Cao Mingde, law professor at the China University of Political Science and Law, participated in the drafting of the revised amendment of the Environmental Protection Law. He spoke to chinadialogue ahead of its final publication.
chinadialogue (CD): Which of the changes in the "fourth draft amendment” are particularly noteworthy?
Cao Mingde (CM): The basic principles behind the Environmental Protection Law underwent major revisions as the underlying legal concept was transformed. This new law will establish the principle that environmental protection comes first. This stands in contrast to the previous requirement that environmental protection work be coordinated with economic and social development, and the current regulation requiring economic development to be coordinated with environmental protection.
The instruction to "hold fast to the ecological red line" made at the 18th National People's Congress was written into the current draft of the law, reflecting the government's intention to hold onto "ecological security" baselines. This allows for the legalisation, institutionalisation and specification of the propositions made by the 18th NPC. Also, as a first, the draft amendment proposes that the government establish a compensation mechanism for sound ecological protection that would provide the legal basis for implementing future ecological compensation.
The draft says that major polluting companies must make the following information publicly available: main pollutants, methods of discharge, concentration and amount of emissions, excess emissions, as well as construction and operation of pollution prevention facilities. Those breaking the law will bear responsibility. As for environmental monitoring institutions, as well as organisations that set up, maintain and operate environmental monitoring equipment and pollution prevention facilities, if found guilty of deceptive behaviour, they will be held jointly liable. With regards to information disclosure to the public, these are big, important steps.
Another addition to the new law concerns "integrated prevention and control". The draft proposes that the government establish key areas cutting across administrative regions to integrate prevention and coordination systems for watershed pollution and ecological damage, as well to carry out unified planning, standards, monitoring and prevention measures. This integrated prevention and control is not only useful for alleviating air pollution, but also for curbing water pollution and ecological damage.
CD: An important reason for continued environmental degradation is that the cost of breaking the law is low, while abiding by the law is expensive. Can the new law solve this problem？
CM: The "per day calculation" [for fining polluters] suggested in the draft will strengthen punishment for environmental noncompliance. This is something Chinese academics have long called for and the Ministry of Environmental Protection has worked tirelessly to get. In the previous law, the penalty for polluting companies was relatively modest and only one-off.
In the fourth draft amendment, enterprises, public institutions and other production managers that illegally emit pollutants will be fined and ordered to correct their behaviour. If they refuse, according to the new law, the administrative body can continue to penalise the pollutant each day using the original fine rate, starting from the day after they ordered the correction.
CD：How does the new law define the authority and responsibility of the environmental protection administration？
CM: This round of revision has greatly strengthened the legal powers of environmental protection agencies in areas such as enforcement and execution – closing down, seizure and detention. This is unprecedented. Environmental protection is no longer the weak administrative area of early days. It now has stronger law enforcement authority.
In addition, an approval system for regional restrictions has been written into the draft, equipping environmental protection agencies with a stronger bargaining chip to coordinate regional emissions. If total emissions exceed the standard, the agency will have the power to refuse any new project which increases pollution to the region. For regions where total emissions of national key pollutants exceed the standard, the environmental agencies will be able to halt the approval process of environmental impact assessments of related projects. At the same time, the draft proposes that the government implement a pollution permission management system. Enterprises and public institutions, as well as other emitters, should discharge pollutants only in accordance with such permissions.
There are some weaknesses in the existing law governing environmental impact assessments. Many construction projects commence without submitting environmental impact assessment documents, or the process is flawed. Under the existing law, where projects fail to submit environmental impact assessment reports, the environmental agency can only order that construction stop and the environmental impact assessment be carried out. If the companies do not make up for the assessment, they can be fined a maximum of 200,000 yuan. For some companies, especially big state-owned enterprises, it’s worth it simply to pay the fine rather than commission an environmental impact assessment. So they don’t complete an assessment until construction is finished. In contrast, the new draft proposes that environmental agencies can stop construction of projects without environmental impact assessments, impose a fine and order them to restore the site to its former conditions.
CD: The conditions for environmental public interest litigation set out by this law have attracted much attention. After four reviews, has the scope of environmental public interest litigation expanded？
CM: This review of the draft has again expanded the scope of environmental public interest litigation, granting social organisations registered with the civil departments of governments above city level in selected areas to initiate public interest lawsuits. Also, the people's courts should accept lawsuits filed by social organisations complying with all regulations, but these organisations must not draw profits from the lawsuits.
The involvement of environmental NGOs could massively alleviate problems faced by environmental protection agencies such as insufficient staff and resources as well as weak law enforcement power. This heeds the call of premier Li Keqiang to declare war on pollution. But in my opinion, what exactly is meant by "city" is unclear; there are different city levels: provincial-level cities, local-level cities, prefecture-level cities and county-level cities.
CD: How could the law further be improved？
CM: The provisions regarding lawsuits against environmental enforcement authorities are still murky. The current environmental public interest litigation allows only for lawsuits to be filed against polluters. As of yet, one cannot file lawsuits against authorities that fail to enforce laws, do so poorly or in illegal ways.