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An Environmental Law with Teeth
   2014-08-27 10:43:54    CRIENGLISH.com      Web Editor: Cui

After the central government declared war on pollution, the legislative process churned out an amendment to the country's Environmental Law in April which determined that polluting enterprises could now face even harsher punishments if they choose to pollute their way to profit. The amendment also gives enforcement personnel the power to shut down heavy polluters if violators fail to comply with environmental regulations. But just because there are laws in place doesn't mean that the desired outcome will be achieved.
China is no stranger to problems related to the implementation and enforcement of certain laws, and environmental laws are no different in this regard. Overseeing China's immense industrial sector requires a legion of enforcement personnel, but the number of people available to China's environmental agencies is just a small fraction compared to that of the United States' Environmental Protection Agency. From a governmental standpoint, enhancing environmental protection requires a great deal of political will at the local level; something that has been severely lacking in the past. Meanwhile, the amended law tries to encourage more public participation but lawsuits launched by individuals against polluting industries often lack potency and struggle to overcome the vested interests.

MESSENGER asks the experts their opinions on this year's amendment to China's Environmental Law and what the main problems are when it comes to enforcing the law and protecting the environment on the Chinese mainland.

Alex Wang is an Assistant Professor of Law at the University of California, Los Angeles, and prior to 2011 he also served as senior attorney for the Natural Resources Defense Council (NRDC) based in Beijing and was the founding director of the NRDC's China Environmental Law and Governance Project.

The Amendment

The new law has a number of provisions that are significant changes form before. There is a lot of attention paid to fines per day. Previously, if a polluter violated the law they would be fined once and there would be no additional incentive for them to come into compliance more quickly. So now, for each day that a polluter continues to violate they can be fined in additional amounts and the fines increase, the longer it takes for them to come into compliance. There are some interesting enforcement provisions, such as the right to detain persistent violators for 15 days, very interesting provisions on open information, public participation and public interest litigation. The big question is how these will be implemented.

Punishing Violators

One of the fundamental problems in the past in China was that the punishments for environmental violations were just not very significant. So, the new law is good in that it gives stronger authorities for punishment. But the big question is will local regulators use those authorities? In the past, when fines were capped at a relatively low level, often local regulators wouldn't even issue fines up to that very low cap. This has to do with issues of local protectionism; is the local regulator free to enforce strongly when local governments feel a lot of pressure to push very rapid economic development? Those kinds of structural tensions in the past have limited the ability of regulators to enforce strongly, so the law is very good in that it expands on authority and takes away the legal barrier for stronger enforcement, but the question is, politically and as a matter of practice and implementation, can the local regulators use these new authorities?

Changes Still Required

There are a number of possible further changes that are still needed. Take the issue of local protection. Local governments in China and the US often feel a lot of pressure to prioritize economic development over environmental protection. In the US, a big change came in the 1970s when the federal government took a much stronger hand in monitoring and enforcing. So, the equivalent in China would be if the Ministry of Environmental Protection had more resources and a greater ability to take a look at local implementation and define the places where there's very bad local implementation and punish the local governments and local polluters.

A critical element in just about any country's environmental protection is the role of the public. Local people who are affected by pollution are the ones that care the most about reducing pollution. If citizens are able to identify problems and have their voices heard, to help put some pressure on polluters to reduce their pollution; that can be an extremely powerful force.

The Problem with Public Participation

The problem in the past was in terms of priorities, economic development trumped environmental protection. If citizens wrote articles or talked to the media and raised objections, most of the time those objections were not heard; so there was no response to them to improve environmental projects. The result is the public feels that the official channels are not responsive. Potential options are the courts ĘC Will courts be able to make difficult decisions against polluting factories? The history has not been good on this. Courts have been very weak and have not been willing to sometimes even accept cases that affect very valuable economic interests. It's an open question as to whether courts can play a greater role in the future, and I hope they do.

The other possibility is can the environmental regulators really withstand the pressure from economic interests and other vested interests and actually enforce? In the past few decades, it's been very difficult for the local regulators to do it and the central agency hasn't had enough resources to really enforce. So that's an open question as to whether that will change. In particular, will the central agency get enough resources to really put some pressure on local polluters?

What's very promising about the environmental area is that there has been the space for the public to get involved. There are more NGOs probably in the environmental area than in any other topic area. They've been very active in educating the public and also advocating for policy changes for better environmental reinforcement. Citizens are very interested in having a clean environment, so they've been very active even if they're not experts. There are dozens if not hundreds of cases every few months, every year in China where the public gets involved and tries to affect the way the polluters behave. If the public is allowed to continue to do this, and educate themselves to get the information they need to understand what the problems are, and also to mobilize to express their views and create some pressure for better enforcement, I think that will be a really critical element, and will be essential if China wants to turn around its environmental performance.

Learning from the US

The experience in the US in the early 70s was that a lot of polluters tried to test the law and tried to not comply. So, it required the government and citizens to take these polluters to court and courts to make tough decisions according to the law to get these polluters to change their behavior. And so that's the key, it's all about can we make the polluters change their behavior, can we make them invest the money to reduce pollution? No one is saying that we don't want to have strong economic growth. We just want the factories to be responsible and not put the cost of their pollution onto the public. The experience in the US was that pollution dropped drastically in the 70s, 80s and 90s while economic growth continued to increase substantially. So, it's really the best of both worlds: a stronger economy and a cleaner environment.

Lin Feng is acting Dean and Professor of the School of Law at City University Hong Kong and specializes in Chinese law and environmental law.

The Amendment

One highlight which has been mentioned by many scholars is the public interest litigation. Under the new law, more NGOs have been granted the standing to bring litigation on behalf of public interest. That's definitely a plus.

Harsh Punishments

They're very essential. If you have an arbitrary ceiling there, that has led to the previous serious pollution in many aspects. In the past, the polluters will judge and evaluate the pros and cons and also the costs and benefits. If the penalty they pay will be less than the benefits they obtain then they're willing to pay the penalty. So, the penalty must be high enough to make sure that not only will polluters not benefit at all but also they will pay a serious price. But that's only one step. In the actual judicial cases, when the cases are brought to the court, you need to make sure that the judiciary will actually implement and enforce it and make sure they pay a big price for polluting the environment.

Problems with Enforcing the Law

This actually goes to the essence of the whole legal enforcement and the effectiveness of the legal system. You need to have a real consciousness about the rule of law. If all people take the rule of law seriously, then they will implement the law properly, no matter whether it's the government or the polluters. Take Hong Kong as a comparison, if you ask the law enforcement agency, their position is very clear, we don't have any views ourselves but our role here is to enforce the law. Whatever the law says then we will enforce it, if there's something wrong about the law then you go to the legislature. In Hong Kong, the rule of law concept is taken very seriously by the people. In China, I think that's still a serious problem because the local government and other various vested interest groups, once their interests are in concern they simply may ignore the law or put pressure on the judiciary not to enforce the law properly.

If you don't have enough law enforcement officers to enforce the law then no matter how good the law is it won't be able to be enforced. Law enforcement should come from two angles, one is the pro-active approach taken by the environmental protection agencies at various levels. Another is to rely on the public, because nowadays the public's awareness of the importance of environmental problems has increased significantly. If we use (the public) properly, it can compensate to a certain extent the shortage of staff at environmental protection agencies.

The Need for Political Will

If you look at incidents that have happened in Guangdong and other places, you will see that the public's interest in participating in the environmental impact assessment is high if their personal interests are affected. One issue there with genuine public participation is the effectiveness of their participation and what will happen if their views have not been taken seriously, whether there's a legal remedy for them to move further; that is an issue in the current public participation in China. A more fundamental issue here is actually related to the political will of the government at various levels. It will be only effective if you have a total amount of control. In the American system they have what is called the bubble. The bubble is fixed, so if you want to increase more, create or establish a new polluting enterprise, it has to purchase from someone else. They can't increase the total amount. The total amount must be fixed and gradually reduced; but that (relies on) the political will of the government.

Political Unwillingness

I think the root cause behind (the lack of political will) is the political careers of the leaders. Take the local government for example, or even the central government, the possibility is if you have a very clear and strict rule, have a bubble there saying this is the total amount of water pollution for example; you cannot exceed, anybody who exceeds this then we will not approve. The consequence is that local GDP may not increase as much as you want and if you don't get that increase maybe you wouldn't get promoted. So that sort of consideration will affect the political will.

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