China’s revised Air Pollution Law has made changes almost every major article, after passing through three separate hearings and doubling in length from its original version.
As part of its war on pollution, China's government is trying to give environmental inspectors stronger powers and more resources to take action against persistent polluters and the local governments that are blamed for protecting them.
Several new elements have been added in the revised law, including articles about regional prevention and control of pollution, an alert system that gives warnings on weather conditions that worsen smog, and limits on particular levels of polluting compounds, particularly in vehicle fuels.
Yet, for many, the revamped law is disappointing. The code fails to enshrine a basic right for China's public to have clean air, and lacks a system for environmental public interest litigation, said Chang Jiwen, deputy head of the Resources and Environment Policy Institute, part of the State Council's Development Research Centre.
Furthermore, the new law is compromised by an emphasis on government statements to tackle air pollution, rather than a platform for broader, tangible action taken by NGOs, class action lawsuits and judicial oversight.
Chang believes the legislation should be enforced through government powers, rather than just expressions of intent. The emphasis on enforcement, absolutely critical in China where edicts are often ignored at local level, is very much a secondary consideration in the new law on air pollution, he says.
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The revamped law includes language such as ‘the state shall…’, ‘the state will…’, and ‘local governments shall take measures to…’ And the new code lacks timetables or roadmaps for implementation. If government departments do not put plans in place or take necessary measures to implement the law, there are no legislative means to punish or force polluters to take action, Chang adds.
A comprehensive and robust system is needed that allows public participation, oversight and systems put in place, but at the same time constrain overzealous regulation and opportunist actions designed to garner approving headlines. But the new law does not do this, so China is likely to see a continuation of selective crackdowns
, experts conclude.
The lack of a cap on coal is another drawback, says Greenpeace’s climate and energy campaigner Liansai Dong.
A cap on coal could have provided a legislative anchor to restrict the consumption of the highly-polluting fossil fuel, and helped lower smog levels, Dong points out.
However in later versions of the draft, the proposal was deleted, leaving open a loophole for coal-burning industries to operate without serious pressure from the courts and other areas of enforcement.
Instead, the law requires local governments to ban low-quality coal for residential use, a measure deemed far less effective than setting a cap on industry, which accounts for around a half of China's coal use.
But experts add that there are positives in the revised law. It establishes a closer link between smog and environmental degradation than previously. In the past, the focus was on measures taken, rather than accountability on meeting particular environmental quality targets.
The new law clarifies the link between air quality and the total emissions of pollutants, and provides a legislative foundation for the 2013 air pollution action plan.
Chemicals and shipping covered
The revised code passed last week also regulates volatile organic pollutants, such as pesticides, solvents, pharmaceuticals, and introduces stricter controls on emissions from shipping
. It also strengthens pollution warning systems, and improves links with the Environmental Law
, an overarching piece of legislation that came into force earlier this year.
The Environmental Law is often described as China’s toughest ever because of higher fines and sharper teeth for courts
, but in some ways, the new air pollution law could be said to be even more onerous for polluters, as it removes a 500,000 yuan (US$79,000) ceiling on fines for offending companies.
As a result, it could represent an greater threat to their bottom line.
Curbs on dirty fuels
The new law also proposes to reduce vehicle emissions by raising fuel quality standards
, and curb pollution from a sector that is blamed
for being the single biggest cause of smog in many Chinese cities.These measures will provide a legal basis for the government to intervene in the oil refining and supply sectors, as they will include an obligation for a gasoline quality standard that is matched with the country's restrictions on major pollutants.
However, the current version of the law removes two earlier drafts of the revised law that gave local governments powers to limit vehicle use. Public concerns about local governments breaching property rights enshrined in China’s Property Law are thought to be behind this volte-face.
Many think tanks and researchers have highlighted the need for China to limit the use of cars through measures such as congestion charges
used in some western cities.