Books: legislation, crackdowns and the rule of law

China can balance economic growth with ecological values, but needs a strong legal system, writes Sun Youhai in Beyond Environmental Storms. Wu Jian asks if the country is ready to put one in place.
Beyond Environmental Storms – Studies on Environmental Legislation in China
Sun Youhai
China Legal Publishing House, 2008

The name Pan Yue is likely to come up in any conversation about China and the environment. Deputy director of the State Environmental Protection Agency (SEPA) – now renamed the Ministry of Environmental Protection (MEP) — since 2003, Pan has launched four crackdowns on environmentally damaging behaviour. Known in China as “environmental storms”, each crackdown has been more fierce than the last. But even this summoner of storms feels a bit helpless. As Pan himself says, the actual good they do is limited.

In China, ambitions for the rule of law are running far ahead of the reality, and it will not be easy to replace the current system of occasional sudden crackdowns with a stable and regular system of enforcement. Whether dealing with crime or social issues, China relies on slogan-led rectification campaigns, and the rule of law — associated neither with a specific person nor a specific time — is still struggling to take root. This leaves Pan in a difficult position: on one hand, he promises the news media that these efforts will continue; on the other, he knows that if they are not replaced with lasting and powerful laws, the root of the problems will remain. 

As the key power in a peacefully rising and globalising region, China is faced with ever increasing responsibilities and duties. But as a rapidly developing country, it also feels unable to cope with them. Thirty years of reform and opening up have been accompanied by subordination of environmental values to economic growth, leading even the highest of China’s leaders to admit that too high a price has been paid. Pan’s crackdowns may attract much attention, but local officials and industrialists are concerned with the economy and are happy to ride out the storms – which they know will pass. Officials are promoted based on their economic successes – and then their successors will take over. The ministry’s crackdowns will not change this.

Perhaps this book confirms the plight in which Pan Yue finds himself. But there is also hope. Almost a decade has passed since the rule of law became a strategic goal for the nation, and the process of system-building has continued unbroken since then. Sun Youhai, as head of the legislative office of the Environment and Resources Protection Committee of the National People’s Congress, has been at the sharp end of that process as it relates to the environment, and has described it in this book.

Environmental legislation in China has been hampered from the very start by the conflict between environmental and economic interests. China is a populous but resource-poor nation, and despite national policies on environmental protection being in place since 1980, local governments regularly overlook them for the sake of economic growth. The years that saw the strongest economic growth also saw the worst environmental damage.

China’s ratification of the Kyoto Protocol in 2002 and entry into the World Trade Organisation (WTO) in 2001 has brought international pressure on environmental affairs, spurring central government to greater efforts. Still, no national programmes to control energy use and pollution have been completed.

Sun Youhai looks at these facts in the context of his work, and discusses environmental legislation and its implementation. There is little new theory in the work, but Sun’s position means the book contains full and accurate material, and his point of view is crucial for those researching this field. The rule of law is not just an ideal state of governance – it is a social practice. Only when participants and observers put forth their own points of view and opinions in recording every aspect of this method of social governance can social realities be approached.

The book is divided into five chapters. The first is an overview of the author’s views on creating the mechanisms to protect the environment. The remaining four chapters cover legislation to prevent pollution, legislation for the circular economy, energy legislation, and property rights and environmental protection. Like Pan, Sun says “a strong system is better than crackdowns” and believes that “it is possible to have both economic growth and environmental protection”, and that “a balanced economy and ecological values” can “realise sustainable development”.

Of course, these ideas do not form the bulk of the book, which mainly looks at the processes of compromise and debate involved in environmental legislation in recent years, analyses the direction and prospects for China’s environmental legislation, and provides well-backed responses and suggestions. The author also reveals his own feelings in this volume; the views expressed in his papers on legislation for the circular economy are not all identical. Although this demonstrates an evolving understanding of the issue, it also represents necessary compromises. Legislation is a complex process, but the legitimacy of a law springs from public agreement. Environmental protection is not purely a government pursuit: it is linked closely to the life of each and every citizen. As the book says, the greatest obstacles to environmental legislation and its implementation are local and departmental interest groups. But this is not unique to environmental legislation – it is a feature of China’s current political systems.
After thirty years of reform and opening up, economic systems and markets are in place, yet the associated systems they need have not kept up and rule of law is only just getting started. This means that many issues are arising, intertwined, at the same time.
Moving beyond environmental crackdowns requires that these systems be permanent and regular. But are our government, our officials and our public ready for the permanent and regular rule of law?  

Wu Jian is the pen name of a PhD student at Tsinghua University’s School of Law