Time to Enforce China’s Environmental Law

By Professor Wang Canfa 8 March, 2013

Professor Wang gives us a candid take on China's environmental laws & enforcement, Professor Wang gives us a candid take on China's environmental laws & enforcement

There is a clear shift in priorities within the Chinese leadership from economic growth at all costs to more balanced development that includes environmental protection. The body of international law promulgated over the past 30 years is in the process of being strengthened while new environmental regulations and standards are being released almost daily. Companies and investors in China need to understand the impact of the existing and new environmental law on businesses there.

China Water Risk’s Ying Shen recently spoke to Professor Wang Canfa, who has led many aspects of the development of environmental law in China. This has included the drafting and revision of over 30 environmental laws, regulations and administrative decrees at national and local levels over the last two decades. Professor Wang gives us a candid take on China’s environmental laws – past, current and future and enforcement issues.

CWR: Does China have adequate environmental laws?

WCF: In China we have covered almost every important area of environmental law. Overall we have around 30 laws related to the environment and natural resource protection.

CWR: What would be the most important next step for environmental legislation?

WCF: It is difficult to establish new laws in environmental protection, but we are making an effort with regard to some. An example is the law on the “Control Over Safety of Dangerous Chemicals”¹, and the law on “Electromagnetic Radiation Pollution Prevention and Control”. There are quite a few complaints about electromagnetic radiation pollution in China. Also, the law on Climate Change is currently being drafted. If you look at natural resource protection, there should be a law covering Nature Reserves, for example. Some are already in Decrees, but there need to be laws in the future. Also, there is no legislation on wetland protection.

CWR: Besides national laws, is there any push at the local and ministerial levels?

WCF: Yes, when the law requires the State Council to make detailed regulation.

CWR: How about standards?

WCF: We already have over 1,000 environmental standards. Actually, every pollutant should have a standard. The standards for pollution will be stricter over time.

CWR: Is there good synergy among the laws, decrees, regulations and standards? Are they working together systematically?

“if you look at the overall legislation for environmental and natural resource protection, it is hard to say that the whole system is working well together”

WCF: If you consider pollution prevention and control, the laws are shaped by the same department and this allows for integrity. But if you look at the overall legislation for environmental and natural resource protection, it is hard to say that the whole system is working well together. Although every draft law is subject to discussion and approval by the Legislative Affairs Office of the State Council or People’s Congress, different drafters will have his/her ministerial “style” and it is not easy to change the framework. Some departments place greater attention on their own rights and don’t address explicitly the tasks of other departments.

CWR: Are there possibilities for improvement?

WCF: The government is amending these short-comings gradually, but it is very hard to change. Actually, we have made some progress, for example in encouraging public participation. Now drafts of legislation from the People’s Congress are public information and available for comments and suggestions. This has helped to prevent some defects.

CWR: Are the laws appropriate given the level of development in China over the past 20 years?

WCF: You have to say that environmental legislation has protected our environment at some level, but it is not enough. The goals of the legislation have not been reached. For instance, the first article of the Environmental Protection Law says clearly that we should protect and improve our environment. But our environment has deteriorated over the past 30, or 40 years. What do we mean by “protect our environment”? At least it should be that it cannot be made worse. What do we mean by, “Improve our environment”?  This means to make it better. A journalist asked me why our environment is so seriously polluted when China has so many laws. I replied that without those laws, the environment would be in worse shape. So the existing environmental laws did have some effect.

CWR: Would you then say that the main issue is enforcement?

“The key is to change the principles and thus make institutional change … to promote ‘sustainable economic development’, not just ‘economic development’ “.

WCF: The per capita GDP of China has reached USD4,000 to USD5,000 and since that is the case, we need now to improve environmental laws that were established thirty years ago. The key is to change the principles and thus make institutional change. For instance, previously we insisted in the Environmental Protection Law that the goal of environmental legislation was to promote the development of “social modernization construction”. Environmental protection was simply to support economic development.

This is wrong, particularly given our level of development. Now, we are in the process of revising the Environmental Protection Law to at least include that the purpose is, to promote “sustainable development”, not just “economic development”. But we need to make material changes to our environmental legislation.

Now, economic and social development should give way to environmental protection. This is already enshrined in a few environmental laws, for instance the Law on Ocean Island Protection. This also can be found in some local laws, for example in Shenzhen, which set environmental protection as the top priority during urbanization.

We have not reached consensus yet about whether to endorse this principle from a national level or not. For the current revision of laws, we have not included this principle. We need to emphasize this change.

“…we need to make material changes to our environmental legislation.”

We should similarly adopt the precautionary principle from other legal systems. (This states that if an action or policy might cause harm to the public of to the environment, the burden of proof that is not harmful falls on those engaged in the potentially damaging action.  Under EU law, the Precautionary principle has been made a statutory requirement). Until now in China the main focus has been on prevention and treatment but this allows for greater pollution while treatment of the existing pollution is ongoing. Adopting the precautionary principle would help address this and potential polluters would have to take precautions against any pollution.

The third principle China should adopt is the principle of Prevention of Significant Deterioration (PSD), which appears in the U.S. The Clean Air Act of 1970. This means that the environment at least will not deteriorate starting from implementation of the legislation. In China now, however, if a company meets pollution standards that is enough. In those areas where the environment is better than the national standards, then are they allowed to pollute to the point that their environment degrades to the national standards? In for instance areas such as Tibet and Qinghai province, the air quality is grade I which is higher than the national level. Are they allowed to pollute the atmosphere to grade II, which is where the national requirement is set?

CWR: What about the development of environmental liability insurance and an environmental damage compensation fund?

WCF: The problem is there is no compensation or not enough to make up for pollution and environmental damage, so I stressed the need to develop legislative action. This would aim to deter environmental pollution and to let the potential polluter understand the price of pollution; understand that it will cost money to repair the environment, to compensate victims and they cannot pollute the environment freely without paying.

CWR: Recently, we saw potential serious ground water pollution in Shandong province². Is the current cost of a violation too low?

“…it is necessary to set criminal liability for hidden polluters.”

“In China, the punishment is too small to prevent hidden emission or cheating.”

WCF: The potential ground water pollution in Shandong province is a hidden emission. The “Law on the Prevention and Control of Water Pollution” only sets fines for hidden emissions, but no criminal liability. Since it is very hard to catch hidden emitters, I suggest applying the precautionary principle. And if someone is caught for hidden emission, he/she must assume criminal liability. Our law is not in that shape yet.

I was the main drafter of the Law on the Prevention and Control of Water Pollution. I suggested that it was necessary to set criminal liability for hidden polluters. Unfortunately, this didn’t get through. As a compromise, if the pollution affects the environment and endangers people’s lives, property and security, criminal detention could be applied. So, in a word, the cost of violation in China is too low. In Sweden, once you are caught for hidden emissions, you are subject to criminal punishment.

CWR: How likely are we to see an increase in fines in the near future?

WCF: We need to make revisions to the laws to increase the violation cost and apply criminal punishment to the hidden emitters once caught. At the same time, it would help to introduce daily penalties on violators.

CWR: Are the environmental courts working?

“…only one-third were successful largely because of the difficulty collecting testimony.”

WCF: The situation is still difficult. We set up the Center for Legal Assistance to Pollution Victims (CLAPV), and the CLAPV reporting hotline several years ago. But out of around 300 lawsuits in which we supported victims free of charge, only one-third were successful, largely because of the difficulty in collecting testimony. This type of lawsuit is not strongly supported by local government. And some local courts won’t even hear the cases. We need to develop public interest litigation for environmental interest.

CWR: Are local people willing to sort out environmental pollution via environmental courts?

WCF: Usually they prefer petition, via administrative measures.

CWR: Why?

WCF: It’s quicker. Also, if people are not satisfied with administrative measures, they can appeal until they are satisfied. For courts, once the judge has made a court decision, there is little way to change that. But actually the petition negatively affects social stability and accustoms people to protest rather than protecting their rights based on the law. The solution is to establish the authority of the law, and to guarantee the court will reach fair judgments.

CWR: Laws on access to information did change in 2006. Has this helped push along transparency regarding pollution violations for example?

“information disclosed is not what people want to know, or very useful…

Only after notification of applications for administrative reconsideration, or court intervention, will they disclose the targeted information.”

WCF: Less than a week after the State Council promulgated the “Government Information Disclosure Regulations”, the Ministry of Environmental Protection issued the “Environmental Protection Information Disclosure Interim Measures”. People are enthusiastic about this, but the executive authorities and companies have been silent about environmental information disclosure. Of course, in accordance with the requirements from the State Council, they must publish some information. But the information disclosed is often not what people want to know, or very useful. Some environmental organizations have applied for information disclosure, but the local departments may refuse. Only after notification of applications for administrative reconsideration, or court intervention, will they disclose the targeted information.

CWR: Does this happen frequently?

WCF: Yes.

CWR: Is any improvement possible?

WCF: Information disclosure should be further legislated, not only to disclose government information but also environmental information from enterprises. It is necessary to make the rules more specific and rigorous. Thus, the executive authorities cannot have reason to refuse such applications.

CWR: With more specific and rigorous laws and regulations, what would be the biggest barrier to enforcement?

WCF: The biggest resistance comes from the impulse toward economic development on the part of the local government³. Local governments tend to pay more attention to the economy. In evaluations of local governors, the first indicator is local GDP, employment and other economic indicators. The state of the local environment, how many people are sick because of the pollution, and how much money is spent on the resulting disease, are rarely considered.

CWR: You mentioned you are drafting a law on climate change?

WCF: It is still far away from promulgation. Some teams are framing the structure, the articles are not yet drafted. It will take at least 3 years to finish the legislation process. Some of the environmental laws took around 10 years to pass.

CWR: Besides climate change, what other environmental legislation is on the agenda?

“There will be more and more environment laws in the future, that’s for sure.”

WCF: Yes, we are working on a law on Nature Reserves, also revising the Environmental Protection Law and the Law on Prevention and Control of Air Pollution. The Law on Prevention and Control of Soil Pollution and Regulations for Livestock Breeding Pollution Control are in the process of drafting and reviewing. There will be more and more environment laws in the future, that’s for sure.