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