Books: a guide to Chinese eco-law

Charles R McElwee’s Environmental Law in China is a landmark work, a must-have primer for companies and others with an interest in protecting China’s environment, writes Joel B Eisen.

Environmental Law in China: Mitigating Risk and Ensuring Compliance
Charles R McElwee
Oxford University Press, 2011

“Poor air quality.”

“World’s largest emitter of greenhouse gases.”

“Rivers people can’t drink from.”

“Horrible industrial disasters.” 

We have heard all this, and more, about China’s environment. In the west, what one hears next is far too often something like, “And without the rule of law, nothing is done about it.” Many western observers are surprised that there are environmental laws in China with familiar structures, and that they claim some limited successes. The greatest paradox of China’s environmental laws is that they are well developed on paper, but have largely not been implemented and enforced effectively.

Should one be cynical or optimistic about this? Getting at the heart of this matter is a Herculean endeavour. Chinese legal texts are often ambiguous, speaking in sweeping generalities, and official English translations are hard to come by. And, of course, China is not a democratic republic, and its bureaucracy rarely provides the rich public gloss on its legislative and administrative pronouncements that one sees in the west. Even well-intentioned observers struggle to discern the meaning and impact of China’s environmental laws. What, then, is the “law”? How should companies operating in China decide what these laws mean, or how to comply with them if they are so inclined? No easy answers there.

All this is well known to Charles R McElwee, the author of a comprehensive new book, Environmental Law in China: Mitigating Risk and Ensuring Compliance.With his years of law practice in China and his experience as the author of the China Environmental Law blog, McElwee knows this body of law’s usefulness and shortcomings. He can hardly be accused of looking through rose-colored glasses in addressing its central inconsistencies. On his blog, he asked tough questions about the Chinese government’s pronouncements.

With a positive spirit about China’s efforts to improve its air and water, combined with a healthy scepticism about what Chinese national and provincial governments can and cannot accomplish, McElwee earned a substantial following by sweating the hard details about this evolving body of law. His writings show a depth of thought about important issues that surpasses that of many other analysts.

McElwee brings his clear-eyed realism to Environmental Law in China, which is the first book of its kind and sure to become a staple on desks around the world. Consider this statement: “China has a relatively well-crafted environmental legal system that could be used, if the will were there, to significantly clean up China’s environment. The goal of this book, however, is not to offer universal solutions, but to help keep those with operations in China from becoming part of the problem.” 

Note the deft juxtaposition of “relatively well-crafted” with “could” and “if the will were there”: McElwee knows these laws have potential, but have yet to reach it. And, by eschewing “universal solutions”, he demonstrates the folly of providing definitive answers about an inherently ambiguous system. A more thoughtful framing of the issues would be difficult to imagine. As for transparency, McElwee offers this gem: “public disclosure does not come easy to many Chinese agencies, including the environmental agencies”. 

The book is oriented first and foremost to those who would do business in China, as its subtitle suggests and as McElwee makes clear right from the start (speaking to “those with operations in China”). Given its intended audience, Environmental Law in China reads more like a primer than an academic treatise. This differentiates it from the best existing book on China’s environmental laws, Benjamin van Rooij’s Regulating Land and Pollution in China, an outstanding work that gives depth and meaning to the legal system using excellent case studies, but would be poorly suited to use as a day-to-day reference work. 

Environmental Law in China begins with chapters on China’s environmental history, governmental structure, and processes of national and local environmental lawmaking. The central chapter — Chapter 8 (“Operational Compliance Obligations”) — covers a full third of the book, detailing the air and water pollution laws, environmental impact assessment process, solid- and hazardous-waste management laws, fee and permit systems, “three simultaneous” requirement, clean production audit system and much more, with the emphasis on compliance. Subsequent chapters deal with such matters as hazardous substance regulation, China’s new electronic-waste laws, the system of new chemical registration, the structure of criminal and civil liability in China, and the system of environmental courts.

If McElwee had simply catalogued China’s environmental laws and described the roles of the many actors responsible for their implementation, that alone would have filled a great need and made his book indispensable. However, he has also done yeoman’s work in trying to help the regulated community understand how to minimise risk and comply with this system of laws. As the cliché goes, he “thinks like a lawyer”.

McElwee rightly cautions that having this book is no substitute for taking the steps to comply with applicable laws, as difficult as that might be. He may not have all the answers for the increasing ranks of companies that seek to do business in China without running afoul of the law (and frankly, no one does), but he frequently offers perceptive advice, helpful guidance, and thoughts about the system’s potential to grow and change. 

The chapter on environmental civil liability has an excellent example of the last of these. McElwee writes:

“In the Supreme People’s Court’s Judicial Interpretation on Several Problems in the Applicability of the Civil Procedure Law it reaffirmed this position that the defendant has the burden of disproving any of the plaintiff’s claims that it disputes.

“How this burden allocation operates in practice is not very clear. Does the plaintiff only need to show, for instance, that he lives in the vicinity of a facility and has a type of cancer that may be caused by the type of pollutant discharged from the facility to shift the burden to the defendant to show, for instance, that the low dose or absence of relevant exposure pathways rules out its discharges as the cause of plaintiff’s cancer?

“That appears to be the burden placed on a Korean cosmetic brush manufacturer in Hebei Province in a recent case involving benzene emissions (which, it should be noted, were within applicable discharge limits) … Damage awards are still relatively small, but this is an area of great potential concern for companies operating in China.”

Besides its utility to practitioners, Environmental Law in China is a gold mine for any researcher or teacher of this subject. In many ways, it is to the literature about China and environmental protection as the pioneering environmental casebooks of the United States in the 1970s were to materials appearing before then. Anyone teaching environmental law at that time relied on homemade materials, mimeographed and pulled together. The same is true of discussing China’s environmental laws today, although, with the Internet, the equivalent would be a haphazard collection of laws, papers from websites and so forth. 

In one move, McElwee’s encyclopedic coverage makes this sort of ad hoc compilation a thing of the past. And, like the early American environmental law casebooks, there is an unmistakable dual purpose about Environmental Law in China. To collect analyses of China’s environmental laws in one place is to demonstrate to would-be sceptics that they are an increasingly coherent body of law, notwithstanding qualms one might have about implementation, enforcement and other limitations.

In a book this strong, finding shortcomings is difficult, and suggestions are more in the nature of possible enhancements for future editions. It would be helpful if there was a cross-cutting case study, even if hypothetical, to give an environmental lawyer with Chinese clients a sense of how different laws might interrelate and apply to specific situations.

Environmental lawyers are accustomed to thinking of their clients as facing problems or concerns across many media (air, water, etc), and it would be useful to orient some of the text in this fashion. Also, it might be desirable to include more material on China’s energy laws and climate-change efforts (both of which do receive brief mentions in Environmental Law in China), although their omission is understandable given the focus on compliance with obligations most comparable to western command-and-control schemes.  

It can be challenging to develop a critical mass of understanding of China’s legal system, but this book comes as close as any. It will have an immediate, long-lasting impact on how we think about environmental law in China, and that phenomenal achievement makes Environmental Law in China a landmark work and a must-have for anyone with an interest in protecting China’s environment.

Joel B Eisen is a professor of law at the University of Richmond School of Law in Richmond, Virginia (US).