Long-awaited amendments to China’s Environmental Protection Law (EPL) are out – and surprisingly, they deliver. Apart from declaring environmental protection the country’s “basic policy”, the new law combines both hard and soft mechanisms to enforce China’s environmental regulations, a critical advancement if China’s declared “war on pollution” as mandated from the top is to be implemented throughout the country.
The amendments, which go into effect beginning January 1, 2015, mark the first change to China’s EPL in 25 years. Adopted in 1989, China’s original EPL was a product of its time. The law’s nebulous language made enforcement an unnecessary challenge. Moreover, the law left few channels for citizen participation when government officials or companies neglected their duties. As a result, changes to the law were a long time in the making.
The actual drafting of amendments did not begin until 2011, however, and the law underwent a rare four revisions before being adopted by the Standing Committee of the National People’s Congress. Between each revision, the government solicited feedback from environmental law experts, government bodies, local environmental protection bureaus, and even twice solicited feedback from the public. Such an unprecedented, wide-reaching consultation process exposed the law to vigorous public and private scrutiny, resulting in a law that has teeth.
But whether the new EPL will be effective in improving environmental conditions on the ground, allowing Beijing the right to claim victory in its “war on pollution”, rests primarily on its implementation. The good news is that as a starting point, the new law has set up powerful mechanisms for enforcement, combining strengthened hard mechanisms – legally binding environmental protection responsibilities and consequences for environmental violations – with soft mechanisms of public channels for participation in environmental protection.
Raising the stakes for bad behaviour
The new law contains a number of hard mechanisms for enforcement that present opportunities to tackle local protectionism, a perennial challenge for enforcement. In China, local governments enjoy relative discretion when addressing environmental issues. Local Environmental Protection Bureaus (EPBs), while tasked with implementing both national and local environmental standards, answer to their respective local governments, who control EPBs’ funding and key personnel decisions. The decentralised nature of environmental management requires local government compliance in order to meet and enforce national environmental priorities.
Under the new EPL, provisions giving local governments greater environmental protection responsibilities while formalising a system where local officials are assessed on environmental performance in their respective jurisdictions just might succeed in shifting incentives for local officials to prioritise environmental protection. As Alex Wang, a Chinese environmental law scholar, has argued, bureaucratic performance targets, more so than law, are central to motivating local government implementation of environmental protection measures.
Having environmental performance formally figure in the evaluation of officials represents a positive step for greater accountability of local officials, but for it to be effective in practice, environmental targets for officials must also be elevated. If such incentives fail, under the new EPL, local officials derelict in their enforcement duties can face demotion, dismissal, or criminal prosecution.
The new EPL also provides tougher punishments for violations of environmental law, and gives greater discretion to local officials to dole out punishments to polluters. Another major difficulty with environmental enforcement has been that maximum fines for flouting environmental laws were set so low so as to have little to no deterrent power: it was often much cheaper for polluting companies to pay the fine than to install or operate emissions-reducing equipment.
It removes caps on fines and introduces a daily penalties system for continuous environmental violations, opening the door for potentially substantive fines. Additionally, under the new law, EPBs now have the power to order companies that fail to meet requirements to eliminate or curb their pollution to suspend or shut down operations. All in all, these positive changes raise the cost of bad behaviour for both government officials and companies.
Strengthened tools for public participation
An effective environmental protection law is one that also includes “soft” channels through which the public may hold government officials and companies accountable for their environmental performance. To echo Alex Wang, public supervision reforms – particularly in public participation, transparency, and public interest litigation – “have the greatest potential to improve government accountability because they actually create a possibility for third party, independent monitoring and the increased likelihood of sanction for bad behavior.”
Significant progress on all three counts has been made with the new law. That the EPL now contains an entire chapter devoted to environmental information disclosure and public participation demonstrates the central government’s recognition that it needs public supervision to aid its environmental protection work. Under the 1989 EPL, the scope of public participation was limited, framing citizen participation primarily in terms of a right to “report on or file charges against units or individuals that cause pollution or damage to the environment.” The text of the new law legally enshrines the right of Chinese citizens to participate in environmental protection.
The new amendments’ provisions on transparency, the base for public participation, include requirements for corporations to release environmental information and for polluters to provide comprehensive and real-time emissions data. Environmental monitoring agencies and related facilities who are found to have furnished falsified data also face increased liability for their lack of due diligence toward polluting enterprises.
Public interest litigation was one of the most contentious issues of the amendment process. Despite its importance for environmental protection, there was no provision for public interest litigation in the original EPL. Now that the dust has settled, the new EPL establishes a legal basis for public interest litigation, and extends standing to bring public interest cases to a much greater than expected number of organisations.
While the second revision of the law limited public interest litigation to the All-China Environmental Federation – a national, government-organised NGO – the third draft expanded this right to social organisations. These are national organisations, registered with the Ministry of Civil Affairs, which have been continuously engaged in environmental protection work for at least five years, and have “good standing.”
Under the new amendments, these criteria have been whittled down to two points: social organisations must 1) be registered with the civil affairs departments at the prefecture level or above; and 2) have been continuously active in environmental public interest activities for at least five years and have no illegal offences on record. These conditions theoretically expand the number of groups that can raise public interest lawsuits from about 100 to as many as several hundred, although some NGOs have already expressed concern over the potential lack of clarity with the meaning of “prefecture level” registration, a condition which may disqualify groups registered at the district-level of important province-level municipalities, such as Beijing and Shanghai.
However, many issues with public interest litigation remain unresolved. For one, as individual citizens do not meet the criteria for standing for public interest litigation, individual citizens’ rights to sue will continue to be primarily limited to tort cases that represent only a portion of the harmful damage that pollution has inflicted on the Chinese public. Most significantly, it is still quite difficult for grassroots environmental NGOs to obtain legal registration as a social organisation. As a recent Economist article highlighted, it was only in 2011 that certain grassroots NGOs were first allowed to register directly with civil affair departments without first finding a sponsoring government agency.
Although this relaxation in restrictions was an important advancement for Chinese civil society overall, environmental NGOs were not included under the new rules and still must find a government sponsor in order to register as a social organisation. Government bureaus will often refuse such a registration and claim that a similar agency already focuses on the same realm of work. Environmental NGOs’ continuing uphill battle to obtain registration constrains both the development of the environmental NGO sector and related opportunities for environmental public interest litigation.
Law as a blueprint
The new EPL reaffirms the central government’s commitment to environmental protection and the elevation of its importance on the national agenda. As the law now states, economic development “must be coordinated with environmental protection”.
Consistency among laws is integral to their implementation. To avoid a key pitfall of the original EPL, China must find a way – starting with statutory interpretation – to clear up inconsistencies between the new EPL and its other environmental laws and regulations.
In many ways, the substance of EPL is a triumph: it addresses many of the old law’s major flaws and limitations and is an environmental law fit for purpose. But laws, no matter how well-crafted, lack agency. Implementation and enforcement of the EPL will require environmental protection officials to carry out their marching orders, and civil society and individual citizens to help keep them in check. China now has a solid blueprint for its war on pollution that provides the right kinds of incentives for all environmental stakeholders. It’s an EPL China can be proud of.
The content of this article does not necessarily reflect the opinion of the Natural Resources Defense Council. Responsibility for the views expressed lies entirely with the authors.