Environmental law is the collection of laws, regulations, agreements and common law that governs how humans interact with their environment. … Laws may regulate pollution, the use of natural resources, forest protection, mineral harvesting and animal and fish populations.
Environmental law is a collective term describing international treaties (conventions) , statutes, regulations , and common law or national legislation (where applicable) that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity.
The topic may be divided into two major subjects: pollution control and remediation, and resource conservation, individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy.
Given the broad scope of environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the “environmental” metric.
One of the essential conference objectives thus was a declaration on the human environment, a “document of basic principles,” whose basic idea originated with a proposal by the United Nations Educational, Scientific and Cultural Organization (UNESCO) that the conference drafts a “Universal Declaration on the Protection and Preservation of the Human Environment”. Work on the declaration was taken up by the Conference’s Preparatory Committee in 1971, with the actual drafting of the text entrusted to an intergovernmental working group. Although there was general agreement that the declaration would not be couched in legally binding language, progress on the declaration was slow due to differences of opinion among States about the degree of specificity of the declaration’s principles and guidelines, about whether the declaration would “recognize the fundamental need of the individual for a satisfactory environment” (A/CONF.48/C.9), or whether and how it would list general principles elaborating States’ rights and obligations in respect of the environment. However, by January 1972, the working group managed to produce a draft Declaration, albeit one the group deemed in need of further work. The Preparatory Committee, however, loath to upset the compromise text’s “delicate balance”, refrained from any substantive review and forwarded the draft declaration consisting of a preamble and 23 principles to the Conference on the understanding that at Stockholm delegations would be free to reopen the text.
At Stockholm, at the request of China, a special working group reviewed the text anew. It reduced the text to 21 principles and drew up four new ones. In response to objections by Brazil, the working group deleted from the text, and referred to the General Assembly for further consideration, a draft principle on “prior information”. The Conference’s plenary in turn added to the declaration a provision on nuclear weapons as a new Principle 26. On 16 June 1972, the Conference adopted this document by acclamation and referred the text to the General Assembly. During the debates in the General Assembly’s Second Committee, several countries voiced reservations about a number of provisions but did not fundamentally challenge the declaration itself. This was true also of the Union of Soviet Socialist Republics and its allies which had boycotted the Conference in Stockholm. In the end, the General Assembly “note[d] with satisfaction” the report of the Stockholm Conference, including the attached Declaration, by 112 votes to none, with 10 abstentions (General Assembly resolution 2994 (XXVII)). It also adopted resolution 2995 (XXVII) in which it affirmed implicitly a State’s obligation to provide prior information to other States for the purpose of avoiding significant harm beyond national jurisdiction and control. In resolution 2996 (XXVII), finally, the General Assembly clarified that none of its resolutions adopted at this session could affect Principles 21 and 22 of the Declaration bearing on the international responsibility of States in regard to the environment.
Following its adoption, in 1987, of the “Environmental Perspective to the Year 2000 and Beyond” (General Assembly resolution 42/186, Annex) – “a broad framework to guide national action and international co-operation [in respect of] environmentally sound development” – and responding to specific recommendations of the World Commission on Environment and Development (WCED), the General Assembly, by resolution 44/228 of 22 December 1989, decided to convene UNCED and launch its preparatory committee process. The resolution specifically called upon the Conference to promote and further develop international environmental law, and to “examine … the feasibility of elaborating general rights and obligations of States, as appropriate, in the field of the environment”. Work on this objective, and on “incorporating such principles in an appropriate instrument/charter/statement/declaration, taking due account of the conclusions of all the regional preparatory conferences” (A/46/48), was assigned to Working Group III (WG-III) on legal and institutional issues whose mandate was expanded beyond States’ rights/obligations in the field of the environment, to include “development”, as well as the rights/obligations of other stakeholders (such as individuals, groups, women in development, and indigenous peoples). WG-III held its first substantive meeting during the Preparatory Committee’s third session in Geneva, in 1991. Actual drafting of the text of the proposed instrument, however, did not begin until the fourth and final meeting of the Preparatory Committee in New York, in March/April, 1992.
A proposal for an elaborate convention-style draft text for an “Earth Charter”, first advocated by a WCED legal expert group, did not win approval as it was specifically rejected by the Group of 77 developing countries (G-77 and China) as unbalanced, as emphasizing environment over development. The Working Group did settle instead on a format of a short declaration that would not connote a legally binding document. Still, negotiations on the text proved to be exceedingly difficult. Several weeks of the meeting were taken up by procedural maneuvering. In the end, a final text emerged only as a result of the forceful intervention of the chairman of the Preparatory Committee, Tommy Koh. The resulting document was referred to UNCED for further consideration and finalization as “the chairman’s personal text”. Despite threats by some countries to reopen the debate on the Declaration, the text as forwarded was adopted at Rio without change, although the United States (and others) offered interpretative statements thereby recording their “reservations” to, or views on, some of the Declaration’s principles. In resolution 47/190 of 22 December 1992 the General Assembly endorsed the Rio Declaration and urged that necessary action be taken to provide effective follow-up. Since then, the Declaration, whose application at national, regional and international levels has been the subject of a specific, detailed review at the General Assembly’s special session on Rio+5 in 1997, has served as a basic normative framework at subsequent global environmental gatherings, namely the World Summit on Sustainable Development in Johannesburg in 2002 and “Rio+20”, the United Nations Conference on Sustainable Development in 2012.
Key Provisions and Present Legal Significance
- General Observations
The Stockholm Declaration consists of a preamble featuring seven introductory proclamations and 26 principles; the Rio Declaration features a preamble and 27 principles. As diplomatic conference declarations, both instruments are formally not binding. However, both declarations include provisions which at the time of their adoption were either understood to already reflect customary international law or expected to shape future normative expectations. Moreover, the Rio Declaration, by expressly reaffirming and building upon the Stockholm Declaration, reinforces the normative significance of those concepts common to both instruments.
Both declarations evince a strongly human-centric approach. Whereas Rio Principle 1 unabashedly posits “human beings … at the centre of concerns for sustainable development”, the Stockholm Declaration — in Principles 1-2, 5 and several preambular paragraphs — postulates a corresponding instrumentalist approach to the environment. The United Nations Millennium Declaration 2000 (General Assembly resolution 55/2), also reflects an anthropocentric perspective on respecting nature. However, the two declarations’ emphasis contrasts with, e.g., the World Charter for Nature of 1982 (General Assembly resolution 37/7), and the Convention on Biological Diversity (preambular paragraph 1), whose principles of conservation are informed by the “intrinsic value” of every form of life regardless of its worth to human beings. Today, as our understanding of other life forms improves and scientists call for recognizing certain species, such as cetaceans, as deserving some of the same rights as humans, the two declarations’ anthropocentric focus looks somewhat dated.
At times Principle 1 of both the Stockholm and Rio Declarations has been mistaken to imply a “human right to the environment”. The Stockholm formulation does indeed refer to a human’s “fundamental right to … adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. However, at the conference, various proposals for a direct and thus unambiguous reference to an environmental human right were rejected. The Rio Declaration is even less suggestive of such a right as it merely stipulates that human beings “are entitled to a healthy and productive life in harmony with nature”. Since then, the idea of a generic human right to an adequate or healthy environment, while taking root in some regional human rights systems, has failed to garner general international support, let alone become enshrined in any global human rights treaty. Indeed, recognition of a human right to a healthy environment is fraught with “difficult questions” as a 2011 study by the United Nations High Commissioner on Human Rights wryly notes.
As a basic UNCED theme, “sustainable development” — commonly understood as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs”(Our Common Future) — runs like an unbroken thread through the Rio Declaration. However, sustainable development is also a strong undercurrent in the Stockholm Declaration, even though the WCED was not to coin the concept until several years after Stockholm. For example, Principles 1-4 acknowledge the need for restraint on natural resource use, consistent with the carrying capacity of the earth, for the benefit of present and future generations. The Rio Declaration expands on the sustainable development theme and significantly advances the concept by, as discussed below, laying down a host of relevant substantive and procedural environmental legal markers. Nevertheless, to this day the actual operationalization of the concept has remained a challenge. In this vein, on the eve of “Rio+20”, United Nations Secretary-General Ban felt compelled to reiterate the urgent need for “sustainable development goals with clear and measurable targets and indicators.”
- The Prevention of Environmental Harm
Probably the most significant provision common to the two declarations relates to the prevention of environmental harm. In identical language, the second part of both Stockholm Principle 21 and Rio Principle 2 establishes a State’s responsibility to ensure that activities within its activity or control do not cause damage to the environment of other States or to areas beyond national jurisdiction or control. This obligation is balanced by the declarations’ recognition, in the first part of the respective principles, of a State’s sovereign right to “exploit” its natural resources according to its “environmental” (Stockholm) and “environmental and developmental” policies (Rio). While at Stockholm some countries still questioned the customary legal nature of the obligation concerned, today there is no doubt that this obligation is part of general international law. Thus in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons first, and again more recently in the Case concerning Pulp Mills on the River Uruguay, the International Court of Justice expressly endorsed the obligation as a rule of international customary law. Moreover, the Pulp Mills decision clearly confirms that the State’s obligation of prevention is one of due diligence.
- The Right to Development in an Environmental Context
Both at Stockholm and at Rio, characterization of the relationship between environment and development was one of the most sensitive challenges facing the respective conference. Initial ecology-oriented drafts circulated by western industrialized countries failed to get traction as developing countries successfully reinserted a developmental perspective in the final versions of the two declarations. Thus, after affirming that “both aspects of man’s environment, the natural and the man-made, are essential to his well-being” (preambular paragraph 1), Principle 8 of the Stockholm Declaration axiomatically labels “economic and social development” as essential. Rio Principle 3, using even stronger normative language, emphasizes that the “right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”. Although the United States joined the consensus on the Declaration, in a separate statement it reiterated its opposition to development as a right. The international legal status of the “right to development” has remained controversial even though, post-Rio, the concept has attracted significant support, e.g. through endorsements in the 1993 Vienna Declaration and Programme of Action, and the Millennium Declaration. At any rate, there is no denying that the Rio formulation has had a strong impact on the international political-legal discourse and is frequently invoked as a counterweight to environmental conservation and protection objectives. Today, economic development, social development and environmental protection are deemed the “interdependent and mutually reinforcing pillars” of sustainable development (Johannesburg Plan of Action, para.5).
- Precautionary Action
One of several of the Rio Declaration Principles that does not have a counterpart in the Stockholm Declaration is Principle 15, which provides that “the precautionary approach shall be widely applied by States according to their capabilities:” Whenever there are threats of serious or irreversible damage, a lack of full scientific certainty shall not excuse States from taking cost-effective measures to prevent environmental degradation. At Rio, a European initiative proposing the inclusion of precautionary action as a “principle” failed to gain support. Today, the concept is widely reflected in international practice, although there exists no single authoritative definition of either its contents or scope. This has prompted some States, including the United States, to question its status as both a “principle of international law” and a fortiori a rule of customary international law (World Trade Organization, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, paras.7.80-7.83). However, in its 2011 Advisory Opinion, the Seabed Chamber of the International Tribunal of the Law of the Sea takes note of “a trend towards making this approach part of customary international law”, thereby lending its voice to a growing chorus that recognizes “precaution” as an established international legal principle, if not a rule of customary international law.
- “Common but Differentiated Responsibilities”
While today the concept of “common but differentiated responsibilities” (“CBDR”) is accepted as a cornerstone of the sustainable development paradigm, it is also one of the more challenging normative statements to be found in the Rio Declaration. The second sentence of Principle 7 provides: “In view of the different contributions to global environmental degradations, States have common but differentiated responsibilities”. Ever since its adoption, its exact implications have been a matter of controversy. Specifically, taken at face value the formula seems to imply a causal relationship between environmental degradation and degree of responsibility. However, “differential responsibilities” has been considered also a function of “capability” reflective of a state’s development status. Unlike the essentially contemporaneously drafted provision in the United Nations Framework Convention on Climate Change, which refers to States’ “common but differentiated responsibilities and respective capabilities” (Article 3, para.1, emphasis added), the second sentence of Principle 7 omits any reference to capabilities. A separate sentence in Principle 7 does acknowledge the relevance of capabilities. But it does so in relation to developed countries’ special responsibility regarding sustainable development on account of “the technologies and financial resources they command”. Principle 7 indirectly, then, links developing country status to “responsibilities”. What remains unclear, at any rate, is whether “CBRD” implies that developing country status in and of itself entails a potential diminution of environmental legal obligations beyond what a contextually determined due diligence standard would indicate as appropriate for the particular country concerned. Certainly, both the Stockholm and Rio Declarations (Principle 23 and Principle 11, respectively) expressly recognize the relevance of different national developmental and environmental contexts for environmental standards and policies purposes. However, developing country status per se does not warrant a lowering of normative expectations. At Rio, the United States stated for the record that it “does not accept any interpretation of Principle 7 that would imply a recognition or acceptance by the United States of … any diminution of the responsibilities of developing countries under international law”. The United States delegation offered the same “clarification” in respect of various references to “CBDR” in the Plan of Implementation of the World Summit on Sustainable Development in 2002. Consistent with this view, the 2011 International Tribunal of the Law of the Sea Advisory Opinion, in construing the scope of a State’s international environmental obligations, refused to ascribe a special legal significance to developing country status and instead affirmed that “what counts in a specific situation is the level of … capability available to a given State…”.
- Procedural Safeguards
Principles 13-15 and 17-18 of the Stockholm Declaration — rather modestly — emphasize the need for environmental and development planning. The absence of any reference in the Declaration to a State’s duty to inform a potentially affected other state of a risk of significant transboundary environmental effects was due to the working group on the Declaration’s inability to reach agreement on such a provision. However, the working group did agree on forwarding the matter to the General Assembly which, as noted, endorsed such notification as part of States’ duty to cooperate in the field of the environment. By contrast, the Rio Declaration unequivocally and in mandatory language calls upon States to assess, and to inform and consult with potentially affected other States, whenever there is a risk of significantly harmful effects on the environment: Principle 17 calls for environmental impact assessment; Principle 18 for emergency notification and Principle 19 for (routine) notification and consultation. At the time of the Rio Conference, and perhaps for a short while thereafter, it might have been permissible to question whether the contents of all three principles corresponded to international customary legal obligations. However, today given a consistently supportive international practice and other evidence, including the International Law Commission’s draft articles on Prevention of Transboundary Harm from Hazardous Activities, any such doubts would be misplaced.
- Public Participation
Principle 10 of the Rio Declaration posits that “[e]nvironmental issues are best handled with the participation of all concerned citizens, at the relevant level”. It then calls upon States to ensure that each individual has access to information, public participation in decision-making and justice in environmental matters. Although Principle 10 has some antecedents in, for example, the work of the Organization of Economic Co-operation and Development, it nevertheless represents a trail blazer, laying down for the first time, at a global level, a concept that is critical both to effective environmental management and democratic governance. Since then, international community expectations, as reflected notably in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), the 2010 UNEP Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters and various resolutions of international organizations and conferences, have coalesced to the point where the normative provisions of Principle 10 must be deemed legally binding. While the actual state of their realization domestically may be still be a matter of concern—implementation by States of their Principle 10 commitments is specifically being reviewed within the context of Rio+20—today the rights of access to information, public participation, and access to justice arguably represent established human rights.
- The Interface of Trade And Environment
In Principle 12 of the Declaration, the Rio Conference sought to address one of the controversial issues of the day, the interrelationship between international trade and environmental conservation and protection. After exhorting States to avoid trade policy measures for environmental purposes as “a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade” — language that closely follows the chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT) — Principle 12 criticizes States’ extra-jurisdictional unilateral action: “Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided”. This provision traces its origin to a proposal by Mexico and the European Community both of which had been recent targets of United States environment-related trade measures. Responding to the adoption of Principle 12, the United States offered an interpretative statement that asserted that in certain circumstances trade measures could be effective and appropriate means of addressing environmental concerns outside national jurisdiction. This U.S. position has now been fully vindicated. As the World Trade Organization Appellate Body first acknowledged in the Shrimp-Turtle cases, unilateral trade measures to address extraterritorial environmental problems may indeed be a “common aspect” of measures in restraint of international trade exceptionally authorized by Article XX of the GATT.
- Indigenous Peoples
Rio Principle 22 emphasizes the “vital role of indigenous people and their communities and other local communities” in the conservation and sustainable management of the environment given their knowledge and traditional practices. It then recommends that States “recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development”. Even at the time of its drafting this was a somewhat modest statement, considering that in the case of indigenous peoples, cultural identity and protection of the environment are inextricably intertwined. Thus some international legal instruments such as the International Labour Organization Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries of 1989 and the Convention on Biological Diversity, which was opened for signature at Rio, already specifically recognized and protected this relationship. Since Rio, indigenous peoples’ special religious, cultural, indeed existential links with lands traditionally owned, occupied or used have been further clarified and given enhanced protection in a series of landmark decisions by human rights tribunals as well as in the United Nations Declaration on the Rights of Indigenous Peoples (General Assembly resolution 61/295).
- Women in Development
The Rio Declaration was the very first international instrument to explicitly recognize that the empowerment of women and, specifically, their ability to effectively participate in their countries’ economic and social processes, is an essential condition for sustainable development. Principle 20 of the Rio Declaration calls attention to women’s “vital role in environmental management and development” and the consequent need for “their full participation.” It recognizes the fact that women’s livelihood, in particular in developing countries, often will be especially sensitive to environmental degradation. Unsurprisingly, this “women in development” perspective has been strongly endorsed in other international legal instruments, such as the preambles of the Convention on Biological Diversity or the Desertification Convention, and in resolutions of various international conferences. In short, as a United Nations Development Programmer website puts it, gender equality and women’s empowerment represent not only fundamental human rights issues, but “a pathway to achieving the Millennium Development Goals and sustainable development.” However, as the calls for “sustainability, equity and gender equality” at Rio+20 seem to underline, much work appears still to be necessary before the Principle 20 objectives will truly be met.
- Environmental Liability and Compensation
Finally, both the Stockholm and the Rio Declarations call for the further development of the law bearing on environmental liability and compensation. Whereas Stockholm Principle 22 refers to international law only, the corresponding Rio Principle 13 refers to both national and international law. Notwithstanding these clear mandates, States have tended to shy away from addressing the matter head-on or comprehensively, preferring instead to establish so-called private law regimes which focus on private actors’ liability, while mostly excluding consideration of States’ accountability. Recent developments, however, when taken together, can provide a basic frame of reference for issues related to environmental liability and compensation, be that at national or international level. These developments include, in particular, the work of the International Law Commission, especially its draft Principles on Allocation of Loss in the Case of Tran boundary Harm Arising out of Hazardous Activities; and the 2010 UNEP Guidelines for the Development of Domestic Legislation on Liability, Response Action and Compensation for Damage Caused by Activities Dangerous to the Environment. In this vein, therefore, it might be argued that today the expectations of legislative progress generated by the Stockholm and Rio Declarations have finally come to be realized, at least in large part.
The purpose of this paper is to take a look at the main reasons for the apparent ineffectiveness of the environmental regulatory regime in the People’s Republic of China. In order to assess the current state of China’s environmental legislation framework, an overview of all major environmental codifications is provided, firstly, by establishing the institutional and historical context and, secondly, by reviewing environmental legislation and policies. This examination will reveal that China’s environmental protection regime is surprisingly comprehensive, even though statutory deficiencies exist, and will highlight enforcement tensions between the centre and the periphery—a result of decentralization and growing local protectionism—as major obstacles to the implementation process.
China Development of Environment Law
The cornerstone of effective environmental protection is a country’s legal regime and its implementation. Historically, the Chinese have tended to guide social behaviour rather by using moral precepts and customs than by formal laws.1 Yet, the rise of an industrial and urbanized society in recent times has challenged this approach. Since the late 1970s, law has acquired greater importance and has become a considerable factor in the political, economic and social transformation of the country. Especially, the creation of the environmental regulatory regime has played a notable role in the evolution of China’s legal system and is increasingly seen as integral to the country’s future development. China’s environmental legal framework is rather young and started almost from scratch in the early 1970s after the country’s attendance at the Stockholm Conference on Human Environment. In the subsequent era of China’s open policy and reform, initiated by Deng Xiaoping, the environmental legal regime began to develop, coinciding with a growing awareness of environmental issues. In a relatively short period, China has built quite an extensive set of pollution prevention and control legislation. However, the formal legislation has hardly been translated into effective controls. China’s efforts have been complicated by enforcement tensions which have arisen between the centre and the periphery—a result of decentralization and growing regional autonomy. Besides, there is hardly any tradition of settling regulatory issues through courts and most polluters do not even acknowledge that violating environmental laws and regulations is a legal offence. Pressing environmental problems still exist. In fact, environmental degradation is an increasingly serious issue. Adverse social consequences reflecting the failure of effective environmental protection, as there are health problems, mass migration and resettlements, contribute to the dissatisfaction of a growing number of Chinese people. This situation reveals the implementation deficit of China’s present regulatory approach. Provided that economic growth remains the priority for China, how can the country effectively enforce its legal regime without compromising environmental concerns? When pollution harms people and natural systems, it typically imposes, although more indirectly, economic costs that are often higher than costs for well conceived measures for abatements. This points to an approach that integrates pollution prevention and control measures early into a nation’s long-term economic development. Moreover, when addressing this question, China’s unique legal, political and social situation has to be taken into account. Direct transfers of Western solutions are unlikely to succeed in contemporary China. Environmental solutions rather ought to focus on China’s existing institutional framework and contribute to providing basic institutional infrastructure for the implementation and the enforcement of basic rights. Particularly, the guarantee of individual rights as private property and contractual rights is a fundamental presupposition for effective environmental protection. Also, public awareness of environmental issues, as well as the possibility of public participation by citizens and non-governmental organizations (NGOs) that provide expertise and accelerate the implementation process, are important factors.
Looking at the methodological perspective, China is an interesting study object. The Chinese bureaucratic structure of government provides a valuable opportunity for comparative research among China’s different provinces. All provinces are required to enforce the same environmental laws and regulations promulgated by the central government. However, provincial success in enforcement efforts varies widely at a local level. This variance allows assessments of local capacity as a factor for the effectiveness of enforcement efforts. Another reason to focus on China is the country’s growing international significance due to its enormous economic expansion that accompanied China’s remarkable transformation segueing the command economy to a market-based and increasingly less planned economy. At the international level, China contributes to acid rain and soaring carbon output that aggravates global warming. The international community is concerned by the potential for the global environmental devastation should China fail to successfully develop and implement environmental policies. Just recently, the apparent inefficiencies of China’s environmental protection regime became evident when it took the Chinese government 10 days to publicly acknowledge the existence of an 80-kilometre-long slick of highly toxic benzene that had been caused by an explosion of an upriver chemical plant which had contaminated water supplies for one of China’s biggest cities—Harbin in north-eastern Heilangjiang province—and threatened neighbouring Russia.
II. China’s geographic and environmental setting
China’s spectacular growth of almost 10 per cent average annually over the past two decades has provided a significant increase in the standard of living for hundreds of millions of Chinese. At the same time, this development has also produced pressing environmental problems. China has the world’s largest population, with almost 1.3 billion people, harsh natural conditions, a relatively small area of cultivated land, few water resources and heavy pollution. Half of China’s population lives on 13 per cent of China’s territory, resulting in a high population density of 118 persons per square kilometre, imposing enormous burdens on the environment. A dramatically increased demand for energy, natural resources of all kinds, including water and land, accompanied the country’s tremendous economic development. Resources have been depleted, triggering a range of secondary impacts in desertification, flooding and biodiversity loss. Pollution levels in the major cities are among the highest on earth. A noted World Bank study based on conservative assumptions estimate that the mid-1990s’ urban air quality and water pollution alone cost the Chinese economy US$32.3 billion annually in premature deaths, morbidity, restricted activity and other negative health effects.6 China is plagued by two paradoxical water crises, since northern China suffers from regular drought whereas floods threaten the south. Water scarcity has led to the depletion of underground aquifers, to the destruction of fertile soil and has caused an influx of eco-refugees who have fled areas ruined by drought and dust storms. Poorly regulated industries and household emissions have caused water and air pollution. More than 75 per cent of the water flowing through China’s urban areas is unsuitable for drinking or fishing. Sixty million people have difficulties in getting access to water for their daily needs and almost three times that number drink contaminated water every day.7 Due to China’s reliance on coal for its energy needs, almost two-thirds of China’s cities do not meet the standards set out by the World Health Organization for acceptable levels of total suspended particulates and sulphur dioxide.Desertification affecting one-quarter of China forces thousands of people to migrate every year and now threatens to envelop Beijing. China’s development has also made the country—after the United States—the world’s second largest emitter of greenhouse-gas. China is expected to be the world’s largest greenhouse-gas polluter in 2020. Health problems, mass migration and resettlements have the potential to stir social unrest and are consequences of a failure in effectively integrating environmental considerations into development efforts. In addition, a “floating population” of approximately 100 million migrant workers roams from city to city due to China’s geographically uneven economic growth and increase urban environmental problems resulting from overcrowding.
III.A. The institutional framework
The Preamble of the Constitution defines the People’s Republic of China as a “unitary multinational state created jointly by the people of all its nationalities”. China’s centralistic system roots in its history and can be traced back to its first unified dynasty, established in 221 BC. Present-day China is divided into provinces, autonomous regions and municipalities,which are directly under central government control. The administrative structure has become increasingly decentralized in recent years, where responsibilities and functions are split between central and local institutions. The highest body of the State is the National People’s Congress (NPC), which has the authority to enact all “basic laws” (jiben fa), resolutions and decisions, to supervise their implementation and to make amendments to the Constitution. Since the NPC holds a meeting only once a year for a short period of time, most legislation activity is conducted by its Standing Committee. The Standing Committee meets bi-monthly and has the competence to pass laws (fa) other than those “basic laws” being the domain of the NPC, to interpret the Constitution and “basic laws” (lifa jieshi), and to supervise other principal organs.
China’s chief executive organ—the State Council—is authorized to enact administrative regulations (xingzheng fagui) pursuant to national and constitutional law, while its ministries, commissions and departments are competent to issue administrative rules (xinzheng guizhang). Under the State Council, the Commission for the Protection of Environmental and Natural Resources (ENRPC) co-ordinates environmental protection work and develops environment-related policies and guidelines since 1984.The administrative arm of the NPC is the State Environment Protection Administration (SEPA), which conducts unified supervision at the national level and has nationwide control over environment protection throughout the country. In particular, SEPA is responsible for determining national environmental policies for the protection of air, water, soil and for waste disposal, for issuing national environmental regulations and national standards, for providing guidance to provinces on environmental matters and for supervising and managing environmental protection at national level. Apart from SEPA, central government ministries as the Ministries of Agriculture, Energy, Forestry and Water Resources have the power to issue environmental regulations at national level. Local people’s congresses and their respective standing committees are authorized to adopt local regulations, provided they are in accordance with superior legislation and regulations. Local administrative rules implementing national laws and regulations as well as local regulations are issued by local governments. At the local government level, from provincial level down to the levels of cities, counties and townships, Environmental Protection Bureaus (EPBs) represent the decentralized power structure. They are funded by the local governments of which they are part and are responsible for environmental protection under their jurisdiction, including drafting local laws, issuing administrative regulations, supervising and organizing work on environmental monitoring and control, and for the education and training in environmental issues. EPBs constitute the basic units for compliance with environmental laws and regulations, and are assisted by research institutes and monitoring centres.
III.B. Dispute resolution
China has a national judiciary, headed by a Supreme People’s Court, which itself is vested with, in addition to the power to decide concrete cases, extensive interpretative powers exercised in the abstract (sifa jieshi).This authority concerns the specific application of laws in judicial proceedings that have binding force on all courts. As a basic principle, Chinese courts are not authorized to interpret laws and are confined to the implementation process. Generally, courts will not overturn these interpretations. Below national level, China’s system of courts consists of local people’s courtsand of courts having exclusive jurisdiction over cases involving disputes over maritime, forest, railway and military issues. Courts consist of special divisions for civil, administration, criminal and commercial matters that are supplemented by an enforcement branch. China follows the principle of two instances of trails for final adjudication; the jurisdiction of each court is assigned by law. Environmental cases involve civil, criminal and administration litigation. Generally, court proceedings are perceived as a last resort. In a legal and political milieu that traditionally refrains from the encouragement of individual rights, many environmental grievances are not transformed into disputes, but rather endured. Due to the ancient Confucian concept of social harmony, law in general is not seen as an adequate mechanism to shape human behavior. According to this philosophy, the ultimate goal of social harmony is not attained by harmonizing subjective rights of persons intending to defend their own interests. Moreover, individual rights are considered to disturb the social order. Consequently, the focus lies on preventing disputes from happening rather than on finding out whose rights have been infringed. This explains the conciliatory approach of dispute settlement, particularly the preference for mediation in both traditional and contemporary China. Civil disputes are dealt with by People’s Mediation Committees, an NGO under the leadership of local people’s governments and local people’s courts. In the context of environmental issues, people’s mediation is mostly engaged in the resolution of disputes over noise pollution between community enterprises or workshops and their neighboringresidents. The participation in mediation is voluntary; however, settlement agreements are, according to the newly issued provisions on people’s mediation, treated as civil contracts, implying that the agreement may be neither modified nor repudiated.
Civil claims, including individual as well as joint actions concerning environmental issues, are processed under the Law of Civil Procedure. Although no nationwide statistics on environment-related claims are published, courts’ reports indicate that the number of rulings relating to air, water and land pollution is increasing. Today, civil liability is a common form of remedy in China. Plaintiffs mostly seek an injunction—an order for the elimination of pollutants or damages as compensation. The obligation to compensate any direct loss caused by environmental pollution is stipulated in Article 41 of the Environmental Protection Law and specified by the General Principles of Civil Law. In civil cases, the typical outcome is a mediated agreement that has binding force.
Under the system of administrative review , administrative activity, non-performance or sanctions are subject to administrative appeal or judicial review at the discretion of the party concerned. In practice, the majority of administrative disputes are settled through mediation by environmental protection bureaus at various levels. The request of the parties initiates the mediation process. The administrative authorities are empowered to make a final decision, including the imposition of liability for compensations when mediation fails. If one party refuses to accept the decision, it may bring a suit before the people’s court. The Administrative Procedure Law governs the judicial review of administrative decisions. However, it should be noted that the review of certain decisions is excluded. This applies to State acts affecting the national defence, foreign affairs and to those decisions announced with general binding force. In practice, these kinds of decisions are beyond judicial review. For instance, the Three Gorges Dam Project that is still being vigorously criticized for endangering the environment was classified as such a decision with respect to its significance for economic development.
In cases of criminal liability, individuals and units may initiate criminal prosecution. The procuratorates exercise the power of prosecution in accordance with the provisions of the Criminal Procedure Law. Finally, the long-standing mechanism of the “letters and visits” system provides the possibility to voice a complaint. Any party can submit a written or oral complaint (shangfang) to the Letters and Visitors Offices located in Party and Government organs as well as in media institutions. At this stage, disputes usually have been reported to the relevant environmental protection agencies and not resulted in the favoured settlement. This system has therefore to be seen as the last attempt to put pressure on the state organ and to raise public sympathy to deal with the issue in a satisfactory manner.
China’s environmental law evolved slowly and developed over three periods, commencing with the establishment of the People’s Republic in 1949. In the 1950s and during the period of the “Cultural Revolution” dating from 1966 to 1976, hardly any progress was achieved. Only few environmental interests can be located, such as in the regulation on mineral resources and factory safety, including provisions on water pollution prevention and waste disposal. At that time, environmental protection was simply not on the agenda due to Chairman Mao’s policy of the “Great Leap Forward”, aiming to revitalize the economy, and to his firm belief that nature had to be defeated by humans. It was not before 1973, after severe floods and droughts had taken place, that a decision concerning environmental protection and improvement was issued following China’s signature of the 1972 United Nations Stockholm Declaration on the Human Environment. This decision constituted the impetus for the environmental legislation in the subsequent era of China’s policy of openness and economic reform adopted by Deng Xiaoping in 1978. In this period, environmental law and a greater awareness of environmental issues began to develop, coinciding with China’s economic growth and with the improvement of people’s standard of living. The most important contribution to this progress came into force in 1978, when the State’s responsibility for the protection of the environment was added to the Constitution. This was the first time that China had enacted an environmental protection provision into basic national law and had regarded environmental protection as an obligation and duty of the State. After this significant turning point, the way was paved for further environmental protection legislation. A landmark of environmental law was introduced in 1979 by the enactment of the Environmental Protection Law (EPL) that was issued as one of the seven codes promulgated by the National People’s Congress and its Standing Committee after the total distortion of the legal system in the period of the Cultural Revolution. The fact that the Environmental Protection Law was part of the legislation package that comprised statutes as the civil and criminal code demonstrated the extraordinary attention that was given to environmental protection. Since the early 1980s, a gamut of environmental legislation has been issued, starting with the Marine Environmental Protection Law in 1982, the Water Pollution Prevention and Control Law and the Forest Law in 1984, followed by the Grassland Law in 1985 and the Air Pollution Prevention and Control Law in 1987. In the 1990s, China undertook new efforts to strengthen its environmental laws and to bring them into closer compliance with the principle of sustainable development introduced after the 1992 United Nations Conference on Environment and Development. The first generation of post-Cultural Revolution laws were revised, as well as new laws on solid waste, noise pollution and other environmental issues enacted. Newly promulgated legislation covers areas such as cleaner production measures and radioactive pollution. In addition, a wide range of local laws in the form of regulations, decisions, orders and quality standards have been issued at a local level since 1990 which deal with the management, supervision and procedures to facilitate the policies and enforcement of national laws.
The overall framework for China’s environmental legislation is the Environmental Protection Law, which was passed as a trial in 1979 and later amended and enacted into its final form in 1989. It covers a broad spectrum of environmental issues, ranging from the protection and control of pollutions to the protection of wildlife, and provides basic principles for both preventive and rehabilitative measures. Its regulatory measures address water, air, solid waste and noise pollution, and establish a system for environmental management, monitoring, liability and enforcement. These include general requirements for discharge registration systems, for the levying of fees, for environmental impact assessments as well as measures for the control and elimination of pollution supplemented by provisions for legal liability. The Environmental Protection Law imposes on all units and individuals an obligation to protect the environment and grants the right to report or file charges against any offender. The law also stipulates the scope of duties of environmental management agencies. The authority to manage and supervise environmental protection at a national level has been delegated to SEPA, while local government’s environmental protection bureaus have responsibility for environmental management and supervision under their jurisdiction. In order to co-ordinate environmental management, the Environmental Protection Law also assigns responsibility to the other competent national administrative and local government’s departments.The law directs the authority to issue national environmental standards to SEPA, whereas their implementation lies within the competence of sub-national departments. However, the people’s governments of provinces, autonomous regions and municipalities directly under the central government are only empowered to establish local quality standards if no national standard exists, while more stringent discharge standards for pollutants may be established. Units and individuals having made significant contributions to the protection and improvement of the environment are to receive awards. Those discharging pollutants in excess of prescribed standards shall pay discharge excess fees and are obliged to eliminate the damage. Additionally, fines may be imposed in certain cases and criminal liability be pursued if the violation leads to human injuries and heavy losses of property.
III.C.ii.b. Anti-pollution laws
Air pollution prevention and control law. According to a World Health Organization air quality study conducted in 1998, three of the 10 most severely polluted cities are located in China. Air pollution levels in Chinese cities frequently double the world average; Beijing has the dubious distinction of competing with Mexico City for the “honour” of the world’s most polluted capital. Various factors have contributed to this situation, such as the increasing consumption of fuel triggered by the rapid economic development and out-of-date technologies. However, the main source of air pollution in China is coal burning that produces both sulphur dioxide and suspended particulates. Coal is the chief source of energy that provides about two-thirds of China’s total energy consumption. After the extraordinary frequency and intensity of dust storms in spring 2000 had demonstrated the urgency of addressing these environmental problems, China reacted by adopting major amendments to the 1987 Air Pollution Prevention and Control Law, last revised in 1995. Since the former law lacked effective measures in combating air pollution, the law was essentially rewritten and previously existing sections were substantially amended. The intent was to stabilize total pollutant emissions at 1995 levels by the year 2010, to achieve national air quality standards in 34 of 47 key cities and to reduce dust emanating from construction sites in Beijing by 70 per cent. In contrast to the 1995 amendments that focused primarily on controlling particular pollutants from coal combustion, the 2000 amendments reflect a shift in the prevention strategy by providing measures for monitoring the total volume of pollutants entering an air shed. China had already applied those total emissions control measures in certain areas, such as in designated acid rain zones. Now, the amended law provides the legal basis for implementing those measures on a much wider scale. The new law authorizes the State Council and the provincial-level governments, autonomous regions and directly administered municipalities, with approval of the State Council, to establish “Total Emission Control (TEC) Zones”, where all polluters are required to comply with the prescribed standards. Furthermore, the establishment of a national emission fee system on the basis of categories and quantities of atmospheric pollutants and of a reporting system covering all relevant data marks a major departure from the former law that had held polluters only liable when emission levels were exceeded. Also, market-based methods and incentives, although unspecified, for clean producing techniques and renewable energy were stipulated. Whereas control measures under the old law focused almost exclusively on industrial enterprises and power plants, the revised law includes specific provisions for automobiles, vessels, domestic heating and cooking stoves. Vehicles have to meet discharge emission standards and pass annual checks. The production marketing and import of leaded gasoline shall be stopped according to time limits set by the State Council. Provincial-level governments, autonomous regions and directly administered municipalities may, with approval of the State Council, enact stricter vehicle emission standards.Individual coal-heating stoves shall be replaced by central-heating systems, and sand and dust-control measures adopted by afforestation, urban and rural greening. Key cities may designate zones wherein all producing and consuming of high-polluting fuel as coal are prohibited.New and expanding sulphur dioxide-emitting power plants as well as large and medium-sized enterprises that do not meet prescribed standards for pollution discharges have to install desulphurizing and dust removal equipment; existing enterprises must adopt control measures by a timetable to be determined by the State Council.
Water pollution prevention and control law. Water pollution is a very serious issue in China and threatens the health of millions of people. About 80 per cent of China’s sewage effluent flows directly into waterways without any prior treatment, about 30 per cent of the nation’s rivers are polluted, about 75 per cent of water in urban areas is contaminated and nearly 50 per cent of water sources for China’s major cities do not meet potable water standards. As a response to this situation, the major statute—the 1984 Water Pollution Prevention and Control Law—was amended in 1996, aiming to protect and improve water resources for the purpose of ensuring their effective utilization and safeguarding human health. Rules for the implementation of this law have been passed by the State Council in numerous administrative regulations. The law applies to the pollution of water resources of all kinds except marine water, which is governed by special law. The amendments focus primarily on clarifying the responsibilities of various governmental departments, on introducing stricter non-compliance provisions and on measures for “clean technologies”. The people’s governments at various levels have unified supervision and management responsibility over the prevention and control of water pollution and shall exercise their authority in conjunction with other concerned administration departments. SEPA is authorized to determine standards for water qualities and, in line with the country’s economic and technological conditions, discharge standards for water pollutants. A control system for fixed total quantities of pollutants can be instituted by the people’s governments at or above the provincial level if discharge standards are not met. In order to avoid trans-regional disputes, the law now provides for an unified basin or region-wide planning approach. The protection of major rivers as designated by the State lies within the main responsibility of SEPA. Together with other competent administrative authorities and the concerned people’s governments directly under the Central Government, SEPA’s task is to draw up plans. Once approved, such plans serve as fundamental grounds for the prevention and control of water pollution of other water bodies and have to be incorporated into economic and social development plans. The amended Water Pollution Prevention and Control Law further provides for the creation of surface sources protection zones for domestic and drinking water, where the discharge of sewage, construction projects, tourism and any activity that may pollute the water is prohibited. In general, the law requires all units that discharge pollutants directly or indirectly into a water body to register with the local environmental protection department and to supply this authority with information on the quality and quantity of the pollutants, on the discharge and treatment facilities, as well as on measures for pollution prevention. A pollutant discharge fee shall be levied and an additional excess fee for exceeding the limits set by the national or local standards. Enterprises are obliged to employ clean production techniques, to reduce the discharge of pollutants and to improve the management in order to decrease water pollutants. Another major amendment was the introduction of the central urban sewage treatment system that prescribes the incorporation of protection measures for urban water sources in urban construction plans, the construction of central water treatment facilities and the imposition of sewage treatment fees.
Solid waste pollution prevention and control law. In response to China’s increasing generation of industrial, municipal and hazardous waste, the PRC embarked on a multifaceted waste management strategy following the UN Conference on Environment and Development in 1992. After having reviewed numerous foreign waste regulations, a law on solid waste was issued in an effort to adapt these measures to China’s needs. The statutes dealing with waste are the Solid Waste Pollution Prevention and Control Law enacted in 1995 and the implementing regulations. The law establishes a broad national framework for the management of industrial, municipal and hazardous waste, aiming to safeguard human health by means of preventing and controlling solid waste pollution.Focusing on the full cycle of waste management, the law imposes new obligations on those who generate, collect, store, transport, utilize, dispose of or import solid waste, although full details are subject to national and local implementation regulations. SEPA has nationwide supervision and management responsibility over the prevention and control of environmental pollution caused by solid waste.Within their administrative areas, the local EPBs are responsible. SEPA, in conjunction with other relevant departments under the State Council, is responsible for developing technology policies as well as for promoting advanced production techniques and equipment’s aiming to prevent and control industrial solid waste pollution. The department responsible for economic integration under the State Council is authorized to issue a catalogue of outdated production techniques and equipment’s jointly with other relevant departments. The Solid Waste Pollution Prevention and Control Law establishes a reporting, registration and licensing system for industrial solid and hazardous waste and goes far beyond the mere regulation of waste disposal. The statute requires industrial units producing solid waste to register with local environment protection authorities and to furnish data of its waste output, flow direction, storage, treatment and other relevant information to the responsible EPB. Each unit is obliged to adopt advanced techniques for the reduction of solid waste and to construct storage or treatment facilities for waste that cannot be utilized. In case of non-compliance, SEPA is authorized to assess pollution discharge fees. It lies within the principal responsibility of SEPA to develop unified criteria for specifying hazardous waste. Reporting and registration obligations are imposed on hazardous waste generators, transporters and operators of treatment, storage and disposal facilities. Persons engaged in the collection, storage or treatment of hazardous waste must apply for an operation license and undergo special training. As to municipal solid waste, all units and individuals are required to dump their household refuse at designated sites. The municipal people’s governments are responsible for building a system of facilities that collects, removes, stores, transports and treats urban household refuse. Appropriate utilization of municipal waste constitutes a target. As a result of numerous cases of unwanted waste imports into China, the law also addresses the important issue of solid waste imports and inter-provincial waste transfer. The law establishes administrative consent procedures for domestic transfers and a ban on solid waste that cannot be utilized as raw material.
Noise pollution prevention and control law. The long-awaited law on Noise Pollution Prevention and Control was issued in 1996 and filled a significant gap in China’s environmental statutes. Its objective is to protect and improve the living environment and to safeguard human health by the prevention and control of noise pollution. Different categories of noise fall within the scope of the law, such as noise from industrial pollution, construction, transportation and social living. The law sets out general requirements on noise control in urban planning. The local people’s governments are mandated with evaluating the impact of noise from regional developments and construction projects on the surrounding environment. They are responsible for systematically planning and arranging the location of projects so as to prevent or minimize noise pollution. Urban planning departments are required to assign reasonable noise prevention distances and propose planning and design requirements SEPA is authorized to determine national standards for acoustic environmental quality and, in accordance with the State’s economic and technological conditions, national noise emission standards. Fees shall be levied for excess emission. The local public security bureau may issue exemption permissions in cases of occasionally strong noise in urban areas and make an announcement to the public.Noise-creating industrial enterprises are obliged to indicate their noise levels to the environmental agencies and to take effective measures to alleviate the impact of noise on the environment. Also, construction projects that may produce noise pollution have to be indicated to the responsible environmental protection department of the local people’s government at least 15 days prior to their coming into operation. As regards traffic noise, the Noise Pollution Law prohibits the manufacturing, selling or importing of automobiles that exceed noise standards. Since social living noise is a relevant issue in urban areas in China, the law also addresses this problem by obliging any operators or managers of cultural and entertainment centers to take effective measures in order to keep noise at the boundary from exceeding the limits fixed by standards. The use of high-pitch loudspeakers for the purpose of attracting customers and within noise-sensitive areas is prohibited. Commercial enterprises located in the neighborhood of noise-sensitive buildings are required to report the necessary data on their emissions and measures used to prevent and control noise to the environment protection agency.
III.C.ii.c. Natural resources conservation laws
In addition to the basic provisions on natural resources conservation of the Environmental Protection law, a number of specific laws dealing with the preservation of nature and natural resources have been promulgated. The leading causes of China’s biodiversity loss are extensive agriculture, industrialization, illegal logging and land degradation. About one-third of China’s farmland has been exploited from primary forestland and the use of pesticides as well as of chemical fertilizers has increased significantly. Despite reforestation efforts, China’s overall amount of forest cover has decreased continually and grassland ecosystems face serious decline. Approximately one-third of the country’s deserts are the result of human activity and the trend of desertification is accelerating, especially in China’s arid and semi-arid north and northwest. Deserts are increasing at a rate of 1.8 million hectares a year and sandstorms caused by land degradation have become a serious problem in China. The major regulatory regime covering the conservation of soil are the Law on Water and Soil Conservation dating from 1991 and the Desertification Prevention and Control Law recently enacted in 2001. In order to control and reverse this development, the new law presents a mixture of measures issuing from central planning combined with economic incentives more attuned to China’s emerging market economy. National and local desertification prevention and treatment plans shall be drawn up and a national monitoring network be instituted. Farmers and herders located in protected desertified areas shall be resettled and new cultivations on desert margins should not be permitted. More than just stating the duty to prevent desertification, the law also obliges individuals and units using land to undertake remediation efforts. Technical support and subsidies, although unspecified, shall be provided. The most significant innovative provision is likely to be the authorization of local governments to grand land-use rights for up to 70 years to desertified areas if the landholder assents to restore the land. Since land-use contracts were usually limited to considerably shorter periodsat the time at which the new Desertification Prevention and Control Law was enacted, the introduction of this provision clearly revealed the strategy to provide more certain property rights as an incentive to promote environmental protection.
Moreover, species decline is due to habitat loss and land degradation. Although China ranks second for percentage of nature reserves in the world, no national law on the conservation of nature reserves has been promulgated until now. The Wildlife Protection Law enacted in 1988 neither contains stipulations on the management of animals’ habitats and their suitability for establishing nature reserves, nor does it provide ownership rules that adapt to current realities. Especially, the outbreak of SARS in 2003 indicated the need for major amendments, in particular for a ban on eating wild animals. However, a number of regulations have been adopted, providing procedures for the establishment and management of nature reserves, including provisions on co-operation between nature reserve authorities, local governments and residents, on the access to nature reserves and on penalties. Specific laws dealing with the protection of nature resources are the Forest Law last revised in 1998 and the Grassland Law amended in 2002. The Forest Law imposes annual cutting quota and institutionalizes a permit system for tree cutting. Both laws contain provisions on the sustainable utilization of resources, on protection policies promoting the restoring of vegetation and afforestation, on ownership and specific use rights, as well as on prohibitions of certain harmful actions.
III.C.ii.d. Criminal law
Prior to the promulgation of the revised Criminal Law in 1997, the provisions on criminal liability for environmental pollution were scattered throughout various environmental statutes. As amended, the Criminal Code provides a more comprehensive regime for offences to environmental resources. Chapter 6 of Chapter VI of the Criminal Law deals with “crimes undermining the protection of environmental resources” and defines the crimes and sanctions imposed on persons being responsible for environmental damage. The law includes provisions that range from the unauthorized import of solid waste, the release of radioactive and toxic substances into the environment, the violation of regulations governing aquatic resources, land administration and forestry, including the destruction of rare trees and illegal logging, to the unauthorized hunting of endangered wild animals. The most severe punishments—imprisonment for up to 10 years—may be imposed under Article 339 for the illegal import, storage or processing of solid waste if major damages to public or private properties, or serious health risks are caused and under Article 341 for the killing or the trading of endangered species in serious cases. Additional provisions on criminal liability can be found in several environmental laws, partly with identical wording and reference to the Criminal Code.
Environmental Law policies
Content and legal basis
The “prevention first policy” obliges the state to provide preventive measures that effectively control and mitigate negative impacts on natural resources to a level at which human health is protected and sustainable development is achieved. The objective of this policy is to integrate environmental protection into national economic development in order to control and manage the environment. As early as 1972, the “prevention first policy” was, although merely as a slogan, mentioned in several decisions and gradually referred to more frequently in the context of technology improvements and rational utilization of resources. Provisions issued by the State Council on this matter were later implemented in subsequent legislation, particularly in the Environmental Protection Law and in specific pollution prevention laws.
Implementation Environment Law In China
Environmental impact assessments. One effective instrument for pollution prevention is the use of environmental impact assessments (EIAs) for the building of new and expanding projects with potential adverse effects on the environment. China introduced the concept of environmental impact assessments in the 1970s in the form of a national policy which was later adopted by the Environmental Protection Law and the specific protection and conservation laws. However, as these provisions set out only general requirements on this matter and particularly lacked implementation measures, a number of administrative regulations and guidelines had been issued over time. In order to unify these highly scattered and overlapping regulations, a new law on environmental impact assessments came into force in 2003 that basically reaffirms and broadens the pre-existing provisions. According to the Law, all programmers and plans on land use and development projects for natural resources are subject to environmental impact assessments. EIAs should also be conducted on development planning concerning energy, water management, transportation tourism, agriculture and forestry. Principally, such assessments include an analysis and prediction of the project’s effects on the environment as well as measures and strategies aiming to mitigate and prevent negative impacts supported by technical expertise. Based on the extent of the potential environmental impact, assessments of any construction project, expansion or modification are divided into three categories. Detailed environmental impact reports are required for construction projects that are likely to cause a range of significant adverse environmental impacts. Projects that may have a limited number of impacts are subject to an analysis, whereas those just having a negligible impact require no assessment and simply need to complete a registration form. The Management List issued by SEPA supplements these regulations by providing criteria for the predetermination of possible adverse environmental impacts according to industries, products and activities.
Treble simultaneity. The principle of “Treble Simultaneity” or “Three Synchronizations” has been a core feature of the Chinese environmental protection system since the last three decades and was introduced as the main instrument for pollution prevention and control in 1972. After the implementation of the environmental impact assessment requirement, the “Treble Simultaneity” principle was integrated into this process, but remained an important component of the Chinese environmental protection policy. Basically, this principle imposes the integration and installation of pollution prevention and control facilities during all stages of the project development, including the phases of design, construction and operation. No permit shall be given until its prevention and control facilities comply with the respective standards. This refers to every new or modified infrastructure project, technical improvement project or natural resource development project that may damage the environment. In detail, the construction entity has to submit the preliminary design of the facilities for prevention and control of pollution to the local environmental department for approval. During the construction phase, the builder has to protect the environment around the construction side from pollution like noise, dust or vibration and is finally obliged to put prevention and control facilities into operation simultaneously with the operation of the construction itself.
Cleaner production. The concept of cleaner production has been adopted in order to promote the sustainable use of natural resources by continuously applying preventive strategies to processes, products and services in order to increase their eco-efficiency and to reduce their risks to human health and the environment. In respect to the production process, cleaner production refers to the efficient use of energy and resources, to the elimination and decrease of hazardous raw materials as well as to the amount and toxicity of emissions and waste. With respect to products, cleaner production focuses on the reduction of adverse environmental impacts throughout their entire lifecycle, from raw material extraction to the ultimate disposal of the product. Various laws include provisions on cleaner production measures. In 2002, the Cleaner Production Promotion Law was enacted to provide a coherent framework aiming to encourage cleaner technical development, scientific research and international co-operation to develop cleaner production mechanisms. The Law obliges any unit and individual being engaged in the production or provision of services to implement systems for cleaner production. Enterprises in particular are obliged to make use of raw materials which are recycled and non-hazardous and must adopt adequate prevention and control technologies. A guidance catalogue on cleaner production technologies, processes and equipment shall be released periodically by the economic and trade administrative department of the State Council. A compilation of industry and region-specific cleaner production guidelines for the implementation of this policy shall be issued by the relevant administrative departments of the State Council in co-operation with the provincial people’s governments, autonomous regions and municipalities.
Land Planning Rules. Land Planning Rules are used in China to promote sustainable social and economic developments by co-coordinating environmental issues with the social and economic needs. Land-use plans focus on the construction and design of cities, towns and villages as well as on the layout of industries, infrastructure and agriculture. Environmental protection measures must be incorporated into these plans, demonstrating the integrative starting point of the “prevention first policy”. Since almost two-thirds of China’s population resides in rural and often remote villages or towns, village and town planning plays a key role in achieving sustainable social and economic developments. In 1993, the State Council released the Management Regulation of Construction and Planning of Villages and Towns. It states that the planning shall follow national economic and social development guidelines, taking into account the local situation, the environment and resources, as well as the historical situation. The regulation aims to protect and improve the economical outline conditions by means of preventing and controlling pollution, improving the appearance of villages and towns and their hygiene infrastructure. For instance, the development of greenery and afforestation is encouraged. As a basic principle, construction should only take place on non-farming land. Relevant provisions for city planning are stipulated by the Environmental Protection Law and City Planning Law, stating that developments shall undergo detailed planning as well as strict management and may not deteriorate the environment or affect its various functions.
III.D.ii.a. Content and legal basis
The environmental liability policy or the “polluter pays principle” is based on the idea that the polluter shall be responsible for pollution control and liable for the recovery of any damage or loss. The legal basis of this policy is laid down in the Environmental Protection Law. Article 19 of the Environmental Protection Law states that measures must be taken to protect the ecological environment while natural resources are being developed or utilized. Article 28 of the Environmental Protection Law states expressly the polluter’s liability for the elimination and control of the pollution. Various Pollution Prevention and Control Laws provide for discharge fees as monetary compensation and for an additional compulsory levy on the excessive discharge of pollutants.
According to the “polluter pays principle”, the discharge of pollutants shall result in the payment of discharge fees and in additional fees for exceeding national or local standards. The environmental departments are responsible for levying those fees, whereas the specific usage of the income derived from this fee shall be stipulated by the State Council and be appropriated for the prevention and control of pollution. The polluting entity has to register with the competent environmental authority and to report the categories, quantities and density of the pollutants as well as its technical equipment. It lies within the competence of the environmental departments to examine the submitted data and to issue the notice of payments. Refusing to report, submitting a false report and failing to pay may be fined. As a remedial measure, after the pollution has occurred, the polluting entity shall be required to bring pollution and damage under control within a specified time. The relevant period will be decided for each specific situation and with regard to the difficulties involved in controlling the pollution. The introduction of pollution prevention and control facilities can be enforced. Failure to conform to the established deadline results in fines, serious violations or closure. The environmental department has the discretion to decide on the amount of the fine, whereas the decision to shut down lies with the local government.
III.D.iii.a. Content and legal basis
The environmental management policy includes the supervision, monitoring and enforcement of activities aiming to prevent, mitigate and eliminate environmental pollution. The area of responsibilities reach from the examination of documents to in-field investigations and cover the period of time prior to and after the environmental harmful activity or event has taken place. The legal basis of this policy is laid down in the Environmental Protection Law as well as in numerous provisions of specific environmental protection and conservation laws.
In comparison to other legal systems that refer to a comprehensive licence and permit system as one of the most important preventive measures of management and supervision, China’s permit system is still in its developing stage. Although single laws state such requirements for certain activities—e.g. the City Planning Law for construction projects, the Forest Law for the cutting of trees or the Marine Environmental Protection Law for the discharge of waste into the sea—neither China’s Environmental Protection Law nor Water Pollution and Air Pollution Laws contain provisions on this matter. However, broadly applied is the pollution emission report and registrations system that requires facilities to report their pollutant’s categories, quantities, concentrations as well as their technical equipment to the local environmental department. In addition, environmental law delegates the authority to inspect facilities onsite to environmental departments at various levels. Mandatory measures exist to enforce compliance. According to the Rule on Environmental Administration Sanctions, the nature of the violation, the relevant laws and regulations as well as valid evidence have to be stated in an order. Administrative tools range from the issuing of warnings in cases of lighter violations to the suspension or termination of licences and permits if prescribed standards are not met and include the seizure and transfer of objects, the withdrawal of sites and the mandatory dismantling or shutdown of illegal constructions. In severe cases, the licensee faces a fine and a confiscation of his property. Also, an administrative punishment system has been established providing measures to respond to violations of environmental laws constituting no criminal offence. Such measures are detention and re-education, and confiscations of the illegal income and of the instruments used. Ultimately, economic incentives for achieving environmental protection targets have been introduced. Under this system, heads of local governments and enterprises are held responsible for attaining certain targets. Contracts are signed that list the environmental protection objectives and indicators for failure and success. Achievements of targets are rewarded with monetary grants, bonuses and awards, and generally result in profitable publicity of the well performing bureau or enterprise. Failures can cause fines and often lead to personal criticism affecting personal careers.
Considering China’s short environmental law history, quite a comprehensive set of legislation has been developed. Nevertheless, there is little doubt that the implementation of environmental law in China has not been as successful as its formulation. Various causes have contributed to this situation. One important reason is the highly general, often vague and aspirational language that constitutes a familiar feature of Chinese law. Significant elements of many major environmental measures seem more akin to policy statements and propositions of ideals than to laws.Typically, actions are encouraged but rarely required and even where concrete duties are stated, only little guidance is provided on procedures and specific goals. One crucial factor is the frequent use of the word “should” (ying/yinggai) rather than of the stronger term “shall” (bixü) or “must” (dei). These words are not used interchangeably, since several laws distinguish between them, suggesting that the different wording has a specific meaning. For instance, according to Articles 20 and 22 of the Desertification Prevention and Control Law, farmers and herders located in protected desertified areas shall be resettled whereas new cultivations on desert margins should not be permitted.
Numerous environmental laws suffer from vagueness and put forward general, almost exhortational terms. Even the amended Air Pollution Prevention and Control Law provides, in Article 19, that “enterprises shall give priority to the adoption of clean production techniques” and, according to Article 30, enterprises “shall gradually adopt measures to control nitrogen oxide”, while the local governments shall “redouble their efforts in afforestation, grass-planting, urban and rural greening and take effective measures to do well the work pollution and sand control”.This clearly demonstrates the difficulty of evaluating and determining the potential of China’s environmental statutes to direct specific behaviour. A significant factor contributing to this situation is the lack of definitions in Chinese environmental laws. Moreover, since most environmental-related disputes are brought to the people’s courts in the form of civil actions and typically result in a mediated agreement between the parties, there is virtually no environmental case law to guide the interpretation of undefined terms. As a result of this vagueness, areas of potential overlap and uncertainty arise. For example, the Environmental Protection Law broadly requires “all units and individuals […] to protect the environment” and states that local governments are “responsible for the quality of the environment and shall take measures to improve the environment”. Similarly, the Environmental Protection law prohibits units from transferring facilities that “cause severe pollution” and obliges units to “adopt effective measures to prevent and control pollution that harms the environment”. Generally, these statutory provisions need to be supplemented by regulations or standards. Although China’s body of such measures is improving, in numerous cases, they do not exist or are just as general or even shorter itself. Typically, they merely duplicate the content of the national law and do not provide guidance specifically tailored at the particular targets, which leaves disproportionate interpretative discretion to sub-national officials.
Additionally, numerous provisions are still framed in terms of state plans that hardly adapt to current realities. Since the first generation of environmental laws were drafted at an early stage in the reform process, following the period of the Cultural Revolution, one of their main features are policies reflecting central planning rather than specific regulations. This is evident particularly with regard to the audience being addressed and to the measures being employed. For instance, most environmental laws presume that the economy is solely comprised of two sets of actors—individuals and enterprises—remaining, at least to some degree, in state ownership. The current laws simply do not cover the wide range of corporate and other entities that are part of China’s contemporary legal system. In fact, very often, it is not clear whether and how key provisions apply to non-state enterprises Furthermore, core principles of Chinese environmental laws as state economic plans aiming to direct behavior are of diminishing relevance nowadays, since state planning has considerably lost its significance and former force. These plans are predominantly measures of a planned economy which, in its initial sense, does not exist anymore.
Ultimately, China’s environmental legal regime is far from complete. Statutory deficiencies arise, since China’s environmental regulatory system still fails to capture important issues. For instance, pre-existing pollution sources have not been addressed until now, although historical contamination constitutes a major problem in China. Up to the present, no policy has been adopted that requires polluters to restore degraded property and to recover its pre-degradation status. Neither clean-up standards for contaminated soil have been issued nor has liability in relation to toxic waste remediation been introduced. Besides, China’s licence and permit system is still in its infant stage. Merely single laws require prior permission for certain activities; neither China’s Environmental Protection Law nor the Water and Air Pollution Law contains such provisions. Moreover, China’s environmental laws generally give only little guidance on the specific demarcation of responsibilities amongst government bodies and few detail on the implementation process.
Generally, the success or failure of laws depends on how effectively they are enforced, especially at the local level. However, local governments are often major shareholders of polluting enterprises creating an inherent conflict of interest. Nevertheless, the laws presume that environmental protection bureaus representing a part of local governments will successfully co-ordinate with the national body, SEPA. In theory, the People’s Republic of China operates as a unitary national state where legislation and directives emanate from central Beijing to which sub-national units of governments must adhere. In practice, however, this high degree of administrative cohesion does not exist. The laws fail to anticipate the possibility that certain government interests might diverge sharply from those of the environment department and create a major obstacle to strict enforcement of both national and local environmental legislation. In reality, sub-national administrative departments rather tend to look to the people’s governments at their own level than to central authorities, since their funding and enforcement powers rely on local district authorities. The fact that local governments very often sponsor or own industries themselves and consider environmental regulations to be incompatible with economic growth makes it difficult for environmental protection bureaus to enforce their policy. Although the State Environmental Protection Agency has formal authority over lower-level agencies, this national agency does not have much leverage in ensuring that national regulations and standards are enforced at the local level. It is common practice that environmental issues are treated more as a matter of policy rather than law and personal relations are often decisive.Fees and fines are rarely determined authoritatively; instead, they are often negotiated and fall far below the cost of damage that the harmful activity has caused, as well as below expenses for pollution control facilities. The money derived from fees are made available to the polluters in the form of grants and credits nominally for investments in control facilities; however, no adequate supervisory mechanism exists. This undercuts any incentive for firms to invest in preventive measures. Moreover, enterprises appear to view these fees as entitlements for their unlawful acting, whether or not they have improved their pollution control equipment or intend to do so. Also, the local influence on courts is considerable and not limited to financial matters. Besides the fact that court-operating expenses are funded by local district authorities, local citizens also join the judge as “people’s assessors” in hearings and local party officials generally have a significant impact on the jurisprudence and career advancements.
Furthermore, effective implementation is undermined by technical and organizational shortcomings. For instance, under the Solid Waste Pollution Prevention and Control Law, all enterprises are responsible for disposing of their own industrial solid waste. However, as adequate waste disposal, treatment or incineration facilities still need to be built in China, generators of hazardous waste are left uncertain with respect to compliance options. Very often, environmental standards are compromised by China’s economic and technological development. The organizational weakness of the environmental protection organs is due to their lack of staff, financial resources and technical expertise.Moreover, in some areas, authorities overlap, whereas in other areas, environmental agencies lack authority. Especially in cases of overlapping competences, hardly any measures for co-operation processes exist that could modulate deviating enforcement policies. Particularly, the concept of “unified management and supervision” that, according to the law, shall be conducted by SEPA is not clearly defined. SEPA itself is poorly co-ordinated with other administrative agencies and with its subordinate environment protection agencies. As a result, SEPA has little information on the developments on the local level and therefore little ability to ensure that national laws are strictly enforced. Consequently, the success in environmental protection work depends on local environmental enforcement officials.
Ultimately, any law lacks teeth unless public involvement fostered by education and media coverage promotes and accelerates the implementation process as an external factor. However, in contemporary China, the scope of public participation in environmental protection and for independent political activism is limited. The Environmental Protection Law frames citizen participation principally in terms of a “right to report and file charges against units or individuals that cause damage to the environment”. Obviously, the role of citizens favoured by the law is that of reporters and controllers who refrain from any initiative that could potentially interfere with governmental policy. No doubt, China’s authorities are aware that citizen participation may provide a major impetus for broader systemic reform. Involvements of NGOs traditionally have been restricted in China and even today, they are deemed to harbour dissidents and threaten the authority of the state. The first NGOs appeared in China in 1994. Current regulations require any citizen group to be sponsored by and to be accountable to a government or party work unit. Only one group with a particular focus may register at any administration level and may not operate outside the place of its registration. Neither a transparent registration system nor a framework for foreign NGOs exists. Nonetheless, China is gradually perceiving NGOs as an additional factor influencing the public and admits them to play a more active role. The number of NGOs is growing and mass media have increasingly addressed environmentally related issues. Local EPBs prepare television and radio information programmes that air daily and conduct activities ranging from the development of curricula for education from kindergarten through to university, holding seminars for factory managers to projects such as tree planting or garbage collection. With the increasing income and living standards, as well as with the emergence of middle-class society, public awareness of environmental issues has already increased and this public impact will very likely continue to grow.
A booming economic expansion has transformed the People’s Republic of China over the past two decades. China’s enormous economic growth has elevated China into the ranks of the world’s economic and political powers and sets the country on course to become a global superpower. This advance has undoubtedly improved people’s living standards, although significant regional differences have arisen and social disparities are growing. China’s remarkable development has had its costs, particularly to the natural environment. The country does not only face environmental problems, such as soil erosion, deforestation and desertification typically associated with a developing and overpopulated agricultural society, but also those of an industrialized country having to deal with a welter of pollution and resource exhaustion. Surprisingly, China has quite a comprehensive set of environmental legislation. Considering the country’s short environmental law history, respectable achievements have been made in a short period of time. Nevertheless, China’s law regime has not been able to control the further deterioration of the environment. Actually, environmental laws suffer from the same infirmities and enforcement problems that characterize contemporary Chinese law in general. One result of legislation in the last years is a proliferation of overlapping and contradictory laws and regulations administered by agencies with varying commitments to and experiences with formal legal processes. This complicates law enforcement, particularly when environmental issues are concerned, that are often in tension with China’s economic development. The vague statutory language of laws that still has significant imprints from socialist ideas hardly adapts to current realities. Statutory deficiencies combined with local protectionism, personnel and technical shortcomings, week courts and traditional restricted public participation capabilities are major obstacles to the implementation process. China’s environmental protection regime is a system that rather seeks to secure compliance by punishment as opposed to preventive incentives and in which party and local interests all too often interfere into the functioning of the regulatory regime. However, the inherent problem of China’s environmental legal system is the wide discretion local agencies have in addressing environmental issues. In fact, local governments have gained considerable administrative and fiscal autonomy from the central government. While achieving more autonomy, local governments have to cope more and more with hard budgetary restrictions. They are responsible for generating most of their own revenue and balancing their own budget. Such a system generates considerable pressure at the local level to compete in attracting and promoting economy-building companies. Local governments very often sponsor or own industries themselves and consider environmental regulations to be incompatible with economic growth. Since environmental protection bureaus obtain their funding from sub-national governments of which they are part, the enforcement of environmental policies faces significant financial constraints and is frequently undermined by economic pressure. Although the State Environmental Protection Agency has formal authority over lower-level agencies, this national agency does not have much leverage in ensuring that national regulations and standards are strictly enforced at the local level. Besides, numerous national pollution standards are so lenient that they hardly have an effect. Unless local governments are motivated to enforce environmental policies, economic growth will, due to the existing competitive pressure, be given priority at the expense of environmental protection. In general, a decentralized administrative system is not antithetical to effective environmental management. On the contrary, it enables local governments to introduce environmental policies according to the particular circumstances. However, unless a high level of environmental consciousness is developed among local residents and effective means provided for pressuring local governments to integrate environmental policies into their development efforts, little more will be achieved than just enlarging China’s existing and already proliferating body of statues. Whatever measures are pursued, they need to be adapted to the specific challenges deriving from China’s contemporary political, economic and social context. The key factor—the interest of local governments to focus almost exclusively on continued economic growth—needs to be addressed. This calls for regional approaches that provide financial support to poorer regions in order to cut across the existing sub-national political boundaries. Local governments should be evaluated not only on how their economy performs, but also on how successfully they deal with environmental challenges. Further measures will include clarifying institutional responsibilities, increasing the precision of existing laws, adjusting fees and fines closer to the actual damage caused by the harmful activity, strengthening the personnel and technical capacities of China’s grossly understaffed and under-funded environmental administration departments, as well as improving environmental participation and education. Particularly, NGOs and the international community play a crucial role in terms of policy advice and in providing expertise and financial resources.
Realizing the dynamic economic development and the evolving political system, China’s environmental future is difficult to determine. To the extent that China’s leaders perceive the interconnection between economic growth and environment and see stabile economic advance as depending on sustainable development, the more likely they will integrate environmental protection policies into the nation’s long-term economic efforts. Optimally, China’s accelerated growth will involve greater investment in national and local environmental protection. This greater wealth in tandem with an increasing level of education and public participation could contribute to the formation of a green movement that promotes resources saving and recycling measures. In addition, China’s growing integration into the international community, in particular through the membership in the WTO and environmental aid from global organizations, could support the country’s sustainable development. Environmental progressive cities such as Beijing, triggered by the Olympics in 2008, could become models for other parts of China. Important political decisions towards more certain individual rights that are indispensable for effective environmental protection have recently been made by incorporating the guarantee of private property into the constitution. However, there also is the possibility that these reforms initiated by the economic and social development will not be reflected in improved environmental conditions throughout China. The heterogeneous management of local environmental protection policies could rigidify and exacerbate the common practice that only the wealthiest cities with environmentally inclined mayors invest in the environment. Adding to this picture the continued population growth, an increasing number of motor vehicles and industrial and household waste, a further deterioration in China’s environmental situation seems very likely. Without the necessary reinforcement from Beijing and a growing private influence from NGOs that facilitate free public discussion, this scenario does pose a realistic presumption. Whatever path China will follow, its environmental policy will without doubt have a significant impact on global scale. Capacity building in state and non-state sectors involved in environmental protection and economic development will definitely be indispensable. Nevertheless, regardless of what efforts are made, unless adequate regulatory measures exist and are enforced, environmental law in China will continue to play an uncertain and ambiguous role.