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Environmental Law andPolicy in the PeoplesRepublic of China

Stefanie Beyer

Abstract

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 Peoples Republic of

China. In order to assess the current state of Chinas 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

Chinas environmental protection regime is surprisingly comprehensive, even

though statutory deficiencies exist, and will highlight enforcement tensions

between the centre and the peripherya result of decentralization and growing

local protectionismas major obstacles to the implementation process.

I. Introduction

The cornerstone of effective environmental protection is a countrys 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, econ-

omic and social transformation of the country. Especially, the creation of the environmental

regulatory regime has played a notable role in the evolution of Chinas legal system and is

increasingly seen as integral to the countrys future development. Chinas environmental

legal framework is rather young and started almost from scratch in the early 1970s after

....................................................................................................................................................................Chinese Journal of International Law (2006), Vol. 5, No. 1, 185211 doi:10.1093/chinesejil/jmk002

Dr. Stefanie Beyer, LL.M, works as lawyer in Cologne, Germany (email: [email protected]). This

paper constitutes the first part of the master thesis Environmental Law and Policy in the PRC: Shaping

an Environmental Protection Regime for Green Olympics 2008 in Beijing. Im grateful to my tutor,

Mr Robert Home, Director of Research and Reader in Land Management/APU Cambridge, and to Mr Alexander

Beckers, who always has helped me patiently with the layout. The paper was completed on 4 December 2005.

1 William P. Alford and Yuanyuan Shen, Limits of the Law in Addressing Chinas Environmental Dilemma,

16 Stanford Envtl. LJ (1997), 125.

#The Author 2006. Published by Oxford University Press. All rights reserved.Advance Access publication 17 February 2006

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the countrys attendance at the Stockholm Conference on Human Environment. In the

subsequent era of Chinas open policy and reform, initiated by Deng Xiaoping, the environ-

mental 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 preven-

tion and control legislation. However, the formal legislation has hardly been translated into

effective controls. Chinas efforts have been complicated by enforcement tensions which have

arisen between the centre and the peripherya 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 Chinas present regu-

latory 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 nations long-term economic development. Moreover, when addressing

this question, Chinas 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 Chinas 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 compar-

ative research among Chinas 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 countrys growing international significance due

to its enormous economic expansion that accompanied Chinas 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 Chinas

186 Chinese JIL (2006)

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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 con-

taminated water supplies for one of Chinas biggest citiesHarbin in north-eastern Heilang-

jiang provinceand threatened neighbouring Russia.2

II. Chinas geographic and environmental setting

Chinas 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.3 At the same time, this development has also produced pressing environmental pro-

blems. China has the worlds 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 Chinas population lives on 13 per cent of Chinas territory, resulting

in a high population density of 118 persons per square kilometre, imposing enormous

burdens on the environment.4 A dramatically increased demand for energy, natural resources

of all kinds, including water and land, accompanied the countrys tremendous economic

development. Resources have been depleted, triggering a range of secondary impacts in

desertification, flooding and biodiversity loss.5 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 north-

ern 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 regu-

lated industries and household emissions have caused water and air pollution. More than 75

per cent of the water flowing through Chinas 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

Chinas reliance on coal for its energy needs, almost two-thirds of Chinas cities do not

meet the standards set out by the World Health Organization for acceptable levels of total

suspended particulates and sulphur dioxide.8 Desertification affecting one-quarter of

China forces thousands of people to migrate every year and now threatens to envelop

2 Petra Kolonko, Grunes China?, Frankf. Allg. Zeitung (26 November 2005), 10.

3 Frankf. Allg. Zeitung, Chinas Wirtschaft lauft auf Hochtouren (26 January 2005), 11.

4 Haiyan Wang, China: An Introduction to Environmental Law and Policy, 34 EPL (2004), 193.

5 Eric W. Orts, Environmental Law with Chinese Characteristics, 11 Wm. and Mary Bill of Rts J (2003), 548;

Xinzhen Lan, Olympics vs Sandstorms, 45 Beijing R. (2002), 19.

6 The World Bank, Clear Water, Blue Skies: Chinas Environment in the New Century (1997), 23.

7 Orts, above n.5, 551.

8 Vaclav Smil, Chinas Energy and Resource Uses: Continuity and Change, 156 China Quart. (1998), 940.

Beyer, Environmental Law and Policy in China 187

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Beijing. Chinas development has also made the countryafter the United Statesthe

worlds second largest emitter of greenhouse-gas. China is expected to be the worlds

largest greenhouse-gas polluter in 2020.9 Health problems, mass migration and resettlements

have the potential to stir social unrest and are consequences of a failure in effectively integrat-

ing environmental considerations into development efforts. In addition, a floating

population of approximately 100 million migrant workers roams from city to city due

to Chinas geographically uneven economic growth and increase urban environmental

problems resulting from overcrowding.10

III. Chinese environmental legal regime

III.A. The institutional framework

The Preamble of the Constitution defines the Peoples Republic of China as a unitary

multinational state created jointly by the people of all its nationalities. Chinas centralistic

system roots in its history and can be traced back to its first unified dynasty, established in

221 BC.11 Present-day China is divided into provinces, autonomous regions and municipa-

lities,12 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

Peoples Congress (NPC), which has the authority to enact all basic laws ( jiben fa),13

resolutions and decisions, to supervise their implementation and to make amendments to

the Constitution.14 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.15

Chinas chief executive organthe State Councilis 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 guiz-

hang).16 Under the State Council, the Commission for the Protection of Environmental

and Natural Resources (ENRPC) co-ordinates environmental protection work and develops

9 Frankf. Allg. Zeitung, China wird zum groten Treibhausgas-Emittenten der Welt (08.09.2004), 11;

The World Bank, above n.6, 77.

10 Orts, above n.5, 550.

11 Guiguo Wang, The Legal System of China, in: G. Wang and J. Mo (eds), Chinese Law (1999), 39.

12 Beijing, Tianjin, Shanghai and Chongqing.

13 The term is not defined; however, it is generally accepted that it refers to statues that have a fundamental impact

on the whole society.

14 PRC Constitution, Art.62.

15 Ibid., Art.67 (The State Council, the Central Military Commission, the Supreme Peoples Procurate and the

Supreme Peoples Court).

16 Ibid., Art.89; Bryan Bachner and Xi Wang, Environmental Law, in: C. Wang and X. Zhang (eds), Introduction

to Chinese Law (1997), 18.


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environment-related policies and guidelines since 1984.17 The administrative arm of the NPC

is the State Environment Protection Administration (SEPA), which conducts unified super-

vision at the national level and has nationwide control over environment protection through-

out the country.18 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 Agricul-

ture, Energy, Forestry and Water Resources have the power to issue environmental regulations

at national level (guojia biaozhun).19 Local peoples congresses and their respective standing

committees are authorized to adopt local regulations (difang fagui ), provided they are in

accordance with superior legislation and regulations.20 Local administrative rules (difang

xingzheng guizhang) 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) rep-

resent 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.21

III.B. Dispute resolution

China has a national judiciary, headed by a Supreme Peoples Court, which itself is

vested with, in addition to the power to decide concrete cases, extensive interpretative

powers exercised in the abstract (sifa jieshi ).22 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, Chinas system of courts consists of local peoples courts23 and of courts

having exclusive jurisdiction over cases involving disputes over maritime, forest, railway

17 William P. Alford and Benjamin L. Liebmann, Clean Air, Clear Process? The Struggle over Air Pollution Law in

the Peoples Republic of China, 52 Hastings LJ (2001), 709; Mei Hong, Legal Gateways for Environmental

Protection in China, 4 Review of the EC and IEL (1995), 24.

18 SEPA was established in 1998 and superseded NEPA (National Environmental Protection Agency); H. Wang,

above n.4, 200.

19 Feng Lin, Law on Environmental Protection, in: G. Wang and J. Mo (eds), Chinese Law (1999), 561.

20 PRC Constitution, Art.100.

21 Hong, above n.17, 25; G. Wang, above n.11, 49.

22 PRC Constituttion, Chapter III(7). For general exposition, see G. Wang and J. Mo (ed.), Chinese Law (1999);

B. Bachner and X. Wang, above n.16, 16; G. Wang, above n.11, 56.

23 Basic Peoples Courts at county level; Intermediate Peoples Courts at prefecture level; High Peoples Courts at

provincial level.


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and military issues.24 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 grie-

vances 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 behaviour. According to this philosophy, the ultimate goal of social harmony is

not attained by harmonizing subjective rights of persons intending to defend their own inter-

ests. 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.25 This explains the conciliatory approach of dispute settlement, particu-

larly the preference for mediation in both traditional and contemporary China. Civil

disputes are dealt with by Peoples Mediation Committees, an NGO under the leadership

of local peoples governments and local peoples courts. In the context of environmental

issues, peoples mediation (renmin tiaojie) is mostly engaged in the resolution of disputes

over noise pollution between community enterprises or workshops and their neighbouring

residents.26 The participation in mediation is voluntary; however, settlement agreements

are, according to the newly issued provisions on peoples mediation, treated as civil contracts,

implying that the agreement may be neither modified nor repudiated.27

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 injunctionan 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.28 In civil cases, the

typical outcome is a mediated agreement that has binding force.29

Under the system of administrative review (xingzheng fuyi ), administrative activity, non-

performance or sanctions are subject to administrative appeal or judicial review at the

discretion of the party concerned.30 In practice, the majority of administrative disputes

24 G. Wang, above n.11, 54.

25 Bobby Wong, Traditional Chinese Philosophy and Dispute Resolution, 30 Hong Kong LJ (2000), 304.

26 Yuhong Zhao, Environmental Dispute Resolution in China, 16 JEL (2004), 162.

27 The Supreme Peoples Court issued the Provisions on Trying Civil Cases Concerning Peoples Mediation Agree-

ments in September 2002.

28 General Principles of the Civil Law (1986), Art.124, 134.

29 Michael Palmer, Environmental Policy in the Peoples Republic of China: The Face of Domestic Law, 156

China Q (1998), 804; Zhao, above n.26, 170.

30 Administrative Review Regulations (1991), Arts 1218 and 47.


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are settled through mediation by environmental protection bureaus at various levels.31 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

peoples court. The Administrative Procedure Law governs the judicial review of administra-

tive 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.32 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.33 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.

III.C. Legislation review

III.C.i. Historical development

Chinas environmental law evolved slowly and developed over three periods, commencing

with the establishment of the Peoples 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.34 At that time, environmental protection was simply not on the

agenda due to Chairman Maos policy of the Great Leap Forward, aiming to revitalize

the economy, and to his firm belief that nature had to be defeated by humans.35 It was

not before 1973, after severe floods and droughts had taken place, that a decision concerning

environmental protection and improvement was issued following Chinas 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 Chinas

31 Hong, above n.17, 27.

32 Administrative Procedure Law (1989), Art.12.

33 Hong, above n.17, 28.

34 Bryan Bachner, Regulating Pollution in the Peoples Republic of China: An Analysis of the Enforcement of

Environmental Law, 6 Colorado JIELP (1995), 377; Palmer, above n.29, 789.

35 Alford and Shen, above n.1, 129; Bachner, ibid., 377; Hong, above n.17, 22.


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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 Chinas economic growth and with the improvement of peoples standard

of living.36 The most important contribution to this progress came into force in 1978,

when the States responsibility for the protection of the environment was added to the

Constitution.37 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 Peoples Congress and its Standing

Committee after the total distortion of the legal system in the period of the Cultural Revolu-

tion.38 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 atten-

tion that was given to environmental protection. Since the early 1980s, a gamut of environ-

mental 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.39

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.

III.C.ii. National laws and regulations

III.C.ii.a. Framework legislation. The overall framework for Chinas 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.

36 Lin, above n.19, 558; Leister Ross, China: Environmental Protection, Domestic Policy Trends, Patterns of

Participating Regimes and Compliance with International Norms, 156 China Q (1998), 810.

37 PRC Constitution, Art.9 (The State ensures the rational use of natural resources and protects rare animal and

plants. The appropriation or damage of natural resources by any organization or individual by whatever means is

prohibited); ibid., Art.26 (The State protects and improves the living environment and the ecological environ-

ment and prevents and controls pollution and other public hazards).

38 Hong, above n.17, 23; Palmer, above n.29, 793.

39 Alford and Shen, above n.1, 135; Lin, above n.19, 559.


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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.40 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 governments environmental protection bureaus have responsibility for environ-

mental management and supervision under their jurisdiction.41 In order to co-ordinate

environmental management, the Environmental Protection Law also assigns responsibility

to the other competent national administrative and local governments departments.42

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 peoples 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.43 Units and individuals having made significant contributions to the

protection and improvement of the environment are to receive awards.44 Those discharging

pollutants in excess of prescribed standards shall pay discharge excess fees and are obliged

to eliminate the damage.45 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.46

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 worlds most polluted capital.47 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

40 Environmental Protection Law, Art.4.

41 Ibid., Art.7(1) and (2).

42 Ibid., Art.7(3) and (4).

43 Ibid., Arts 9 and 10.

44 Ibid., Art.8.

45 Ibid., Arts 28 and 39(1).


47 Smil, above n.8, 940.


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source of energy that provides about two-thirds of Chinas total energy consumption.48 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

intend 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 moni-

toring the total volume of pollutants entering an airshed.49 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, auto-

nomous 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.50 Furthermore, the establishment of a national emis-

sion 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.51 Also, market-based

methods and incentives, although unspecified, for clean producing techniques and renewable

energy were stipulated.52 Whereas control measures under the old law focused almost exclu-

sively on industrial enterprises and power plants, the revised law includes specific provisions

for automobiles, vessels, domestic heating and cooking stoves. Vehicles have to meet dis-

charge emission standards and pass annual checks.53 The production marketing and

import of leaded gasoline shall be stopped according to time limits set by the State

Council.54 Provincial-level governments, autonomous regions and directly administered

municipalities may, with approval of the State Council, enact stricter vehicle emission stan-

dards.55 Individual coal-heating stoves shall be replaced by central-heating systems, and sand

and dust-control measures adopted by afforestation, urban and rural greening.56 Key cities

48 Elisabeth Economy, Chinas Development and the Environment (2003), 2 (www.fas.harvard.edu/ asiactr/

haq/200301/0301a001.htm); The World Bank, Air, Land and Water: Environmental Priorities for a

New Millennium (2001), 77.

49 Air Pollution Prevention and Control Law, Art.15.

50 Ibid., Art.15(1) and (2).

51 Ibid., Arts 12(1) and 14(1).


53 Ibid., Art.32.

54 Ibid., Art.34(2).

55 Ibid., Art.33(2).



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may designate zones wherein all producing and consuming of high-polluting fuel as coal are

prohibited.57 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.58

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 Chinas sewage effluent

flows directly into waterways without any prior treatment, about 30 per cent of the nations

rivers are polluted, about 75 per cent of water in urban areas is contaminated and nearly

50 per cent of water sources for Chinas major cities do not meet potable water standards.59

As a response to this situation, the major statutethe 1984 Water Pollution Prevention and

Control Lawwas amended in 1996, aiming to protect and improve water resources for the

purpose of ensuring their effective utilization and safeguarding human health.60 Rules for the

implementation of this law have been passed by the State Council in numerous adminis-

trative regulations.61 The law applies to the pollution of water resources of all kinds

except marine water, which is governed by special law.62 The amendments focus primarily

on clarifying the responsibilities of various governmental departments, on introducing stric-

ter non-compliance provisions and on measures for clean technologies. The peoples

governments at various levels have unified supervision and management responsibility over

the prevention and control of water pollution and shall exercise their authority in conjunc-

tion with other concerned administration departments.63 SEPA is authorized to determine

standards for water qualities and, in line with the countrys economic and technological

conditions, discharge standards for water pollutants.64 A control system for fixed total quan-

tities of pollutants can be instituted by the peoples governments at or above the provincial

level if discharge standards are not met.65 In order to avoid trans-regional disputes, the law

now provides for an unified basin or region-wide planning approach.66 The protection of

major rivers as designated by the State lies within the main responsibility of SEPA.67

Together with other competent administrative authorities and the concerned peoples

57 Ibid., Art.25.

58 Ibid., Art.30(1) and (2).

59 Economy, above n.49, 1; Orts, above n.5, 551.

60 Water Pollution Prevention and Control Law, Art.1.

61 Regulation addressing Water Pollution Prevention and Control Technology (1986); Regulation on Discharge

Licences for Pollutions (1988); Regulation on Supervisory and Administrative Measures Concerning Water Pro-

cessing Facilities (1988); Regulation on the Prevention and Control of Water Pollution from Paper Mills

(1988); Regulation on Drinking Water Protection Zones (1989).

62 Water Pollution Prevention and Control Law, Art.2; Marine Pollution Prevention and Control Law 1982.

63 Water Pollution Prevention and Control Law, Art.4.

64 Ibid., Arts 6(1) and 7(1).

65 Ibid., Art.16.

66 Ibid., Art.10(1).

67 Ibid., Art.10(1).


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governments directly under the Central Government, SEPAs 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 devel-

opment plans.68 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.69 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.70 A pollutant discharge fee shall be levied and an additional excess fee for exceed-

ing the limits set by the national or local standards.71 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.72

Solid waste pollution prevention and control law. In response to Chinas 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 Chinas needs.73 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 manage-

ment of industrial, municipal and hazardous waste, aiming to safeguard human health by

means of preventing and controlling solid waste pollution.74 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.75 Within their administrative areas, the local EPBs are

68 Ibid., Art.10(2)(4).

69 First-grade protection zones, ibid., Art.20(1)(4).

70 Ibid., Art.14(1).

71 Ibid., Art.15(1).

72 Ibid., Art.19.

73 Ellen R. Spitalnik, 23 China Bus. Rev. (1996), 36.

74 Solid Waste Pollution Prevention and Control Law, Art.1. While the law applies to waste in liquid and gaseous

form stored in containers, it exempts environmental pollution caused by radioactive solid waste, solid waste to

the marine environment, liquid waste discharge into water and gaseous waste released into the atmosphere, all of

which are regulated by other legislation, Arts 2 and 75.

75 Ibid., Art.10(1).


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responsible.76 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 equipments aiming to prevent and control industrial solid waste

pollution.77 The department responsible for economic integration under the State Council is

authorized to issue a catalogue of outdated production techniques and equipments jointly

with other relevant departments.78 The Solid Waste Pollution Prevention and Control

Law establishes a reporting, registration and licensing system for industrial solid and hazar-

dous 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 auth-

orities and to furnish data of its waste output, flow direction, storage, treatment and other

relevant information to the responsible EPB.79 Each unit is obliged to adopt advanced tech-

niques for the reduction of solid waste and to construct storage or treatment facilities for waste

that cannot be utilized.80 In case of non-compliance, SEPA is authorized to assess pollution

discharge fees.81 It lies within the principal responsibility of SEPA to develop unified criteria

for specifying hazardous waste.82 Reporting and registration obligations are imposed on

hazardous waste generators, transporters and operators of treatment, storage and disposal

facilities.83 Persons engaged in the collection, storage or treatment of hazardous waste

must apply for an operation licence and undergo special training.84 As to municipal solid

waste, all units and individuals are required to dump their household refuse at designated

sites.85 The municipal peoples governments are responsible for building a system of facilities

that collects, removes, stores, transports and treats urban household refuse.86 Appropriate

utilization of municipal waste constitutes a target.87 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 transfers88 and a ban on solid waste that cannot be utilized

as raw material.89

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 Chinas environmental statutes. Its

76 Ibid., Art.10(2).

77 Ibid., Art.26.

78 Ibid., Art.27(1).

79 Ibid., Art.31.


81 Ibid., Art.34(2).

82 Ibid., Art.43.

83 Ibid., Art.45.

84 Ibid., Art.49(1).

85 Ibid., Art.35.

86 Ibid., Art.39.

87 Ibid., Art.27(1).

88 Ibid., Art.23.

89 Ibid., Art.24.


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objective is to protect and improve the living environment and to safeguard human health by the

prevention and control of noise pollution.90 Different categories of noise fall within the scope of

the law, such as noise from industrial pollution, construction, transportation and social living.91

The law sets out general requirements on noise control in urban planning. The local peoples

governments are mandated with evaluating the impact of noise from regional developments

and construction projects on the surrounding environment. They are responsible for systemati-

cally planning and arranging the location of projects so as to prevent or minimize noise pol-

lution.92 Urban planning departments are required to assign reasonable noise prevention

distances and propose planning and design requirements.93 SEPA is authorized to determine

national standards for acoustic environmental quality and, in accordance with the States econ-

omic and technological conditions, national noise emission standards.94 Fees shall be levied for

excess emission.95 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.96 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.97

Also, construction projects that may produce noise pollution have to be indicated to the respon-

sible environmental protection department of the local peoples government at least 15 days

prior to their coming into operation.98 As regards traffic noise, the Noise Pollution Law prohibits

the manufacturing, selling or importing of automobiles that exceed noise standards.99 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 centres to take

effective measures in order to keep noise at the boundary from exceeding the limits fixed by stan-

dards.100 The use of high-pitch loudspeakers for the purpose of attracting customers and within

noise-sensitive areas is prohibited.101 Commercial enterprises located in the neighbourhood 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.102

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.

90 Noise Pollution Prevention and Control Law, Art.1.

91 Ibid., Art.2(1).

92 Ibid., Art.5.

93 Ibid., Art.12.

94 Ibid., Arts 10(1) and 11.

95 Ibid., Art.16.

96 Ibid., Art.19.


98 Ibid., Art.29.

99 Ibid., Art.32.

100 Ibid., Art.43(2).

101 Ibid., Arts 44(1) and 45(1).

102 Ibid., Art.42.


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The leading causes of Chinas biodiversity loss are extensive agriculture, industrialization,

illegal logging and land degradation. About one-third of Chinas farmland has been

exploited from primary forestland and the use of pesticides as well as of chemical fertilizers

has increased significantly. Despite reforestation efforts, Chinas overall amount of forest

cover has decreased continually and grassland ecosystems face serious decline. Approxi-

mately one-third of the countrys deserts are the result of human activity and the trend

of desertification is accelerating, especially in Chinas arid and semi-arid north and north-

west.103 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 Chinas emerging market economy. National and local desertification

prevention and treatment plans shall be drawn up and a national monitoring network

be instituted.104 Farmers and herders located in protected desertified areas shall be resettled

and new cultivations on desert margins should not be permitted.105 More than just stating

the duty to prevent desertification, the law also obliges individuals and units using land to

undertake remediation efforts.106 Technical support and subsidies, although unspecified,

shall be provided.107 The most significant innovative provision is likely to be the author-

ization of local governments to grand land-use rights for up to 70 years to desertified areas

if the landholder assents to restore the land.108 Since land-use contracts were usually

limited to considerably shorter periods109 at 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 conser-

vation 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.110 However,

a number of regulations have been adopted, providing procedures for the establishment

103 Lan, above n.5, 19.

104 Desertification Prevention and Control Law, Arts 11 and 14.


106 Ibid., Art.6.


108 Ibid., Art.34.

109 Priscilla M. Leung, Evolution of Land Prescription in China, in: C. Wang and X. Zhang (eds), above n.16, 548.

110 The deadly virus is thought to have come from wild civet cats in South Chinas Guangdong Province.


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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.111 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 quota112 and institutionalizes a permit system for tree

cutting.113 Both laws contain provisions on the sustainable utilization of resources, on pro-

tection policies promoting the restoring of vegetation and afforestation, on ownership and

specific use rights, as well as on prohibitions of certain harmful actions.114

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 compre-

hensive 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 environ-

mental 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 punishmentsimprisonment for up to 10 yearsmay 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.

III.D. Environmental policies

III.D.i. Prevention first policy

III.D.i.a. 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

111 Regulation on Nature Reserves (1994); Provisions on the Management of Nature Reserves for Forests and Wild

Animals (1985); Provisions on the Management Nature Resources for Aquatic Animals and Plants (1997);

Provisions on Management of Marine Nature Reserves (1995).

112 Forest Law, Art.8.


114 Forest Law, Arts 3, 11 and 38; Grassland Law, Arts 4, 9, 10 and 11.


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improvements and rational utilization of resources.115 Provisions issued by the State

Council on this matter were later implemented in subsequent legislation, particularly in

the Environmental Protection Law116 and in specific pollution prevention laws.117

III.D.i.b. Implementation.

Environmental impact assessments. One effective instrument for pollution prevention is the

use of environmental impact assessments (EIAs) for the building of new and expanding pro-

jects 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 con-

servation 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.118 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 programmes and plans on land use and development projects for natural resources

are subject to environmental impact assessments. EIAs should also be conducted on devel-

opment planning concerning energy, water management, transportation tourism, agriculture

and forestry.119 Principally, such assessments include an analysis and prediction of the pro-

jects 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 poten-

tial environmental impact, assessments of any construction project, expansion or modifi-

cation 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.120 The Management List issued by SEPA sup-

plements 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

115 H. Wang, above n.4, 195.

116 Environmental Protection Law, Arts 16, 24, 25, 27 and 30.

117 Air Pollution Prevention Law, Art.15; Water Pollution Prevention Law, Art.22.

118 Yan Wang and Richard Morgan, 23 EIAR (2003), 550.

119 Environmental Impact Assessment Law, Arts 7 and 8.

120 Ibid., Art.16.


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important component of the Chinese environmental protection policy.121 Basically, this

principle imposes the integration and installation of pollution prevention and control facili-

ties 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.122 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 pro-

cesses, products and services in order to increase their eco-efficiency and to reduce their risks

to human health and the environment.123 In respect to the production process, cleaner pro-

duction 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 dispo-

sal 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 pro-

duction. 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.124

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 peoples governments, autonomous

regions and municipalities.125

Land Planning Rules. Land Planning Rules are used in China to promote sustainable social

and economical developments by co-ordinating environmental issues with the social and

121 Y. Wang and R. Morgan, above n.118, 546.

122 Environmental Protection Law, Art.26(1).

123 H. Wang, above n.4, 196.

124 Cleaner Production Promotion Law, Arts 3 and 19.

125 Ibid., Art.11.


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economical 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 Chinas population

resides in rural and often remote villages or towns, village and town planning plays a key role

in achieving sustainable social and economical developments.126 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 histori-

cal 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.127 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.128

III.D.ii. Environmental liability policy

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 polluters liability for the elimination and control of the pollution.129 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.130

III.D.ii.b. Implementation. 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.131 The

polluting entity has to register with the competent environmental authority and to report

126 According to the fifth national population consensus in November 2000, rural residents accounted for

63.91 per cent and urban residents for 36.09 per cent (www.cpirc.org.cn/en/e5cendata1.htm).

127 City Planning Law, Art.14.

128 Ibid., Arts 23, 31 and 32.


130 Air Pollution Prevention and Control Law, Arts 12(1) and 14(1); Water Pollution Prevention and Control Law,

Art.15(1).

131 Environmental Protection Law, Art.28(2), Water Pollution Prevention and Control Law, Art.15(1).


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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.132 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 diffi-

culties 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 discre-

tion to decide on the amount of the fine, whereas the decision to shut down lies with the

local government.

III.D.iii. Environmental management policy

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.

III.D.iii.b. Implementation. In comparison to other legal systems that refer to a comprehen-

sive licence and permit system as one of the most important preventive measures of manage-

ment and supervision, Chinas permit system is still in its developing stage. Although single

laws state such requirements for certain activitiese.g. the City Planning Law for construc-

tion projects133, the Forest Law for the cutting of trees134 or the Marine Environmental

Protection Law for the discharge of waste into the sea135neither Chinas 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 pollutants 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.136 Mandatory measures exist to enforce compliance. Accord-

ing to the Rule on Environmental Administration Sanctions,137 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

132 Environmental Protection Law, Art.35(2) and (3).

133 City Planning Law, Art.31.


135 Marine Pollution Prevention and Control Law, Art.38.


137 Issued by NEPA in 1992.


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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 disman-

tling or shutdown of illegal constructions. In severe cases, the licensee faces a fine and a con-

fiscation 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 environ-

mental protection targets have been introduced. Under this system, heads of local govern-

ments 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.

IV. Evaluation of the legal environmental framework

IV.A. Statutory deficiencies

Considering Chinas short environmental law history, quite a comprehensive set of legis-

lation 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.138 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 (bixu) 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 tech-

niques 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.139 This clearly demonstrates the difficulty of evaluating and

138 Alford and Shen, above n.1, 135.

139 Air Pollution Prevention and Control Law, Art.10.


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determining the potential of Chinas environmental statutes to direct specific behaviour. A

significant factor contributing to this situation is the lack of definitions in Chinese environ-

mental laws. Moreover, since most environmental-related disputes are brought to the

peoples 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.140 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 environment141 and states that local governments

are responsible for the quality of the environment and shall take measures to improve the

environment.142 Similarly, the Environmental Protection law prohibits units from transfer-

ring facilities that cause severe pollution143 and obliges units to adopt effective measures

to prevent and control pollution that harms the environment.144 Generally, these statutory

provisions need to be supplemented by regulations or standards. Although Chinas 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 actorsindividuals and enterprisesremaining, 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 Chinas contemporary legal system. In fact,

very often, it is not clear whether and how key provisions apply to non-state enterprises.145

Furthermore, core principles of Chinese environmental laws as state economic plans aiming

to direct behaviour are of diminishing relevance nowadays, since state planning has consider-

ably lost its significance and former force. These plans are predominantly measures of

a planned economy which, in its initial sense, does not exist any more.

Ultimately, Chinas environmental legal regime is far from complete. Statutory

deficiencies arise, since Chinas environmental regulatory system still fails to capture import-

ant 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

140 Julia E. Klee and Felicity C. Thomas, 24 China Bus. R (1997), 43; Palmer, above n.29, 800.


142 Ibid., Art.16.

143 Ibid., Art.34.

144 Ibid., Art.24.

145 Christopher B. Prufer and Yang Chen, 22 Ztschrift f. UmweltP. and UmweltR (1999), 130; Leister Ross, The

Next Wave of Environmental Legislation, 21 China Bus. R (1994), 30.


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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,

Chinas licence and permit system is still in its infant stage. Merely single laws require prior

permission for certain activities; neither Chinas Environmental Protection Law nor the

Water and Air Pollution Law contains such provisions. Moreover, Chinas environmental

laws generally give only little guidance on the specific demarcation of responsibilities

amongst government bodies and few detail on the implementation process.

IV.B. Enforcement deficiencies

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.146 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 Peoples 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 peoples 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 environ-

mental regulations to be incompatible with economic growth makes it difficult for environ-

mental 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.147 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 ade-

quate supervisory mechanism exists.148 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

146 Jonathan Schwartz, The impact of State Capacity on Enforcement of Environmental Policies: The Case of

China, 12 JEDev (2003), 69; Prufer and Chen, ibid., 130.

147 Petra Kolonko, Unbotmaige Provinz, Frankf. Allg. Zeitung (2 February 2005), 6; Palmer, above n.29, 806.

148 Alford and Shen, above n.1, 137.


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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 peoples 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 Chinas economic and

technological development. The organizational weakness of the environmental protection

organs is due to their lack of staff, financial resources and technical expertise.149 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.

IV.C. Public participation

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 protec-

tion 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.150 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,

Chinas 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 1994.151 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

149 Schwartz, above n.146, 69.


151 Schwartz, above n.146, 71.


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jmk002 185..211 - 185.full.pdf

Documents

chinas environmental

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