Developments in China Environmental Law
On January 1, 2015, one of China's most notable attempts in recent years to harmonise economic and social development with environmental protection, came to fruition with the implementation of the new PRC Environmental Protection Law (the “EPL”). This new law was brought into motion on March 2014 at the Annual Session of the National People’s Congress in where China declared war against pollution and emphasised the importance of amending its EPL with this aim.
China’s rapid economic expansion combined with the country’s relaxed environmental oversight has caused many ecological problems; therefore in response to public pressure, China has undertaken a number of measures to curb its growing problem of pollution and therefore improve the country’s environmental situation.
The EPL has reset the baseline and framework for the country’s environmental efforts, and is seen as a radical transformation of China’s environmental legal system to strengthen pollution control requirements. It details harsher penalties for environmental offences, such as acts of tampering and falsifying data, discharging pollutants covertly and evading supervision, provisions for tackling pollution, raises public awareness and protects whistle-blowers, further places more responsibility and accountability on local governments and law-enforcement agencies, and sets a higher standard for enterprises.
Issues and latest developments of the EPL
While the revision, which is the first change to the legislation in 25 years, established environmental protection as the basis of its policy and mandated that economic and social development be coordinated along this line, there are still gaps within the EPL, which may restrict its application and further prevent its potential effectiveness in protecting the environment. This includes the EPL’s standing in relation to other legislation, because legislation including specific agriculture, forestry, grassland, air and water laws, which are in relation to protecting these resources, may override the EPL’s application. The Chinese government has realized the issue and started relevant amendment and legislation procedure. According to the latest news, an official from the Ministry of the Environment Protection (the “MEP”) expressed that they are already in the process of amending the Law on the Prevention and Control of Atmospheric Pollution; the amendment to the Law on the Prevention and Control of Water Pollution will become the focus in 2016. Besides, the National People’s Congress, the highest legislation authority in China, has listed making the Law on the Prevention and Control of Soil Pollution into the legislation plan, and the said Law will become the focus in 2017.
One of the most important areas of law is implementation and enforcement, which ultimately determines how effective a law is. Therefore, EPL can only be successful to the extent its enforcement is effective. According to the latest statistics from the MEP, during the period from January to April this year, there are 160 cases of consecutive daily penalties nationwide and the penalty thereof amount to 112 million Yuan. Among them, the highest penalty in a single case reached to 15.8 million Yuan. In addition, there are also 1186 cases of sealing-up and impounding, 698 cases of restricting and ceasing manufacturing, 437 cases of transferring to administrative detention and 429 cases of suspecting for environment pollution crimes.
On the other hand, the enforcement of EPL exposes some limitations as well, such as lack of personnel at grass-root level and law-enforcing rank etc. Besides, the enforcement may also be hampered by the fragmented and overlapping structure of environmental governance in China through the multiple agencies that oversee matters in relation to the environment. This includes the Ministry of Environmental Protection; the ministries of water resources, land and resources, and agriculture; the State Oceanic Administration; and the State Forestry Administration and so on. Therefore, in order to implement and enforce the EPL successfully, there needs to be an overall body to coordinates the different activities, or the multiple agencies must have the ability to cooperate and coordinate with other environment enforcement agencies in order to promote efficiency and effectiveness.
Article 58 of the EPL provides that social organizations which fulfill certain conditions may bring a lawsuit to the court against conducts that are polluting, destroying environment and damaging social public interest. An Interpretation concerning Environmental Civil Public Interest Litigation released by the Supreme’s People’s Court this January, further clarifies that such social organizations may include civic organizations registered at the civil service department over the level of municipality with districts, civic non-enterprise entities and foundation etc. According to the news report, there are about 700 environmental protection organizations that meet the said conditions nationwide. Since the EPL became effective, there are environment public interest litigations brought by environmental protection organizations in provinces, such as Fujian, Shangdong, Jiangsu, Guizhou etc, however, the total number of such cases are still quite low due to limitation of funding, technology and so on. In addition, although the EPL gives citizens, civic groups and non-governmental organisations (NGOs) the right to obtain environmental information and to participate in environmental governance, the provisions do not clarify whether these parties could bring lawsuits against the government in relation to matters such as a serious lapse in air or water quality. Therefore, a public environmental litigation system for legitimate parties with appropriate standing is needed to provide cost-effective redress for those affected.
Finally, although Article 68 of the EPL provides liabilities of wrongdoing or failure to perform duties by the relevant government authorities, implementation and enforcement may be further complicated due to the lack of capacity and by conflicts of interests. The environment governance is exercised by the local environmental protection bureaus in accordance with the environment ministry’s guidance, however, the environment ministry does not possess sufficient authority over such local bodies. Therefore, such conflict and lack of capacity may be caused by the local government’s overall interest in economic growth rather than the protection of the environment, and because they possess authority in relation to the staffing and finance of the environmental protection bureaus, they hold the final authority over the decision-making.
ABOUT THE AUTHOR: Fei Dang
Fei Dang is an Associate in the MMLC Group, and acknowledges Joyce Chng's contributions to this article.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.