Environmental Protection under the Rule of Law

THE new Environmental Protection Law, which took effect on January 1, 2015, has been described as the harshest of its kind in Chinese history. It signifies compliance with the rule of law in efforts to preserve the country’s environment. The latest revisions highlight the obligations, rights, and interests of the government, corporations, and the public. They also entail stronger measures and give law enforcement agencies greater authority.

Uncompromising Rules

The Standing Committee of the National People’s Congress (NPC), China’s top legislature, adopted last April revisions to the Environmental Protection Law, the first such change in 25 years. The amendments are extensive, and expected to bring about profound changes to China’s environmental protection.

Shortly prior to the Beijing APEC meetings last November the Ministry of Environmental Protection conducted comprehensive supervision and regulation of regions surrounding the Chinese capital to ensure reasonable air quality during the event. Polluting enterprises were ordered to halt production for overhauling purposes, and drones were dispatched to monitor pollution. “This was, of course, an out-of-the-ordinary occasion, but nonetheless entailed unprecedented coverage and exhaustive measures,” chief of the ministry’s Policy Research Center for Environment and Economy Xia Guang said. These draconian measures worked, as evident in the blue skies over Beijing throughout APEC week.

After the promulgation of the new Environmental Protection Law, Shandong Province upgraded the criteria for 1,000-plus local environmental standards to a level higher than the national standard. The move ratchets up pressure on local businesses, but is also a blessing in disguise as it creates incentives for industrial upgrading. That effective environmental protection adds to a region’s competitiveness has long been widely acknowledged.

In Xia Guang’s opinion, 2014 was a turning point for China’s rule of law, as manifest in environmental protection, and real breakthroughs can be anticipated in 2015.

Regulations and standards have been gradually improved, so setting the pace for more efficient environmental protection law enforcement. Having made its stance on pollution clear, the state intends to involve the public at large in environmental management. It will also summon broad ranging institutional support for environmental protection from all social sectors – economic, political and cultural – so adjusting the country’s development to a more environmentally friendly mode.

Well-rounded Supportive Measures

The Ministry of Environmental Protection issued four consecutive decrees in mid-December, 2014 supplementing the new environmental protection law, all of which came into effect on January 1, 2015. They include investigation and disposal of environmental contingencies, cumulative daily fines for failure to rectify violations, closedowns, sequestrations, production limitations and suspensions, and environmental information disclosure.

On January 4 Guangzhou City’s environmental authority discovered in its suburbs an unlicensed mineral oil processing plant that was illegally collecting, storing, and disposing of waste lubricant. Law enforcers accordingly seized the relevant equipment.

Article 25 of the new law includes provisions on the sealing up or sequestration of the culprit infrastructure and equipment of an entity that illegally discharges waste, so causing or potentially causing serious pollution. A supplementary statute further defines these measures, their applicable scope and procedures, targets, supervision, and inspection.

According to the statute, environmental authorities are authorized to seal and sequester equipment that is used to illegally discharge, dump or dispose of waste containing contagious disease pathogens or heavy metals, hazardous waste, or persistent organic pollutants; to discharge, dump or dispose of pollutants in grade-one protected drinking water source areas, or in core areas of nature reserves; to covertly pipe wastewater underground through various means; or to tamper with or forge monitoring data to an egregious extent. Such authorities are authorized also to seal or sequester the equipment of enterprises that fail to suspend production or stop emissions as required after major environmental accidents.

Of the four decrees promulgated in the wake of the new environmental protection law, that stipulating cumulative daily fines is believed to have the strongest deterrent effect. “Culprits of abhorrent violations can face both economic punishments, including cumulative daily fines, and administrative penalties, such as sealing off and sequestration of properties, production suspension or limitation, and detention,” deputy director of the Ministry of Environmental Protection Bureau of Environmental Supervision Cao Liping said at the recent press conference announcing the new law.

The old law imposed a timeframe within which polluters should cease their illegal activities. Offenders, however, often found ways of continuing to break the law far beyond the time stipulated. The new law, however, imposes fines calculated cumulatively according to the number of days the violation continues, no matter how long. This, Cao said, is a strong polluting disincentive.

The four decrees all place the principal responsibility for controlling pollution firmly at the door of the offenders. Under the new environmental protection law, rather than carrying out a one-off examination, environmental authorities do follow-up checks after a polluting enterprise has been apprehended. When such a business is ordered to cut off or suspend production, it is required to submit a correction plan to the local environmental authority and to carry out self-monitoring in the course of cleaning up pollution. Exactly when it resumes production, therefore, depends on its own monitoring data. After the business concerned has reported to the environmental authority the results of its self-monitoring, the authority carries out follow-up checks within a set number of days. Any recurrence of the violation may incur a close-down by the government. “This means life or death to a business, so must be taken seriously. Meanwhile, the new regulation saves government costs,” Cao said.

China will roll out a nationwide campaign to oversee enforcement of the new environmental law. The Ministry of Environmental Protection is also working on 54 more regulations to supplement the new law.

Procuratorates as Plaintiffs in Environmental Cases

In November 2014, the procuratorate of Jinsha County, Bijie City of Guizhou Province, sued the local environmental protection authority for lame law enforcement in connection with a local developer’s defaulted payment of sewage discharge fees. This was the first case where a procuratorate was the plaintiff in a case against the environmental arm of the government.

This lawsuit was in response to the decision on advancing the rule of law in China adopted at the Fourth Plenary Session of the 18th Central Committee of the CPC. The decision states that the country will foster a mechanism that enables procuratorates to initiate public interest litigation. It is consequently of monumental significance. It and the mechanism it portends will goad environmental authorities to conscientiously perform their duties according to law, so contributing to the construction of a law-based government.

On the day the new environmental protection law took effect, non-governmental organizations The Friends of Nature and Fujian Green Home received from the Intermediate People’s Court of Nanping City of Fujian Province notification that their case against local enterprises that were carrying out illegal quarrying and logging had been accepted. The municipal procuratorate supported the plaintiff. In the previous month, courts in Taixing of Jiangsu Province and Guangzhou of Guangdong Province both handled lawsuits on environmental issues in which procuratorates threw their weight behind the plaintiffs.

This trend implies better enforcement of the environmental protection law. As Professor Wang Canfa of China University of Political Science and Law sees it, “I in general disapprove of the procuratorate initiating civil lawsuits, but approve of public interest ones. Procuratorate supervision can be seen as a Damocles sword hanging over government departments, reminding them that inaction will result in prosecution.”

There is so far no law or regulation on the procuratorate’s involvement in public interest litigations, according to director of the Teaching and Research Office of the Constitution and Administrative Laws under the Political Science and Law Department, Party School of the Central Committee of the CPC Wang Yong. Since no set rules exist on the procuratorate’s participation in such litigations, the handling of such cases requires explorations and trials.