Environmental Law: A New Era

By Professor Wang Canfa 13 March, 2015

Prof Wang Canfa thinks China's new environmental law marks a new era. CWR sat down with him to see why, Prof Wang Canfa thinks China's new environmental law marks a new era. CWR sat down with him to see why

On January 1 2015, China’s amended Environmental Law came into effect after more than 25 years without revision. The amended law, which has been referred to as “the most stringent environmental law of all time”, is highly expected to finally give “teeth” to China’s environmental agencies.

China Water Risk sat down with Professor Wang Canfa, Director of the Institute of Environment and Resources at China’s University of Political Science, to get his views on the amended Environmental Law and what it means for China’s environment, industries and people. Overall, Prof Wang thinks the amended environmental law marks a new era of environmental legislation in China, a “new normal” but also that some problems remain.

China Water Risk (CWR): What are the key highlights of the amended Environmental Law?

Wang Canfa (WCF): There are several major points.

Basic principles of the amended law more clearly prioritize the environment

Changes in basic principles of the legislation now more clearly prioritize the environment. For example, “coordinated development” has changed to “conservation priority” and  “prevention first, combining prevention with control” is now “prevention, first, combining comprehensive governance”.

The amended law strengthens the government’s environmental responsibility. It is also tougher on Environment Impact Assessments (EIA) – all related formalities must be completed prior to the project going ahead.

Overall environmental liability is now much stricter

Overall environmental liability is now much stricter. In the amended law fine amounts have increased and a new daily meter penalty has been introduced. Additionally, offenders can be held in administrative detention and also face criminal charges. Another key change is the law’s environmental public interest litigation system.

(CWR): The amended environmental law underwent a long revision process. There were even times when some proposed to abolish it and replace it with legislation. What are you views on this?

(WCF): Theoretically, the environmental law is the leading law and most comprehensive law on the environment. However, the old environmental law hadn’t be revised for such a long time that it later became contradictory with more recent special laws, causing confusion for law enforcement.

There has been debate on this confusion in China’s legislature. The State Council Legislative Affairs Office once insisted to abolish the environmental Law but the Ministry of Environmental Protection (MEP) strongly opposed the move. All the power that the MEP had could be traced to a single article of the environmental law. Now, with the amended environmental law the MEP can play a bigger role.

CWR: Though the MEP has ‘environmental protection’ in its name, in reality other departments also perform this function. Why is that?

WCF: There was a time when the MEP didn’t exist. All the power that MEP has now, it has gotten from other departments step by step.

“The problem for China is not that the MEP has too much power, but too little.”

The problem for China is not that the MEP has too much power, but too little. For example, many laws and regulations have been held up in the legislation process because the Ecology Division of the MEP is too weak. Some such laws and regulations include: “Wetland Conservation Law”, “GM Food Safety Law”, “Invasive Species Management Law” and “Law of Natural Reserve”

CWR: Currently China’s water is managed by the “nine dragons”. Do you think there is a future for a super-management water department?

WCF: Water management includes the management of water resources, aquatic ecosystem and water pollution. The three elements have mutual connections and differences.

In China, water resources are managed by MWR. Water pollution is managed by MEP. Water ecology is more complicated and so managed by several departments. Some wetlands, for example, are managed by the Ministry of Forestry, while some by the Ministry of Agriculture. When the water ecosystem meets a beach, it becomes the responsibility of the State Oceanic Administration.

To create a super water department is hard…

Hope lies in cross department coordination with set responsibilities for each department

Even just to pinch management on water ecology together is hard enough. To create a super-department to manage all water problems is even harder.

CWR: Are there any practical solutions to make water management more effective across departments?

WCF: Hope lies in cross department coordination, which requires strict rules to set responsibilities for each department.

CWR: There is much anticipation for the ‘Water Pollution Prevention and Control Action Plan’, known as the ‘Water Ten’. Do you have high hopes?

WCF: The ‘Air Ten’ seems to have had a large impact on air pollution and regulation.

If the ‘Water Ten’ Action Plan isn’t turned into a law then there is only limited power to punish violators

All ‘action plans’, no matter on air, water or soil, are administrative orders. If they can’t turn into laws then violators may not be punished.

CWR: Are you saying you prefer environmental legislation to administrative orders?

WCF: Yes. China has always said to operate by the “rule of law”, but in many instances there is still “rule of command (administrative orders)”. Of course, we can’t ignore the fact that in China, administrative decisions from the State Council are often implemented much faster than law enforcement.

CWR: The central government declared “war to pollution” last year but some are wary that it might only be a “movement”. What’s your stance?

“Xi Jinping said we should keep the “APEC blue” but I’m not sure how we can. The sacrifice of shutting down factories is huge and who pays for this?”

WCF: “APEC blue” is typical movement on pollution. Xi Jinping said we should keep the “APEC blue” but I’m not sure how we can. The sacrifice of shutting down factories is huge and who pays for this?

We have particularly high efficiency when it comes to administrative orders, but the problem is that private interests are not protected. In a state with an adequate legal system, the government has no power to order a factory to halt production as long as the factory abides by the law.

CWR: What are some of the advantages and disadvantages of our environmental law system?

WCF: We have a relatively perfect system on environmental law. It also has a strong character in which we weigh administration over civil rights.

“We have a relatively perfect system on environmental law.

… However, when it comes to how to make polluters pay and how to ensure compensation of environment victims, there is very little attention.”

There are many positive provisions on environmental administrative permits in our environmental law like the EIA. However, when it comes to how to make polluters pay and how to ensure compensation of environment victims, there is very little attention.

CWR: The MEP published the “Environmental Damage Appraisal Recommended Method (Part II edition)” in October 2014. How will this help with claims on environmental damages?

WCF: The new version is really for simple and large-scale incidents, like cases of explosions or  leakage that occur within a short period time. The identification of these environmental accidents is relatively easy. However, for chronic environmental damage such as Chemical Oxygen Demand (COD) and Biochemical Oxygen Demand (BOD) emissions from polluting factories to rivers, which causes crop reduction and fish to die, it is not easy to carry out such damage assessment.

CWR: What about health damages caused by environmental pollution, how does the claim system work?

WCF: Currently at the national level there is no unified plan for this kind claim. That’s why we have been advocating an “Environmental Damage Compensation Act’. The Environmental and Resources Protection Committee of the National People’s Congress did put it into the legislative plan once, but it didn’t pass in the Law Committee.

This is because of different opinions on environment damages compensation. The civil law community considers a special law unnecessary because the “Tort Liability Act” has already defined four types of pollution tort liability. The environmental law community, however, insists on a special law to support environmental damage compensation.

CWR: The ‘Water Pollution Prevention and Control Law’ (last amended in 2008) stipulates “third-party liability”. When environment damage is caused by a third party, the discharge party should compensate for the loss first and then pursue recovery from the third party. How does this help to solve the problem of claims?

WCF: Back to 2008 when the law was revised, at least three discussions with experts were hosted to figure out how to deal with third-party liability. The final outcome of the discussion is what we see in the current law. We believe the principle can protect the victims of pollution. However, many enterprises and experts were against the rule, believing enterprises will bear too much liability.

CWR: China follows the “polluter pays” principle so why is third party liability needed?

WCF: The “polluter pays” principle has problems in practice: many pollution sources can’t be identified or polluters can’t afford to pay.

The “polluter pays” principle has problems in practice…

As a result the govt pays but it can’t raise enough money to cover all pollution

Polluters of groundwater are very hard to trace. As for environmental damages from bankrupt mines and factories, they can’t pay. As a result, it’s always the government that has to pay. China has widespread pollution and the government can’t raise enough money to cover it all.

In the U.S, the “Superfund” not only traces retroactive pollution but also future impacts, meaning newcomers, even if they aren’t aware of the historical pollution are also responsible for remediation. This principle is very “unreasonable”. The civil law community can’t agree to it, it’s too unfair.

CWR: So what do you think the solution to these responsibility and fiscal issues is?

WCF: There is a difference between environmental law and civil law. Environmental law is the type of law that sometimes you need to sacrifice minor principals to achieve bigger goals.

Enterprises benefit from discharging pollutants so, they should be liable for the environment damages. If they are not paying, then who should? Should the victims of the environmental damage take responsibility? Is that fair?

“The solution can only be like this: who benefits from the discharge, whether illegal or not, should be held liable for the damage.”

What about the government, should they pay for it? Government finance, which is collected from tax, should be spent on improving public welfare. If the government pays for the damage, then less finance will flow to public health, poverty relief, public infrastructure and other public welfare. Is that fair?

So, the solution can only be like this: who benefits from the discharge, whether illegal or not, should be held liable for the damage. Only this way can we achieve fairness in the bigger picture.

Further Reading

• Pollution Prevention: What’s The Plan? – The ‘Water Ten’, expected to be released during the National People’s Congress 2015 hasn’t been. So, what’s Beijing’s plan with pollution so clearly on everyone’s mind; though mainly air pollution with “Under the Dome”? CWR’s Dawn McGregor and Hongqiao Liu expand
• Water Source: Who Is Responsible? – Data shows water source quality improving but some experts question how accurate this can be without a specific standard? Moreover, pollutants, ineffective treatment & unclear ministry responsibilities pose threats. CWR’s Hongqiao Liu expands
• Rural Drinking Water Far From Solved – Experts say the Chinese government’s plan to ‘completely solve’ the problem of rural drinking water safety by the end of 2015 is a ‘mission impossible’. Find out why and more as CWR’s Hongqiao Liu expands
• Harsher Punishments for Polluters as China Revises Law
• The War on Water Pollution – Premier Li has just declared war on pollution. Tan expands on the government’s stratagems & offensives and fundamental changes required to shore up the MEP’s arsenal in order to wage a successful war
• Pollution: It Doesn’t Pay to be Naughty – State Council wants to use the enforcement of law & regulation “to force the economy to transform and upgrade”. See how violation cost surges with daily fines, new standards & discharge permit trading in a bid to push China to go clean
• MEP Reform: From Mountaintop to Ocean? – The MEP is currently regarded as too weak to punish polluters due to dispersed authority & overlapping functions. Given the ‘war on pollution’, is reform to make a Super MEP necessary to improve China’s ‘mountains, water, forest, farmland & lakes’?
• Prioritising EIA Reform in China – Fraudulent & substandard EIA reporting persist. How does China’s EIA process compare to the US & HK? We examine the reforms in store for companies & EIA assesors
• Time to Enforce China’s Environmental Law – With the new guard in place, is it time to update China’s environmental law? Professor Wang gives a candid take on China’s environmental laws & enforcement – past, current and future