation of specific programs in the field of environmental protection, health protection, are not taken into account. Subparagraph 5, paragraph 1, article 67 of the Tax Code of the Russian Federation provides for the possibility of providing an investment tax credit for an organization investing in the creation of facilities that have the highest energy efficiency class and (or) related to renewable energy sources, as well as if this organization takes measures to reduce negative impact on the environment.
A separate area in the state environmental policy is the promotion of the development of renewable energy sources. For example, the United States not only legislatively declared incentives for these activities, but also provides specific benefits, for example, with respect to corporate income tax: in accordance with §45 of the US Internal Revenue Code, corporations are given the opportunity to reduce the amount of tax payable (i.e., tax credit is provided) if this corporation produces and sells alternative energy. • mineral extraction tax (chapter 26), the objects of taxation of which are the following types of extracted minerals: oil shale, coal, hydrocarbon raw materials (oil, gas), commodity ores of ferrous, non-ferrous and rare metals, and other types of mineral resources according to the list in par. 2, Art. 337. Taxpayers are persons who have obtained licenses (permits) for using a subsoil plot; • land tax (chapter 31), the objects of taxation of which are land plots specified in Article 389, and taxpayers are organizations and individuals who have them on the basis of ownership, the right of permanent (unlimited) use, or the life-long right of inheritable tenure; • Chapter 25.3 of the Tax Code establishes state duties for issuing permits for the discharge of polluting and radioactive substances into the environment, as well as for issuing a comprehensive environmental permit.
It should be noted that the listed taxes (fees) are payable regardless of the payment for the negative impact on the environment, which is provided for by the Federal Law "On Environmental Protection" dated 10.01.2002 No. 7-FZ. De jure there are still no environmental taxes in Russia, but de facto, as the researchers note, we are dealing with 4 types of environmental taxes: energy (excise taxes that may be levied on operations with diesel fuel or gasoline), transport, taxes on pollution (i.e. charges for environmental pollution) and resource taxes (MET and other fees). In the world, by contrast, the approach of clearly defining environmental taxes is common. The United Nations System of Environmental-Economic Accounting (SEEA 2012, UN et al., 2012), a global statistical standard, provides a definition of environmental tax as: a tax whose tax base is a physical unit (or a proxy of it) of something that has a proven, specific, negative impact on the environment (UN et al., 2012 (4.150)). This definition now constitutes a component of the EU's statistical framework as stated in the Regulation (EU) No 691/2011 on European environmental economic accounts. Based on above, the UK government identified the following taxes as environmental: climate change levy (CCL), aggregates levy, landfill tax, EU emission trading scheme (EU ETS), carbon reduction commitment energy efficiency scheme and the carbon price support. As a result of the analysis of the environmental legal policy of several countries of the world, alternative measures were identified in the context of improving environmental safety, such as the promotion and state support of trade in environmental services on the national and world markets, environmental labeling of products, the use of collateral value for the return of packaging and containers, which will turn this waste into a new resource, an increase in the share of environmental investments and market-based instruments for stimulating resource-saving measures and an environmentally friendly practice.
One of the results of a comparative analysis of the practices of environmentally friendly behavior of business structures was an attempt to classify environmental and legal risks, as well as means to minimize and prevent them. Risk as a probable negative consequence of a legal nature can manifest itself in the activities of subjects in the field of environmental management. There are varieties of environmental and legal risks: compensation for environmental damage, sanctions for environmental tort, failure to submit permits, negative conclusion of environmental expertise or eco-audit, suspension or termination of the right to use natural resources, prohibition for conducting relevant activities, etc.
A study of the World Bank's practice of legal instruments on environmental business regulation has shown that one of the important conditions for credit financing of a project is its environmental assessment and compliance with both national environmental standards and EU environmental requirements, and international environmental and legal criteria. If this condition is violated at any stage of the investment cycle, the Bank is entitled to revise its decision on further lending. So, about fifty leading banks that accumulate more than a third of all credit resources in the world are voluntarily guided by the so-called "the Equator Principles" developed on the basis of the concept of the International Finance Corporation of the World Bank to assess environmental and social risks in the selection of candidates for financing.
With regard to the Russian Federation, we have no confirmed information about the accession of Russian banks to the IFC "equator principle" concept, although it has become known that certain long-term financing tools for "green projects" are being introduced into Russian practice. But in general, it was possible to identify that the "Western model" of assessing the impact of business on nature is focused on the development of environmentally responsible investments, which become the basis for sustainable business and environmentally friendly behavior.
It was possible to establish good practice in the communitarian model of the European Union to compensate for environmental harm and stimulate environmental behavior. According to the directive of the European Parliament and the Council of the EU No. 2004/35 / CE "On environmental responsibility for the prevention of environmental damage and the elimination of its consequences" of 2004, a transnational public law liability regime for environmental damage is widespread. It is important to bear in mind that this EU directive regulates pure ecological damage. Compensation for damage caused as a result of an environmental violation of human life and health, as well as property of individuals and legal entities and resulting from environmental damage, is the prerogative of exclusively the national legislation of the EU member states. These are civil and environmental codes, other legislative acts. The EU approach contrasts with the prevailing private-law liability mechanism based on tort law in Russia. In the EU, environmental damage is compensated in kind, and funds are recovered from the enterprise-culprit in monetary form to cover direct (actual) costs of restoring the damaged bio-state. Unlike the Russian legislative methodology, which is based on the not entirely correct method of indirect costs, which are understood as methods and tariffs for assessing environmental damage. In the basic Law of the Russian Federation on Environmental Protection, there is no way of in-kind compensation in the form of work to restore the components of the environment and measures to prevent environmental harm.
In mixed legal systems, the most comprehensive approach to the problem has developed. In Japan, whose legal system was formed under the decisive influence of German, French and American law, the institutions of civil, environmental and natural resources law are used in a complex to stimulate the environmentally friendly behavior of people and companies. The primary level of government action is in Art. 709 of the Civil Code of Japan, where the general rule is tort liability for ecosystem pollution (with a guilt in the form of negligence). But along with it, the institute of strict liability (liability excluding guilt) is used, for example, in the Air Pollution Control Law and the Water Pollution Control Law. The Japanese government has developed a legal compensation scheme for certain types of damage and harm from pollution. One example is the Pollution Related Health Damage Compensation Law of 1973, according to which a patient with an established disease caused by pollution and living in a polluted area can be recognized as a victim of environmental tort and receive compensation from the government, regardless of the application of tort liability to the polluter. This government compensation system is funded in Japan by pollution charges based on annual emissions estimates from owners of pollution facilities (The Waste Management Law of 1970, Law No. 137).
In the mixed legal system of India, the main emphasis is on criminal liability (fines and imprisonment) in accordance with the provisions of The Indian Penal Code of 1860, and a special National Environmental Tribunal Act of June 17, 1995 was adopted. The unusual nature of the system of regulatory authorities is manifested in the separate structure of the Supreme Court of India, within the framework of which there are the Supervisory Committee and the Authorized Committee on Waste, coordinating the activities of all environmental and law enforcement agencies of the country. In accordance with the recent "National Green Tribunal Act" dated June 2, 2010, an extensive mechanism of compensation for environmental damage and the resolution of disputes arising from the protection of forests and other natural resources and the commission of environmental crimes was enshrined. So, for causing death, damage to any person or his property, or damage to the environment, the owner (tenant) of the enterprise is directly responsible for paying compensation based on the "polluter pays" principle.
A comparative analysis of the models of continental Western Europe and the Anglo-Saxon states revealed the priority of pre-trial mechanisms for the elimination and prevention of environmental damage, financial incentives for the environmentally friendly behavior of business structures and an out-of-court procedure for compensation for environmental harm.

Discussion
The idea of introducing a wide range of legal instruments to stimulate environmentally friendly behavior of citizens, economic entities and business structures is one of the most ambitious and at the same time complex practical tasks.
Thus, a number of domestic researchers and practitioners criticize the possible expansion of the powers of the supervisory authorities and the introduction of an out-ofcourt liability procedure in Russia, reasonably taking into account the emerging corruption risks and non-transparency of supervision. We also join this cautious approach, not supporting the idea of empowering the competent authorities to issue instructions on eliminating the consequences of environmental harm and recovering the cost of preventive or remedial measures from owners of enterprises.
In Japan, such original institutes as the "green police" and "garbage detectives" have developed, which may become the subject of further discussion in the order of borrowing positive experience. Japanese law also broadly describes the areas of environmental impact assessment. In particular, all industrial and social projects are checked according to the degree of their impact on the natural environment and cultural monuments, the shading of neighboring houses, the level of biosafety, the possibility of disposal and burying of solid waste. The Japanese novelty on the establishment of new minimum limits for radioactive particles in foodstuffs and ensuring safety at nuclear fuel reprocessing facilities is also being discussed.
In relation to the Russian Federation, the positive experience of India in establishing a specialized environmental court can potentially be considered. In order to unload federal and magistrate judges and increase the competence level of decisions on environmental cases, it is proposed to set up a judicial board on disputes relating to the environment and natural resources as part of the Supreme Court of the Russian Federation.
It is proposed to consider such an institution as an "environmental ombudsman" created within the framework of the World Bank's International Finance Corporation for the perspective implementation in practice of Russian banks and financial structures. This independent "Complaints advisor" reviews the complaints of individuals and entities affected by the environmental impacts of IFC-funded projects, examines the results of audits of the social and environmental performance of sensitive projects, and monitors their compliance with guidelines, procedures and systems.
The special "environmental tax" that is widespread in a number of jurisdictions, which is intended to become an important legal and financial motivator of environmentally oriented behavior, should be recognized as debatable. So, in 2018, the Ministry of Finance of the Russian Federation introduced the concept of a bill on the introduction of an environmental tax in Russia in exchange for the existing payment for negative environmental impacts, as well as the inclusion of the procedure for its calculation and payment in the Tax Code of the Russian Federation. According to some researchers, the transfer of fees for negative environmental impacts into the category of "environmental tax" will entail a logical increase in administrative and economic pressure on business structures, the application of sanctions (penalties, fines) to non-payers under the Tax Code of the Russian Federation may cause bankruptcy of individual enterprises, and so on.
An important area of further discussion is the institution of environmental insurance in the context of measures to stimulate the environmentally friendly behavior of business entities. The question of shifting the burden of determining the amount of compensation for environmental damage to insurance companies, and the gradual transition to compensation for damage to environmental objects on the basis of an insured event is considered. It is also recommended, given the high corruption component in the political and legal culture of Russia, to transfer all types of compensation and fines only to local special environmental funds.

Conclusion
Summing up the study, we can conclude that one of the promising environmental and legal tasks in the Russian Federation should be the legalization of the procedure and criteria for assessing the environmental impact and security mechanisms in the biosafety sector. Particularly noteworthy is a new type of environmental monitoring, such as assessing the impact of economic activity on climate change, distortion of ecosystems and impacts on infrastructure during the activities of business structures and economic entities. It is also necessary to resolve difficulties in determining the amount of damage and filing claims, since the authorized bodies and applicants are forced to limit themselves to requiring obsolete methodological manuals. In the legislation of the Russian Federation on the environment, the right emphasis should be placed on such an element of compensation for harm as compensation in kind, in particular, through remediation. The lack of a vertical and coordinated branch of environmental jurisdiction and control over environmental pollution in Russia, the low level of professionalism of eco-lawyers, the poor market of environmental legal consulting and the services of eco-auditors, as well as the formality of the measures taken to prevent negative environmental impacts significantly impede the implementation of the environmental strategy security of the Russian Federation.
At the same time, our country has accumulated positive experience in environmental and legal regulation, including in the area of liability for environmental tort. The provisions of the environmental legislation of the Russian Federation that regulate property liability in terms of compensation for environmental damage, differentiation of types of damage into economic, environmental and social ones, which is of practical importance for calculating the amount of compensation, are indicative. Administrative and criminal law institutions can also be borrowed in terms of stimulating environmentally responsible behavior of citizens and business structures. The construction of administrative liability in the form of suspension of environmentally hazardous activities and the unique body of a crime enshrined in article 358 "Ecocide" of the Criminal Code of the Russian Federation deserve attention in practice.
When deciding on the effective legal regulation of the environmentally friendly behavior of entities, it is necessary to understand that it exists at three levels. The first level is the international regulation of environmental management, implemented by the bodies of the world community (for example, only together we can solve the problems of climate change and global warming). The second level is national (domestic), within the framework of which each country first tries to solve its environmental problems at the legislative, and then at the practical level (in particular, the problems of the purity of drinking water in Africa). The third level is an individual one, which is currently being developed within the framework of the Smart City concept, when each citizen, for example, is involved in sorting household waste.
In general, Russia has yet to establish an optimal balance of legal and economic instruments that provide sufficient environmental burden on business and regulatory structures, achieve proper compliance with environmental and legal regulation and legal incentives for the development of an eco-friendly business. It seems that the conceptual approach in this case should be based on the Pareto criteria, which will allow regulating eco-use in such a way that subjects can preserve and increase natural resources while conscientiously implementing their environmental rights.