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 Long-awaited amendments to China's 1989 Environmental Protection
Law are expected to be finalised later this year, giving the
Ministry of Environmental Protection (MEP) greater authority to take
on polluters.
While some details of the fourth draft are still under discussion,
it has been agreed that the principle of prioritising the
environment above the economy will be enshrined in law, according to
scholars who have been involved in the process. The fourth draft is
due to be completed within weeks.
"(Upholding) environmental protection as the fundamental principle
is a huge change, and emphasizes that the environment is a
priority," said Cao Mingde, a law professor at the China University
of Political Science and Law, who was involved in the drafting
process.
The first change to the legislation in 25 years will give legal
backing to Beijing's newly declared war on pollution and formalize a
pledge made last year to abandon a decades-old growth-at-all-costs
economic model that has spoiled much of China's water, skies and
soil.
Cao cautioned that some of the details of the measures could be
removed as a result of bureaucratic horsetrading. The MEP has called
for the law to spell out how new powers can be implemented in
practice, but the National Development and Reform Commission (NDRC),
the country's top economic planning agency, prefers broader, more
flexible principles.
"There is a usual practice when everyone is unable to come to a
complete agreement — we first put an idea into the law and then draw
up detailed administrative rules later," Cao said.
Local authorities' dependence on the taxes and employment provided
by polluting industries is reflected by the priorities set out in
China's growth-focused legal code, said Wang Canfa, an environment
law professor who runs the Center for Pollution Victims in China and
also took part in the drafting stage.
The environment ministry did not respond to detailed questions on
its role in the drafting process and the specific content of the new
amendments, but said the legislation was currently in the hands of
the Legal Work Committee of the National People's Congress (NPC),
China's legislature.
The protracted legal process usually kicks off with a number of
drafts from academic institutions, which are then examined by
ministries, local governments and industry groups. A new draft then
goes to the legal affairs office of the State Council, China's
cabinet, before being delivered to the NPC and opened up to members
of the public to have their say.
NEW POWERS
In the absence of legally enshrined powers, the environment ministry
has often made do with one-off national inspection campaigns to name
and shame offenders, as well as ad hoc arrangements with local
courts and police authorities to make sure punishments are imposed
and repeat offenders shut down. It has also stretched existing laws
to its advantage.
Last year, it began to use its powers of approval over environmental
impact assessments, which are mandatory for all new industrial
projects, to force powerful industrial firms such as Sinopec and the
China National Petroleum Corporation to cut emissions at some of
their plants, threatening to veto all new approvals until the firms
met their targets.
The new law would give the ministry the legal authority to take
stronger punitive action.
"The environment ministry could only impose fines and management
deadlines," Cao said. "Now we can close and confiscate them. It's an
important right."
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It will also set up a more comprehensive range of punishments,
putting an end to a maximum fine system that allowed enterprises to
continue polluting once they had paid a one-off fee normally much
lower than the cost of compliance. Cao said the final draft was
also likely to impose an "ecological red line" that will declare
certain protected regions off-limits to polluting industry, though
detailed definitions are likely to come later.
The legislation also proposes to formalize a system by which local
cadres are assessed according to their record on pollution issues,
including meeting emissions targets.
Experts have welcomed commitments to improve transparency and compel
polluters to provide comprehensive and real-time emissions data.
Criminal penalties will also be imposed on those found guilty of
trying to evade pollution monitoring systems.
"The provisions on transparency are probably the most positive step
forward. These include the requirement that key polluters disclose
real-time pollution data," said Alex Wang, expert in Chinese
environmental law at UCLA. Wang said he had not seen the later,
non-public drafts of the legislation.
FIERCELY CONTESTED
For nearly two years, scholars, ministries, local governments,
companies and environment ministry officials have been debating the
changes to the environmental protection law.
One of the most fiercely contested parts of the new draft was a
clause designed to prevent most environmental non-governmental
organizations (NGOs) from filing lawsuits against polluters.
The first draft said lawsuits could only be filed via the
government-affiliated All-China Environmental Federation, though
subsequent changes allowed other government-registered organizations
that have been operating for at least five years to launch legal
action.
Polluting industries have lobbied government officials not to relax
the restrictions on the rights of NGOs to file suits, said Cao, who
has attended numerous meetings with government officials on the new
legislation.
UCLA's Wang said the ultimate success of China's war on pollution
would be determined not by symbolic new legislation but by specific
targets and guidelines that are now being imposed on local
governments.
"Many people point to China's laws as a sign of the government's
concern about the environment," he said. "But changes in
bureaucratic targets are a more direct indication of changing
priorities and can tell us whether Beijing means business."
(Additional reporting by Beijing Newsroom;
editing by Alex
Richardson)
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