中国与世界,环境危机大家谈

china and the world discuss the environment

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“China’s green laws are useless”

Wang Jin

Readinch

Wang Jin is a Peking University professor and expert in environmental law. In a speech in August, he argued that legislation in China is failing to tackle pollution. This is a summary of his remarks.

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Since 1979, the National People’s Congress and its Standing Committee have passed as many as 280 pieces of legislation, of which 29 – almost 10% – relate to environmental resources, energy and clean production. No one can say that legislative efforts in this field have been weak. In addition, civil, criminal and business laws have grown to include regulation on environmental and resource protection, subjects that have also featured in the rulings of the State Council, China’s highest administrative authority.

Similarly, environmental-protection bodies have developed and expanded and their powers strengthened. The number of environmental-protection personnel employed at all levels of government has increased annually, an environmental law enforcement system is under construction and the number of monitoring bodies is constantly increasing.

At the same time, the government’s own figures on the state of the environment show that air and water pollution in China have already reached a critical level. Official data indicates that 150 million mu [10,000 square kilometres] of arable land in China – one tenth of our total – has been affected by pollution. Rates of cancer and other diseases are increasing, and the number of disputes over pollution has increased by 20% to 25% every year since 1996.

Clearly, there are major problems with the implementation of China’s environmental laws. In most western countries, legislation is evaluated some time after implementation. If China were to do the same, I believe we would find our environmental laws have failed. There are several key issues behind this:

First, China's whole legal system is not working well because the nation’s basic legislative system is incomplete. For example, the Property Law of the People’s Republic of China, which came into force as late as 2007, and the Tort Law, which was only enacted last year, not to mention a number of regulations that make up the country's administrative laws – governing organisations, procedures and enforcement – are still filled with holes. Moreover, criminal law as regards pollution is extremely weak: as long as no major pollution of the environment, no major loss of property and no major injuries result, then there is no crime. And those who pollute in the full knowledge that they are putting public health at risk are not classed as criminals.

Second, although there were no major errors in the drafting of the environmental laws, it did not produce legislation of any great merit either. In China, when you want to apply the law in order to enforce some particular responsibility, more often than not you find there is no applicable regulation.

Third, the actual articles of the law and the law’s overall aims often contradict each other. For example, there are limits on the release of pollution, but businesses are allowed to exceed those limits if they pay a fee. In spite of the law being tightened, such breaches happen all the time, and in order to collect the ensuing fines – and thereby fulfil this aspect of their duties – environmental-protection officials allow the situation to continue.

We see the same thing with the environmental-impact assessment (EIA) system. The law stresses the importance of prevention, but allows a company to go ahead with a project even if it has not carried out an assessment – as long as it promises to do one further down the line. According to our research, across the country, more than 50% of EIAs are dealt with in this way. High polluting and energy-consuming firms, in particular, are fans of this approach; if they have already got the local licence and other relevant permissions for a project, they can force through approval of their EIA, but if they talk about the EIA in advance, it’s highly likely that it won’t go through.

Similar problems are found in the realms of public participation, open information, the implementation of rectification orders and on-site checks. The truth is that all of China's laws are like this: on the surface, they look great, but when it comes to implementation, they are useless.

In May 2010, the government of Guzhen county, in the eastern province of Anhui, removed six local environmental-protection officials – including the bureau chief – from their posts. They had checked up on one firm three times within a 20 day period, a move the government claimed was damaging efforts to attract investment. A local Anhui province law requires environmental authorities to obtain approval before making checks. Other places are following suit, with the result that the biggest polluters and energy consumers are being protected by local government.

Implementation of environmental law is also affected by several judicial factors:

First, there are difficulties enforcing the sanctions handed out to polluting firms. If the company does not comply with the ruling, an application for court enforcement can be made – but the courts are unenthusiastic about this measure. In many areas, courts are graded on successful implementation of their own judgements in lawsuits. These administrative environmental punishments do not arise from their lawsuits, and therefore enforcing them does not increase the rating of the court. 

Second, even getting to the point where a lawsuit is heard is tough, as courts can refuse to accept cases. China’s supreme court and local courts have regulations on the handling of so-called sensitive or special cases, meaning they can refuse to let someone bring an action and leave them with no other options to pursue. A survey of 12,000 judicial employees I once carried out found that 50% believed lawsuits were regularly being refused by courts in the name of social stability. 

Second, if the case is accepted, it may not be heard. If it is heard, a judgement may not be given. And if there is a judgement, it may not be enforced.

Third, it is rare that criminal responsibility for pollution is enforced – while those who use violence to protest pollution are often prosecuted. There are so many cases where victims who have had enough of constant pollution breaches and have no means open to them of bringing a lawsuit, are finally forced to resort to violence in order to fight the polluters.

Some time back, a lawyer from the All-China Lawyers Association’s Environmental and Resources Law Committee was representing a man who, driven to his wits end, had taken direct action against a firm in the interests of self-protection. He was subsequently arrested and charged with disrupting production. In court, the lawyer said: “Companies that continuously break pollution regulations are carrying out illegal production. Local governments and the courts should pursue them in accordance with the law.” The court held that illegal pollution did not constitute illegal production – but that it was against the law to cut off the company’s power or block its roads.

China’s environmental standards can also, inadvertently, cause harm. China currently has 20 standards for atmospheric pollution, compared to 187 in the United States. So during the 2008 Olympics, when reporters complained about Beijing’s poor air quality, China proudly retorted that it had met its standards. How could this be? China does not, for example, have a standard for particulate matter of 2.5 nanometres or less – and if you don’t have a standard, you can’t breach it. This is an obvious flaw.

In addition to all of the above, there are also problems with the quantity and quality of available personnel and inadequate technology. Meanwhile, the actual amount of money spent on pollution control is far less than the authorities claim – we have seen this reflected in many individual cases, where it is claimed that hundreds of millions of yuan has been spent, but the real investment is much lower. This issue is related to insufficient funding for environmental protection.

Laws without regulation, troops without power, duties without action: in the final assessment, this is the current state of environmental law in China.

Wang Jin is a professor at Peking University’s Law School, and head of the All-China Lawyers’ Association’s Environmental and Resources Law Committee. This is an edited version of a speech he gave at the Green Reporters’ Salon.

Homepage image from Yasmin’s Water Resources Blog

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一个巴掌拍不响

中国出口对象国的工业、政府和媒体早已经注意到文章中描画的现实状况一些年了。

但是,他们不但纵容这种违反环境法的行为,甚至通过继续从中国进口鼓励这种做法。

因此,中国国内对这些国家自然不可能持过高评价的。

It Takes Two To Tango

Industry, government and the media in countries to which China exports stuff have for some years been aware of the reality which this article so clearly portrays.

However, they not only condone such abuses but encourage it through their countries' continued imports.

Consequently, perceptions of those countries from within China are unlikely to be flattering.


环保法执行——一个笑话

中国环保法执行的根本缺陷在于其政府的官僚结构,地方官员——从省到市到县到村——都是主要按他们管制下的企业创造的GDP(以及税收额)来评定政绩的。因此,这些官员便成了污染企业的保护者。

而且当地方政府阶层的环保局是对当地政府负责,而非对独立立法机构如北京环境保护部等负责的,这样问题就更大了。这些环保官员常常对违反相关法律的行为视若无睹,以免惹怒上级领导。

简单来说,除了所有的立法之外,环保今天在中国来说也不过是个笑话。

Blueleaf.

PE Enforcement--A Farce

The fundamental flaw of China's environmental protection enforcement lies in its governmental-bureaucratic structure in which officials at the local level - from provincial, city, township down to village - are evaluated for promotion based heavily on 'GDP' (and tax revenues generated) contribution from industries under their charge. As a result, such officials often become 'protector' of the polluter.

The problem is further magnified when the environmental protection bureau at the local governmental levels is accountable to the local government - and not to an independent regulatory body such as the environmental protection ministry in Beijing. More than often, these local PE officials choose to turn a blind eye on the offender to avoid "ruffling the feather".

In short, despite of all the legislation, PE in China as of to date is nothing more than a farce.

Blueleaf.


都一个样

如果我们讨论这个环保法不成功这件事情,那么我们先要看看我们成功的立法以及成功被执行的法律是什么,这样就有了一个可以对比的对象,分析起来也就有礼有节了。

从文章看来,是我们的法律基本上都是这个样子,所以呢,个人认为这个也不是件特别值得大惊小怪的事情。我们的饼画得特别的大,我们的菜单做得很精美,只是我们没有料,也没有这个厨师,能够做得出来。我们呼唤的是适合我们情况的,能够执行的法律,哪怕小一些也没事。恐怕就只是这件事情,也会很难。

All part of the same issue

If we wish to discuss the failure of China' green laws, we should first take a look at laws which have been successfully enacted and implemented in China as a point of comparison, so that we can make a fair analysis.

From this article it can be seen that the problem is with our legal system as a whole. As such, I personally feel that it shouldn't really come as a great surprise that our green laws are useless. Grand designs and a fancy menu count for nothing if you don't have the ingredients or a chef to actually do the cooking. What we need are practicable laws for any given circumstances, no matter how trivial. I fear even this might prove too difficult.


中国的法和美国的法

法律都是人制定的,既然结果那么差强人意,想必也是人的问题,这个不能否认吧。为了了解这个问题到底出在哪儿,我研究了一下美国的Waxman Markey Bill,也就是所谓的Cap & Trade这个法律提案,虽然最近美国参议员否决了这个议案,不要紧,咱们可以参考参考。

真是不看不知道,一看吓一跳。这个法案长达1428页,覆盖了能源的方方面面,引述了很多(具体数量未知)的以前的法律和法规,从人才的培养,研究和科研计划到拨款,对能源部和环保局乃至教育部的要求,到相关具体行业(只要是水泥和钢铁)的现状调查,减排目标,财政补贴,都有详尽的说明,你不能不佩服这个美国人确实是厉害,虽然起草之前没人知道该法律提案能不能生效,人家还是考虑的很周到,而且不是一般的周到。

我也纳闷,提案能否通过八字没一撇呢,何必那么认真呢?劳民伤财,值得吗?这个我不理解,不理解就算了吧。再一想,反而明白了为什么美国有那么多律师(占了全球的80%),为什么律师那么赚钱,人家确实有水平啊!再看我们的新版《节约能源法》,短短的30来页,当然了也是面面俱到,字面上挑不出一个毛病,可是你总是感觉,不痛不痒,没有重点,所以实践中派不上用处实在不需要大惊小怪,本来也没叫你用嘛,有问题,请教政府来给你解释,想到这,我也就释然了。我们的法和人家的法不一样,虽然都是叫做“法”。不知道汪教授,如果屈尊看到这篇文章,会怎么想呢?

[email protected]
同济大学访问教授

Laws in China and in the US

Since laws are made by people, the failure of laws can be attributed to the law-makers, it's undeniable. To understand the root of the problem, I studied the American Waxman Markey Bill, which is also called Cap&Trade Bill. Although it has recently been rejected by US senators, we can still draw some lessons from it.

This 1428 pages long bill struck me with its detailed coverage of every aspect of energy, ranging from training for workers, financial support for R&D, the requirements of the US Department of Energy, Department of Environmental Protection and even Department of Education, to the investigations of the relative industries (cement, iron and steel), emission reduction target, and subsidies, in which numerous old laws and regulations are used for reference. You must admire these Americans for taking so many issues into consideration despite the fact that when they drafted the bill nobody knew whether it would have been approved.

I am also wondering why they drafted it so carefully when they weren't even sure about the Senate's approval. Is it worth such a waste of money? I don't understand. Forget it. On the other hand, I suddenly understand why there are so many lawyers in the US (they take up 80% of the total number in the world) and why they earn so much, it is because they deserve it!
Let's take a look at the new Chinese law on energy saving. It is only 30 pages long, but it covers all the issues and no mistakes can be picked out. However, it can be perceived as very superficial and lacking in content. Therefore it is natural if you don't find it practical, because laws are not for you to use. Any question should be sent to the government who will explain everything. I am relieved when I think of this. Despite being called the same, laws in China are different from those in other countries. What would Professor Wang, the author of the article, think of my comments?

[email protected]
visiting professor in Tongji University

(this comment is translated by Dong Hebing)


环保法庭

环保法庭什么时候才能建立呢???司法制度跟进才能让环境立法得以实施。

Environmental Courts

When will environment courts be set up??? Only then will the judicial system be able to implement environmental legislation.


环保法执行——一个笑话

原文最后一句的意思如下:
“总结起来,虽然中国不缺环保的法律,但目前看来,环保还不过是场闹剧。”

Our green laws are a joke

The meaning of last sentence of this article is as follows:
"In conclusion, although China does have environmental laws, for the time being at least, environmental protection is an absolute farce."


法律完全取决于法律后面的制度支撑

什么样的制度产生什么样的法律,也决定了如何来“实施”法律。This is another nail on the case for a thorough political reform. However, where is the ladder to the door of heaven?
[email protected]

the making of law depends on the system behind

The system of a society determines the law of it, as well as its implementation. 这是进行彻底的政治改革所必须面对的一个棘手问题。然而解决的方法是什么呢?[email protected]


有钱能使鬼推磨

解决的办法,至少是暂时的办法,就是钱。钱嘛,让人浮想联翩,不同的人有不同的想法。制度的改变时比环保更难的问题,环保的问题, 不一定总是要通过制度改变才能做到,因为那是个技术问题。我们中国有发展,先从包产到户做起,为什么?人喜欢钱嘛,人为财死鸟为食亡,无利不起早,关键是让看得见有钱赚,鬼都能推磨,何况人乎?阿门。

Money talks

The solution, at least say the temporary solution, is money. Money entails thoughts, but everyone has his own thoughts. It is more difficult to change the system or institution than to protect the environment. Environmental protection is a matter of technology, one that does not necessarily call for the change of system. China needs development, and it started years ago with the policy of contracting production quotas to individual households. Why? Because money talks. 'Birds die for food; people die for money.' No one is willing to take the initiative without the inspiration of money. The thing is you should let people see there is money ahead. In an ancient Chinese saying, 'money even talks to ghosts', not to mention to human beings. Amen.

Door to heaven

According to the Bible, the gate (or door if you prefer) to heaven is narrow. And wider gates lead to hell.
I hope the profecy does not apply to the world of energy and/or environment issues.

通往天堂的大门

圣经说,通往天国的“门”(不管你怎么称呼)是狭窄的。宽敞的大门只会带你到地狱。我希望这个预言不要发生在能源和环境问题上。


The blind leading the lame

In light of China's economic success (since the whole world agree on this) and also in light of the present state of the Chinese legal system, when comparing China and America, can we not draw the temporary conclusion that in actual fact, America's legal system is also not up to much? The U.S.A reportedly has the greatest number of lawyers in the world, and also the greatest number of criminals- reaching roughly 2.5 million people, causing an overcrowding crisis in prisons. From this perspective, is it not true that we can, for the moment, say that the American legal system and legislative behaviour is a complete waste of society's resources? Our own lax management and laws are at least partially effective. Looking at it from this perspective, it's a case of the the American blind leading the Chinese lame. China is lacking in some ways, but the USA is not necessarily much better.
To put it another way, if (and maybe this will never be realised) we had a legal system like the USA's, would we necessarily develop better, more advanced, and more sustainably than America? Is this line of thought more amenable to our nationalists?
Our neighbour, North Korea, is still in the middle ages, but it is a beautiful country, with free range chickens, ducks and organic food everywhere, and it has no environmental protection laws, no energy-saving laws or anything. Since their environment is better than that of America, should we be learning from the North Koreans?!
We've picked on the good example and the bad example, but where exactly should we go from here? Perhaps we should first resolve the "internal conflict among the people"

五十步笑百步

鉴于中国在经济上的成功(既然全世界人民都这么认为),同时鉴于中国法制之现状,如果对比中美两国,我们是不是暂时可以得出一个结论,那就是实际上美国的法制也不过尔尔?美国据说有世界上最多的律师,据说有世界上最多的罪犯-达到差不多250万人,导致现在监狱人满为患-从这个角度来看,是不是也可以暂时来说,美国的法制以及立法行为纯粹就是浪费社会资源?我们粗旷的管理和法律,也至少达到了部分效果。从这个角度来看,实际上呢,美国也就是五十步笑百步而已,中国是差了点,美国也不见得就好到哪里去。反过来说,假如(也许永远实现不了)我们有美国的这种法制,想必我们可以发展的比美国更好,更发达,更可持续呢?这个思路是不是更贴近我们的民族主义者的喜好呢?还处于中世纪的朝鲜,我们的近邻,山清水秀的,到处是土鸡土鸭和生态食品,也没有什么环保法节能法什么的,环境这点上比美国强多了,难道我们需要向朝鲜学习嘛?好学生,差学生我们都数落了,我们到底该怎么办?还是先解决这个“人民内部矛盾”吧。


The blind leading the lame

If we follow the example fo North Korea we would have to accept that substantial numbers of people starve to death as they did in the 1990s in North Korea. It might not be so easy to get the people of North America to accept that.

盲目导致无说服力

如果我们盲从北朝鲜的例子我们不得不接受相当数量的人们因饥饿而死,如同北朝鲜在1990年代做的那样。让北美的人接受这样的观点也可能会很难。

四十步笑百步:回答Yugong

我们肯定不会效仿朝鲜,但是我们肯定会效仿美国。至于美国吗,也需要好好反思到底怎么办。都不容易,这个步子一旦挪开了,想收回来,可不是那么容易的事了。所以需要突破性的思维才能解决这个棘手的问题。

The blind leading the lame and deaf

We will never copy North Korea, but we will definitely copy America. As for America, they also need to reflect on what to do. It's not easy - this step, once taken, is not easy to reverse. We need to have some breakthrough ideas before we can solve this thorny problem.

认知不同

感觉交流起来很困难,很多人对中国的情况不熟悉。中国不是你在网上看到的中国,中国需要用心去体会、揣摩、研究、追踪,才能了解中国之现状以及未来。

Getting to know our differences

I am starting to feel that communication is very difficult, and lots of people aren't very knowledgeable about what's happening in China. The China you see on the web is not China - you need to take the effort to experience, ponder over, research, and track things down before you can understand China's current situation and its future.

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