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Environmental protection in China: the role of law

Alex Wang

Readinch

China’s growing rule of law and public environmental awareness show promising initial signs of success. But will it be too little, too late? Alex Wang investigates.
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In a rural village, set on the edges of a narrow mountain valley, a group of farmers go to court seeking relief from industrial pollution that has threatened their health and destroyed the crops that are the basis of their livelihoods. The defendants are two local factories that use a primitive industrial process to reduce copper ore. The process generates massive amounts of smoke and stench that decimate much of the surrounding forests and crops and cause local residents chronic headaches and coughing. The farmers ask for compensation and a court order halting the pollution. The court refuses to order a stop to the polluting activities because such an order would “blot out two great mining and manufacturing enterprises, destroy half of the taxable values of a county … and deprive thousands of working people of their homes and livelihood.”

This is a story that is all too familiar in China, reflecting the persistent distance between environmental degradation and a legal system struggling to keep up with a rapidly changing economy. This particular story, however, does not come from China at all. Rather, it is the 1904 US case of Madison v. Ducktown Sulphur from the state of Tennessee. As in China today, the industrial revolution in the United States brought with it increasing harm to the public from pollution and greater environmental conflict. In the early part of the 20th century, the US legal system was not up to the task and the country muddled through decades of inadequate environmental regulation and often unsatisfactory court decisions. It was not until the 1970s that the US passed a series of robust environmental laws and opened the door to a generation of environmental advocates who would use law and the courts to improve the environment. 

There is some comfort in knowing that developed countries like the US, Japan and England were able to reverse decades of environmental degradation. The difficulty is that China’s environmental problems are moving faster and on a larger scale than anything the world has ever seen before. 

How can China remedy its environmental problems given the pace and scale of change? Are there lessons to be learned from the international community? Growing rule of law and public environmental awareness are showing promising initial signs of success. However, if China follows the example of the US in taking decades to mobilize its legal system against its environmental challenges, it will likely be too little, too late. 

The US context

China is just beginning to experiment with many of the legal tools that helped to improve the environment in the US. The modern era of environmental protection and law in the United States began with such seminal cases as Scenic Hudson Preservation Conference v. Federal Power Commission (1965) and Sierra Club v. Morton (1972), which broadened the ability of the public to use the courts to protect environmental interests and clarified the ability of environmental groups to sue on behalf of their members to protect the environment.

Commencing in 1970 with the passage of the National Environmental Policy Act, the US Congress passed a robust series of environmental laws designed to address a wide range of environmental problems affecting air, water, waste, endangered species, etc. These laws also strengthened public enforcement through the inclusion of citizen suit provisions. Citizen suit provisions allowed the public (including environmental groups like NRDC, Sierra Club and Environmental Defense) to sue as “private attorneys general” to enforce against violations of the law by polluters and failure by government agencies to carry out required duties under the law.

Citizens could now use lawsuits to seek injunctions and fines against polluters and force government to act. These new legal tools played a major role in improving the environment in the US.

The Chinese context

In China, more than three decades of rapid industrialization have created enormous environmental challenges. The problems are, by now, well known. Seventeen of the 25 most polluted cities in the world can be found in China. Three-hundred million people, a population larger than that of the entire United States, do not have access to safe drinking water. China’s carbon dioxide emissions may surpass US levels as early as 2009. An estimated 300,000 people die prematurely each year because of China’s air pollution beyond legal standards. The government’s own estimate puts the initial cost of environmental clean-up at a minimum of US$135 billion

As a result, environmental disputes are on the rise. In 2005, there were some 51,000 disputes over environmental pollution, according to State Environmental Protection Administration (SEPA) minister Zhou Shengxian. From 2001 to 2005, Chinese environmental authorities received more than 2.53 million letters and 430,000 visits by 597,000 petitioners seeking environmental redress. Officials have expressed concern that China’s environmental problems are a leading threat to social stability.

For China, the challenges of using the law for environmental protection are formidable. Unlike the US with its long history and culture of using law and the courts, China essentially began in 1979 to rebuild anew a legal system that had been entirely dismantled in the previous few decades. China’s court system remains weak, with poorly trained judges and regular intervention in cases by local governments that often have a financial interest in polluting enterprises. Moreover, Chinese environmental laws are often lacking in effective enforcement provisions. 

Environmental law in China

Since the passage of the draft Environmental Protection Law in 1979, China’s environmental law framework has grown to include more than 20 major statutes and countless State Council regulations, standards and other legal-norm-creating documents. The major laws include the Air Pollution Prevention and Control Law, the Water Pollution Prevention and Control Law and the Environmental Impact Assessment Law.

Laws now cover forestry, fisheries, wildlife protection, marine areas, desertification prevention, clean production, solid waste and numerous other areas. The amount of work put into developing a legal framework for environmental protection has been impressive. It is now received wisdom that China’s environmental laws are relatively complete and that enforcement is now the real problem. This is true in part. However, like early US environmental laws, China’s environmental laws, though broad in coverage, still suffer from weaknesses that limit their effectiveness. Provisions are often vague and more akin to policy statements. They frequently “encourage” rather than “require.” Perhaps most importantly, enforcement provisions are often extremely weak. 

The Environmental Impact Assessment Law (EIA Law) offers a good example of this. The EIA Law requires an environmental impact assessment to be completed prior to project construction. However, if a developer completely ignores this requirement and builds a project without submitting an environmental impact statement, the only penalty is that the environmental protection bureau (EPB) may require the developer to do a make-up environmental assessment. If the developer does not complete this make-up assessment within the designated time, only then is the EPB authorized to fine the developer. Even so, the possible fine is capped at a maximum of about US$25,000, a fraction of the overall cost of most major projects. The lack of more stringent enforcement mechanisms has resulted in a significant percentage of projects not completing legally required environmental impact assessments prior to construction.

The allowance for “make-up” environmental assessments creates a loophole around the fundamental raison d’etre for environmental impact assessment (i.e., to build environmental considerations into the development of projects and plans before they are completed). Chinese environmental officials and scholars are well-aware of these weaknesses in the law and openly acknowledge that they are the result of compromises in the legislative process and concerns about limiting economic growth.

Despite these problems, there are signs that law and public advocacy will begin to play a larger role in China. China’s leaders increasingly speak of “ruling the country according to law,” enshrining the principle in the Constitution in 1999 and, as Randall Peerenboom has noted, “there is considerable direct and indirect evidence that China is in the midst of a transition toward some version of rule of law.” Moreover, as environmental consciousness increases, people in China are beginning to turn to the courts and the law in general to advocate for their rights. Cases handled or supported by non-governmental organizations, GONGOs (government-organized NGOs) and “public interest” lawyers are an influential, though still limited, aspect of this phenomenon.

The Center for Legal Assistance to Pollution Victims (CLAPV), a Beijing-based environmental law NGO, is perhaps the best-known of a new generation of environmental legal advocates. The Center recently helped a group of nearly 2,000 farmers in Fujian Province win a judgment against Asia’s largest potassium chlorate plant. Since its inception in 1999, it has handled over 70 cases and obtained favourable results in nearly half of them. The government-sponsored All-China Environment Federation (ACEF) has taken on 23 environmental matters covering over 3,000 people since its founding in 2005, according to media reports. In Yunnan Province, an environmentalist named Li Bo has established a centre for rights-based environmental conservation advocacy in the wake of a successful campaign to protect indigenous land rights against illegal tourism development in the Tibetan village of Jisha. Professor Wang Jin and several other professors and students at Peking University Law School brought a novel suit on behalf of the Songhua River, a species of fish, and an island in an ultimately unsuccessful attempt to press for relief with respect to the Songhua River benzene spill in 2005. 

Some of these disparate efforts have shown promising initial success. However, public interest litigation of this sort requires the expertise and funding that only comes from the creation of more established, well-funded organizations dedicated to the work. To make public interest litigation more effective, laws and policies will need to be instituted to encourage the development of environmental public interest law organizations, such as CLAPV. 

Another promising trend is the advent of informal local community coalitions turning to legal advocacy to protect their interests. The White Swan Residential Development in Guangzhou opposed the construction of high-voltage transmission towers only a short distance from residents’ homes and discovered clear violation of the EIA Law’s requirement to conduct an environmental impact assessment prior to construction. The residents, who feared the health and property value impacts of the transmission towers, filed suit and used the attention garnered by the lawsuit to lobby various levels of government and ultimately obtain an agreement by the power company to bury the offending power lines.

Similar cases have arisen in Beijing, Hangzhou and elsewhere and the communities have informally provided each other with strategic advice. The Bai Wang Jia Yuan Residential Development case in Beijing involved transmission towers built in anticipation of the 2008 Beijing Olympics and, while ultimately unsuccessful, led to the first public hearing on environmental impact assessment pursuant to the new Administrative Licensing Law. In another case, a residential community in Shenzhen opposed the construction of an underground traffic tunnel between Hong Kong and Shenzhen because the exhaust outlets were located too near to their homes. Several residents examined the environmental impact statement for the project and, suspecting errors, conducted their own environmental impact assessment. The new assessment found grave inaccuracies in the original report and dangerous levels of pollution in violation of relevant environmental standards.

As in other jurisdictions, even where Chinese court cases are ultimately unsuccessful, litigation has often served as a catalyst to negotiated solutions or government enforcement. An example of this was an administrative lawsuit against an environmental protection bureau in Hebei Province for approval of a highly-polluting plant that refined silver from film sludge. The case ultimately resulted in two court rejections on lack of standing grounds. Nonetheless, the plaintiffs’ advocates used the court case to highlight gross errors in the approved environmental impact statement (EIS) and caused SEPA to suspend the firm that authored the EIS and render the EIS invalid. Without a valid EIS, the factory was ordered to cease operation and remains shuttered.

Public interest litigation in China

The Chinese government has recognised the value of environmental litigation and sectors of the government are exploring the possibility of establishing some form of public interest litigation. The State Council last year issued a decision on environmental protection that specified “public interest litigation” as a favoured tool for environmental protection. It is unclear what form such litigation will take. One proposal is to make the procuratorate (now authorized to bring and supervise criminal cases) a permissible plaintiff in public interest litigation. Some officials in SEPA have considered a public interest litigation framework that expands individual and NGO standing to bring suit in the public interest, particularly in cases for which there might be no other plaintiffs (such as harm to endangered species or damage to national forests). A system that allows both government and public litigation to protect the environment would, however, be optimal. The sheer magnitude of China’s environmental challenges requires a broader system that includes government litigation and wider support for public citizen enforcement. The US long ago recognised that citizen litigation could provide an indispensable supplement to scarce government enforcement resources and serve to supervise recalcitrant government agencies as well. SEPA, with some 300 employees at the national level, suffers from an even greater lack of resources and could benefit even more from enforcement assistance from the public.

Environmental law and public involvement in enforcement have played a constructive, and indispensable, role in environmental protection in the US and other countries. The environmental challenges in China today are immense, but so are the opportunities for environmental improvement if the legal tools and involvement of the public, so effective elsewhere, can be harnessed in the name of environmental protection.


Alex Wang is an attorney and director of the China Environmental Law Project at the Natural Resources Defense Council.

Homepage photo by Mosquito Photography

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中国的环保法制急需完善!

中国急需完善它的环保法制,刻不容缓!

China needs to improve its environment laws.

China is in dire need to improve its environment laws. There is no time to delay doing so.


行动太少,太晚了

中国的环境问题已经变得很严重了。它们是可以纠正的,但代价已很高了。我认为有两方面的问题:一是官员们依然因发展经济而受到奖励,无论他们是否在保护环境。 我没有听到这会改变的新闻。

除非严格惩罚放任污染的政客们,否则没有激励机制来实施现存法律,更不用说新的法规了。

二是官员们没有尽责任来照顾他们的人民。

在前几周的星期日时报上登载的民意测验表明,在受污染地区的普通人民把洁净环境最为首要要解决的问题,尽管这意味着放慢发展。然而,官员的想法完全相反。

他们高枕无忧,认为反抗他们将是遭逮捕的理由。近来的事件还说明了,即便记者的生命也不安全。

由于这两个原因,官员们没有理由来改变他们的观点。有经济增长,他们就不会受到惩罚。受环境污染之害的人民不可能段了他们的官路。

中国的环境不会有显著的改善,除非不解决污染的官员受到惩罚,或者授权人民来对环保采取行动。

放对这样做的人可能生活在污染轻微的地方,他们想让穷人来受污染只苦,而他们自己却过着安逸的生活。这是完全错误的。Raj

Too little, too late

China's environmental troubles have already become critical. They can be rectified, but the cost is already very high, cutting entire percentage points off annual growth.

The problem I see is two-fold. One, officials are still rewarded for high economic growth, whether or not they also look after the environment. I hear no news that this will change. Until politicians are directly penalised for letting polluters run rampant, there will be no incentive to enforce laws that already exist, let alone new ones.

Second, officals are completely unaccountable to the people they should be looking after. In recent weeks, the Sunday Times published opinion polls that suggested that ordinary people in polluted areas deem prioritising cleaning up the environment the overriding priority - even if that means slower growth. Yet the officials had the complete opposite view. They can rest easy in the knowledge that even protesting against them is grounds for arrest - and there's always hired thugs to "sort out" the ringleaders. Even reporters are not safe, as recent events show.

So in two ways, there is no reason for officials to change their attitudes. They won't be punished if growth is high and they can't be voted out of office by people that suffer. And if anyone takes to the streets, they can lock them all up, or arrange an "accident" for those in charge. The environment in China will not begin to noticable improve until either the central Party punishes officials for not tackling pollution, or the people are empowered to take action themselves and given legal protection for doing so, or telling their stories in public.

Anyone who argues against this is probably doing so because they live in a less polluted part of the country and want the poorer classes to suffer so they can have an easy lifestyle. That is completely wrong.

Raj


关键的是执行,懂吗?

最近五年中,中共迈了很大的进步以制定更明确的环境法规,而且这些法规由此更容易执行。问题就是SEPA及其地方分部在政府之内缺乏人力资源及制度能力(即资金及政治权力)以执行它们自己制定的规则。我认为我们都希望SEPA在今年秋季将举行的第17届国家大会上会进一步提高它的地位,包括既国家的总部又那些积极地从事执行的地方分部。短期的政治活动再也没有效果:我们尽快要严峻地执行已经制定的规则!

It's the enforcement stupid !

The PRC has come a long way in implementing far clearer and therefore easier (in theory) to implement and enforce environmental laws in the last five years. It's SEPA and their local EPB's lack of human resources and institutional capacity within the government ($$$ and political clout) to enforce their own laws.

I think we all hope that this Fall's 17th National Congress will see SEPA's role become greatly enhanced all the way from National all the way down the line to the local enforcement bureaus where enforcement actively happens. Enough of these short term political campaigns: it's high time to start vigorously enforcing the laws already on the books !


在中国"完善环境法制"是个忽视文化和制度"差异的提法

在中国,法制,或者进一步的法治,是应该提倡的.但是,从解决实际问题的角度,是"隔靴搔痒'之举.

在中国,法律是高度政策导向和弹性的.比如,布什总统拒绝签署,尚且不论其如何不环保,在后面有一个基本的原因,签署的法律在美国是被要求严格执行的.而在中国,这法律可以有,但是执行似乎历来滞后,甚至不作为.何况是环境保护的法律.

我认为,眼下中国环境问题的改善,首先不是完善环境法制的问题,而是从政治体制层面,根据中国国情,研究和发展如何去构建适合的环境政治解决机制的问题.好象是从零开始,但却是真正符合逻辑和事实的.而不是,从国外嫁接好多无法结果的法律枝条来.

-全球环境研究所 高级项目开发官员

How effective to improve environmental law in China?

I agree that the rule of law should be strengthened in China.

But this attempt is only an ineffective solution in practice when talking about efforts in environmental protection.

Not to comment on if the US is pursuing green policy or not as the Bush Administration declined to sign on the Kyoto Protocal. If the U.S. accepted the agreement, it is definitely to be strictly implemented in that country.

But this probably will be a different case in China. Laws exist in China, but it is possible for them not to be implemented. There is no exception with environmental laws.

Personally I think to tackle China’s environment issues, the key efforts should focus on building a better political system to deal with the issues, instead of improving environmental laws. This means China needs to make efforts from scratch. This is an effective solution applying to China’s situation, because to graft foreign countries’ laws onto Chinese practices will prove to be a failure.

by senior programme development office of the Global Environmental Insitute


我认为是地方政府的不作为和只追求眼前利益造成的

比如在一些主要以矿产为主的省份,矿产是这里的主要经济来源,地方政府为了追求本地区的经济收入最大化,根本不管环境破坏,所以造成大量的植被被破坏,而其他的土地又是农民种植地,到春季时农作物还没有成长起来时,春风一刮,那就成了昏天黑地了.
当然了,这几年随说引起了重视,可是过去的破坏已经很难修复,而且破坏也只是放慢罢了,而不是在改善.

I think it is due to local governments' incompetence and single-minded pursuit of immediate profits

In some provinces that rely mainly on the mining industry, for example, the mining industry is an important source of economic revenue. Local governments pursue a path leading to the best possible income growth for that particular province. Whilst doing so, they basically do not consider the damage done to the environment, and thus cause large-scale destruction to the vegetation. When spring arrives, before the crops have broken through the soil; as soon as the spring breeze blows over the earth and arable land, the dusty soil is picked up and turns the air dirty. Naturally, this has received some attention over the past few years. But it is very difficult to reverse past destruction, or bringing environmental degradation to a halt. What's more, the situation is not improving.


中国旅游业

据世界旅游组织(WTO)预测,到2020年,中国将吸引1.37亿国际游客,取代法国成为世界最大旅游目的地,晋升世界旅游强国之列。但是,伴随着旅游业的快速发展,由于旅游资源开发保护和组织管理不当所造成的环境污染、生物圈破坏、资源过度消耗等问题使优势产业的发展陷入困境。旅游业发展前进的基础是旅游资源,如果被破坏了,旅游业就成了无源之水、无本之木。所以,保护旅游资源不受破坏,使其能被永续利用,实现旅游业的可持续发展,是发展旅游业的生命线。

Tourism in China

According to the forecast form WTO, China will attract 1.37 billion of tourists from all over the world by 2020, this will replacing France as the most popular tourist spot in the world, and becoming the Strong Tourism Country in the world. With such a rapid grow of tourist industry, however under improper care of tourism resources development and organizational management, are lead to environmental pollution, disruption of biodiversity, excessive consumption of resources and other relevant issues caused those superior industries encounter difficulties in development. The foundation for tourist industry to progress further depend on tourism resources, if it has been destroyed, tourist industry will becoming water without a source, and a tree without roots. As such, tourism resources has to be conserved in continuing its contribution to tourist industry, to achieve sustainable development, as it is the lifeline in developing tourist industry.


环境资助

你好,很高兴拜读了阁下所有关于环境历史的文章,完成这些花费了不少的时间。我们是Mada 环境项目,在此真诚的希望阁下能资助我们些许资料,因为我们才刚刚起步,同时也希望能成为阁下的合作伙伴。
十分感谢— Lukobi-Johnson

Enviromental Funding

Hello I am very much happy to read all about your Enviromental history it take much time to a achieve a lot. We are Mada Enviromental project we are asking you kindly to fund us with some martrials as we are just a baby rising up and also want to be a partnership with you.
Thank
Director
Lukobi-Johnson


盲目追求突然的改善

尽管世贸组织宣布2020年中国将成为世界第一大旅游目的地,但是中国仍在绿色环境问题上挣扎,我猜该不是世贸组织说的。

In blind pursuit of sudden improvment

Even if the WTO declared that by 2020 China will be one of world's number one travel destination, at that point China will still be agonizing over its environmental issues. I'm guessing the WTO didn't say this.


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