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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, economic 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
Dr. Stefanie Beyer, LL.M, works as lawyer in Cologne, Germany (email: StefanieBeyer@hotmail.com). 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.
....................................................................................................................................................................
Chinese Journal of International Law (2006), Vol. 5, No. 1, 185 211
doi:10.1093/chinesejil/jmk002
Abstract
186
environmental protection regime became evident when it took the Chinese government 10
days to publicly acknowledge the existence of an 80-kilometre-long slick of highly toxic
benzene that had been caused by an explosion of an upriver chemical plant which had contaminated water supplies for one of Chinas biggest citiesHarbin in north-eastern Heilangjiang provinceand threatened neighbouring Russia.2
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.
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 problems. 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 northern China suffers from regular drought whereas floods threaten the south. Water scarcity has
led to the depletion of underground aquifers, to the destruction of fertile soil and has caused
an influx of eco-refugees who have fled areas ruined by drought and dust storms. Poorly regulated industries and household emissions have caused water and air pollution. More than 75
per cent of the water flowing through 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
188
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 integrating 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
environment-related policies and guidelines since 1984.17 The administrative arm of the NPC
is the State Environment Protection Administration (SEPA), which conducts unified supervision at the national level and has nationwide control over environment protection throughout the country.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 Agriculture, 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) represent the decentralized power structure. They are funded by the local governments of which
they are part and are responsible for environmental protection under their jurisdiction,
including drafting local laws, issuing administrative regulations, supervising and organizing
work on environmental monitoring and control, and for the education and training in
environmental issues. EPBs constitute the basic units for compliance with environmental
laws and regulations, and are assisted by research institutes and monitoring centres.21
190
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 grievances are not transformed into disputes, but rather endured. Due to the ancient Confucian
concept of social harmony, law in general is not seen as an adequate mechanism to shape
human 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 interests. Moreover, individual rights are considered to disturb the social order. Consequently, the
focus lies on preventing disputes from happening rather than on finding out whose rights
have been infringed.25 This explains the conciliatory approach of dispute settlement, particularly the preference for mediation in both traditional and contemporary China. Civil
disputes are dealt with by 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, nonperformance 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
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 administrative decisions. However, it should be noted that the review of certain decisions is excluded.
This applies to State acts affecting the national defence, foreign affairs and to those decisions
announced with general binding force.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.
192
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 Revolution.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 attention that was given to environmental protection. Since the early 1980s, a gamut of environmental legislation has been issued, starting with the Marine Environmental Protection Law
in 1982, the Water Pollution Prevention and Control Law and the Forest Law in 1984,
followed by the Grassland Law in 1985 and the Air Pollution Prevention and Control
Law in 1987. In the 1990s, China undertook new efforts to strengthen its environmental
laws and to bring them into closer compliance with the principle of sustainable development
introduced after the 1992 United Nations Conference on Environment and Development.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.
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 environmental 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
194
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).
52 Ibid., Arts 8 and 9.
53 Ibid., Art.32.
54 Ibid., Art.34(2).
55 Ibid., Art.33(2).
56 Ibid., Arts 10 and 28.
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 monitoring 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, autonomous regions and directly administered municipalities, with approval of the State Council,
to establish Total Emission Control (TEC) Zones, where all polluters are required to
comply with the prescribed standards.50 Furthermore, the establishment of a national emission fee system on the basis of categories and quantities of atmospheric pollutants and of a
reporting system covering all relevant data marks a major departure from the former law that
had held polluters only liable when emission levels were exceeded.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 exclusively on industrial enterprises and power plants, the revised law includes specific provisions
for automobiles, vessels, domestic heating and cooking stoves. Vehicles have to meet discharge emission standards and pass annual checks.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 standards.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
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
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 Processing 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).
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 administrative 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 stricter 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 conjunction 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 quantities 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
196
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 management 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).
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 development 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 exceeding 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
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.
80 Ibid., Arts 30 and 32.
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.
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 hazardous waste and goes far beyond the mere regulation of waste disposal. The statute requires
industrial units producing solid waste to register with local environment protection authorities and to furnish data of its waste output, flow direction, storage, treatment and other
relevant information to the responsible EPB.79 Each unit is obliged to adopt advanced techniques for the reduction of solid waste and to construct storage or treatment facilities for waste
that cannot be utilized.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
198
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.
97 Ibid., Arts 24 and 25.
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.
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 systematically planning and arranging the location of projects so as to prevent or minimize noise pollution.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 economic 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 Noisecreating 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 responsible 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 standards.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
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. Approximately 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 northwest.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 authorization of local governments to grand land-use rights for up to 70 years to desertified areas
if the landholder assents to restore the land.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 conservation of nature reserves has been promulgated until now. The Wildlife Protection Law
enacted in 1988 neither contains stipulations on the management of animals habitats
and their suitability for establishing nature reserves, nor does it provide ownership rules
that adapt to current realities. Especially, the outbreak of SARS in 2003 indicated the
need for major amendments, in particular for a ban on eating wild animals.110 However,
a number of regulations have been adopted, providing procedures for the establishment
200
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.
113 Forest Law, Art.32.
114 Forest Law, Arts 3, 11 and 38; Grassland Law, Arts 4, 9, 10 and 11.
III.C.ii.d. Criminal law. Prior to the promulgation of the revised Criminal Law in 1997,
the provisions on criminal liability for environmental pollution were scattered throughout
various environmental statutes. As amended, the Criminal Code provides a more comprehensive regime for offences to environmental resources. Chapter 6 of Chapter VI of the
Criminal Law deals with crimes undermining the protection of environmental resources
and defines the crimes and sanctions imposed on persons being responsible for environmental damage. The law includes provisions that range from the unauthorized import of
solid waste, the release of radioactive and toxic substances into the environment, the violation
of regulations governing aquatic resources, land administration and forestry, including the
destruction of rare trees and illegal logging, to the unauthorized hunting of endangered
wild animals. The most severe 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.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 projects with potential adverse effects on the environment. China introduced the concept of
environmental impact assessments in the 1970s in the form of a national policy which
was later adopted by the Environmental Protection Law and the specific protection and conservation laws. However, as these provisions set out only general requirements on this matter
and particularly lacked implementation measures, a number of administrative regulations
and guidelines had been issued over time.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 development planning concerning energy, water management, transportation tourism, agriculture
and forestry.119 Principally, such assessments include an analysis and prediction of the projects effects on the environment as well as measures and strategies aiming to mitigate and
prevent negative impacts supported by technical expertise. Based on the extent of the potential environmental impact, assessments of any construction project, expansion or modification are divided into three categories. Detailed environmental impact reports are
required for construction projects that are likely to cause a range of significant adverse
environmental impacts. Projects that may have a limited number of impacts are subject to
an analysis, whereas those just having a negligible impact require no assessment and
simply need to complete a registration form.120 The Management List issued by SEPA supplements these regulations by providing criteria for the predetermination of possible adverse
environmental impacts according to industries, products and activities.
202
Cleaner production. The concept of cleaner production has been adopted in order to promote
the sustainable use of natural resources by continuously applying preventive strategies to processes, products and services in order to increase their eco-efficiency and to reduce their risks
to human health and the environment.123 In respect to the production process, cleaner production refers to the efficient use of energy and resources, to the elimination and decrease of
hazardous raw materials as well as to the amount and toxicity of emissions and waste. With
respect to products, cleaner production focuses on the reduction of adverse environmental
impacts throughout their entire lifecycle, from raw material extraction to the ultimate disposal of the product. Various laws include provisions on cleaner production measures. In 2002,
the Cleaner Production Promotion Law was enacted to provide a coherent framework aiming
to encourage cleaner technical development, scientific research and international co-operation
to develop cleaner production mechanisms. The Law obliges any unit and individual being
engaged in the production or provision of services to implement systems for cleaner production. Enterprises in particular are obliged to make use of raw materials which are recycled
and non-hazardous and must adopt adequate prevention and control technologies.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.
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 historical situation. The regulation aims to protect and improve the economical outline conditions
by means of preventing and controlling pollution, improving the appearance of villages
and towns and their hygiene infrastructure. For instance, the development of greenery and
afforestation is encouraged.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
204
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 difficulties involved in controlling the pollution. The introduction of pollution prevention
and control facilities can be enforced. Failure to conform to the established deadline
results in fines, serious violations or closure. The environmental department has the discretion to decide on the amount of the fine, whereas the decision to shut down lies with the
local government.
suspension or termination of licences and permits if prescribed standards are not met and
include the seizure and transfer of objects, the withdrawal of sites and the mandatory dismantling or shutdown of illegal constructions. In severe cases, the licensee faces a fine and a confiscation of his property. Also, an administrative punishment system has been established
providing measures to respond to violations of environmental laws constituting no criminal
offence. Such measures are detention and re-education, and confiscations of the illegal
income and of the instruments used. Ultimately, economic incentives for achieving environmental protection targets have been introduced. Under this system, heads of local governments and enterprises are held responsible for attaining certain targets. Contracts are signed
that list the environmental protection objectives and indicators for failure and success.
Achievements of targets are rewarded with monetary grants, bonuses and awards, and
generally result in profitable publicity of the well performing bureau or enterprise. Failures
can cause fines and often lead to personal criticism affecting personal careers.
206
140 Julia E. Klee and Felicity C. Thomas, 24 China Bus. R (1997), 43; Palmer, above n.29, 800.
141 Environmental Protection Law, Art.6.
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.
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.
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.
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 environmental regulations to be incompatible with economic growth makes it difficult for environmental protection bureaus to enforce their policy. Although the State Environmental
Protection Agency has formal authority over lower-level agencies, this national agency
does not have much leverage in ensuring that national regulations and standards are enforced
at the local level. It is common practice that environmental issues are treated more as a matter
of policy rather than law and personal relations are often decisive.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 adequate 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
208
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.
and may not operate outside the place of its registration.152 Neither a transparent registration
system nor a framework for foreign NGOs exists. Nonetheless, China is gradually perceiving
NGOs as an additional factor influencing the public and admits them to play a more active
role. The number of NGOs is growing and mass media have increasingly addressed environmentally related issues. Local EPBs prepare television and radio information programmes
that air daily and conduct activities ranging from the development of curricula for education
from kindergarten through to university, holding seminars for factory managers to projects
such as tree planting or garbage collection.153 With the increasing income and living standards, as well as with the emergence of middle-class society, public awareness of environmental issues has already increased and this public impact will very likely continue to grow.
A booming economic expansion has transformed the Peoples Republic of China over the
past two decades. Chinas enormous economic growth has elevated China into the ranks
of the worlds economic and political powers and sets the country on course to become a
global superpower. This advance has undoubtedly improved peoples living standards,
although significant regional differences have arisen and social disparities are growing.
Chinas remarkable development has had its costs, particularly to the natural environment.
The country does not only face environmental problems, such as soil erosion, deforestation
and desertification typically associated with a developing and overpopulated agricultural
society, but also those of an industrialized country having to deal with a welter of pollution
and resource exhaustion. Surprisingly, China has quite a comprehensive set of environmental
legislation. Considering the countrys short environmental law history, respectable achievements have been made in a short period of time. Nevertheless, Chinas law regime has not
been able to control the further deterioration of the environment. Actually, environmental
laws suffer from the same infirmities and enforcement problems that characterize contemporary Chinese law in general. One result of legislation in the last years is a proliferation of overlapping and contradictory laws and regulations administered by agencies with varying
commitments to and experiences with formal legal processes. This complicates law enforcement, particularly when environmental issues are concerned, that are often in tension with
Chinas economic development. The vague statutory language of laws that still has significant
imprints from socialist ideas hardly adapts to current realities. Statutory deficiencies combined with local protectionism, personnel and technical shortcomings, week courts and traditional restricted public participation capabilities are major obstacles to the implementation
process. Chinas environmental protection regime is a system that rather seeks to secure compliance by punishment as opposed to preventive incentives and in which party and local
interests all too often interfere into the functioning of the regulatory regime. However,
the inherent problem of Chinas environmental legal system is the wide discretion local
agencies have in addressing environmental issues. In fact, local governments have gained
152 Orts, above n.5, 562.
153 Schwartz, above n.146, 74.
IV.D. Conclusion
210
considerable administrative and fiscal autonomy from the central government. While achieving more autonomy, local governments have to cope more and more with hard budgetary
restrictions. They are responsible for generating most of their own revenue and balancing
their own budget. Such a system generates considerable pressure at the local level to
compete in attracting and promoting economy-building companies. Local governments
very often sponsor or own industries themselves and consider environmental regulations to
be incompatible with economic growth. Since environmental protection bureaus obtain
their funding from sub-national governments of which they are part, the enforcement of
environmental policies faces significant financial constraints and is frequently undermined
by economic pressure. Although the State Environmental Protection Agency has formal
authority over lower-level agencies, this national agency does not have much leverage in
ensuring that national regulations and standards are strictly enforced at the local level.
Besides, numerous national pollution standards are so lenient that they hardly have an
effect. Unless local governments are motivated to enforce environmental policies, economic
growth will, due to the existing competitive pressure, be given priority at the expense of
environmental protection. In general, a decentralized administrative system is not antithetical
to effective environmental management. On the contrary, it enables local governments to
introduce environmental policies according to the particular circumstances. However,
unless a high level of environmental consciousness is developed among local residents and
effective means provided for pressuring local governments to integrate environmental policies
into their development efforts, little more will be achieved than just enlarging Chinas existing and already proliferating body of statues. Whatever measures are pursued, they need to be
adapted to the specific challenges deriving from Chinas contemporary political, economic
and social context. The key factorthe interest of local governments to focus almost exclusively on continued economic growthneeds to be addressed. This calls for regional
approaches that provide financial support to poorer regions in order to cut across the existing
sub-national political boundaries. Local governments should be evaluated not only on how
their economy performs, but also on how successfully they deal with environmental challenges. Further measures will include clarifying institutional responsibilities, increasing the
precision of existing laws, adjusting fees and fines closer to the actual damage caused by
the harmful activity, strengthening the personnel and technical capacities of Chinas
grossly understaffed and under-funded environmental administration departments, as well
as improving environmental participation and education. Particularly, NGOs and the international community play a crucial role in terms of policy advice and in providing expertise
and financial resources.
Realizing the dynamic economic development and the evolving political system, Chinas
environmental future is difficult to determine. To the extend that Chinas leaders perceive
the interconnection between economic growth and environment and see stabile economic
advance as depending on sustainable development, the more likely they will integrate environmental protection policies into the nations long-term economic efforts. Optimally, Chinas
accelerated growth will involve greater investment in national and local environmental protection. This greater wealth in tandem with an increasing level of education and public
participation could contribute to the formation of a green movement that promotes resources
saving and recycling measures. In addition, Chinas growing integration into the international
community, in particular through the membership in the WTO and environmental aid from
global organizations, could support the countrys sustainable development. Environmental
progressive cities such as Beijing, triggered by the Olympics in 2008, could become models
for other parts of China. Important political decisions towards more certain individual
rights that are indispensable for effective environmental protection have recently been made
by incorporating the guarantee of private property into the constitution.154 However, there
also is the possibility that these reforms initiated by the economic and social development
will not be reflected in improved environmental conditions throughout China. The heterogeneous management of local environmental protection policies could rigidify and exacerbate
the common practice that only the wealthiest cities with environmentally inclined mayors
invest in the environment. Adding to this picture the continued population growth, an
increasing number of motor vehicles and industrial and household waste, a further deterioration in Chinas environmental situation seems very likely. Without the necessary
reinforcement from Beijing and a growing private influence from NGOs that facilitate free
public discussion, this scenario does pose a realistic presumption. Whatever path China
will follow, its environmental policy will without doubt have a significant impact on
global scale. Capacity building in state and non-state sectors involved in environmental
protection and economic development will definitely be indispensable. Nevertheless, regardless of what efforts are made, unless adequate regulatory measures exist and are enforced,
environmental law in China will continue to play an uncertain and ambiguous role.