Environmental Law Amendment: 40 Year Set Back?

By China Water Risk 11 July, 2013

Will China's environmental development be set back by forty years? Or will the amendment be shelved?

Hopes for pollution enforcement with increasing transparency on tackling water pollution in  China (more on this in “Groundwater Crackdown: Hope Springs”) was dashed by the draft revision of the 1989 Environmental Protection Law was released for examination by the National People’s Congress (NPC)  on 25 June 2013.

The draft recommends all public interest environmental lawsuits be directed through the All-China Environmental Federation (ACEF), China’s largest quasi-official environmental organization, effectively stopping other organizations, including NGO’s and individual citizens from initiating lawsuits themselves.

NGOs, environmental & legal commentators frustrated

Not surprisingly, this proposed change to the Environmental Protection Act has been met with a great deal of anger and frustration by the media, legal profession and NGO’s.

 “send the Chinese people back 40 years when there was no rule of law in China”.

Liu Jianqiang, Beijing Editor of China Dialogue

Beijing editor of China Dialogue, Liu Jianqiang says that the “new law would restrict the right to file pollution-related lawsuits to the government-affiliated Environmental Federation, trampling on the rule of law and exacerbating pollution in China”. He adds that this will “send the Chinese people back 40 years when there was no rule of law in China”. A separate China Dialogue article has Beijing environmental lawyer Li Gang describing the revisions as “a step backwards for environmental legislation.”

Concerns are expressed around ACEF’s capability and capacity to deliver on its new responsibilities. Some as yet unanswered questions include:

• Given the extent of China’s pollution problems, can one organization possibly be solely responsible for the huge number of potential cases?
• Will the ACEF be a bottleneck for environmental disputes?
• Can the ACEF, a quasi-official body overseen by the MEP, be independent and act to punish polluting companies at the expense of GDP growth?

Numerous NGO’s including Friends of Nature and Nature University have lodged official complaints, complaining that the proposed changes are unscientific, lacking in legal basis and hard to implement.  Ma Jun head of the Institute of Public and Environmental Affairs (IPE) summed up the situation aptly when he “weibo-ed” “Environmental litigation is bound to be on a rough road!”  

At odds with recent interpretation for criminal cases

What is puzzling, is that the spirit of this change appears to be at odds with the new interpretation for criminal cases of environmental pollution which was released by the Supreme People’s Court and Supreme People’s Procuratorate of China a few days earlier that month. This interpretation aimed to reduce the difficulties and costs associated with the collection of evidence, which had previously been a barrier for enforcement and conviction of environmental criminal cases. This in theory should make it easier for the public and NGO’s to bring environmental public interest lawsuits. However, under the proposed revisions of the 1989 Environmental Protection Law such action would not be permitted. The proposed amendment also appears to fly in the face of the recent government crackdown on groundwater.

On the plus side: More penalties and The People Daily appears to slate the proposed changes too

That being said, it is not all bad news. The proposed revision includes new text stipulating that “environmental protection is a basic national policy”,” with harsher penalties for polluters such as daily fines and no upper limits for repeat polluters.

“kill the possibility of citizens to participate in public interest litigation, and may also hamper the development of environmental case law for public interest, and at worse can worsen environmental pollution”

The People’s Daily

Also, The People’s Daily, an organ of the Central Committee of the Communist Party of China (CPC), “tweeted” via Weibo that “the subjects of environmental public interest litigation should not be restricted.” In the article they also went on to say, that the proposed changes could “kill the possibility of citizens to participate in public interest litigation, and may also hamper the development of environmental case law for public interest, and at worse can worsen environmental pollution”.

Could these comments be an indication of infighting within the government whilst at the same time conveying the current thinking by the new guard? If so there is hope yet. The revision is yet to be passed. Hopefully, the new leadership will take bold steps forward rather than move forty years backwards.