December 08th, 2011 | Caixin Environmental Protection, Endangered
The 22-year road to amending the law reflects the interest disputes between the Ministry of Environmental Protection, other ministries and local governments
Sometimes a toxic spill will produce visibly shocking results. Rivers turn colors, wildlife die off. In other instances, the short-term effects are easily concealed, in food contaminated with heavy metals. However, what is clear with the regular onslaught of environmental accidents is that the overwhelming need for better environmental laws is urgent.
China’s Environmental Protection Law was first proposed in 1979 and formally enacted in 1989. In over two decades, not a single revision has been made to the law, despite staggering environmental degradation throughout country. Enforceability entails fair and explicit penalties for violations, but scholars say these measures won’t be introduced to the law anytime soon.
In early 2011, environmental scholars did not hold high hopes of a revision. But at the time, the National People’s Congress Standing Committee announced that an amendment to the Environmental Protection Law would be included in the annual legislative program for 2011.
In fact, when the NPC set up the Environment and Resources Protection Committee in 1993, plans were in place to revise the 1989 law.
But in the interim, the NPC enacted nearly 30 laws regarding the environment, resources, energy, clean production, and the circular economy, led by land, water, marine, forestry and other ministries and commissions. The content of these laws almost replaced the environmental protection law. Professor Wang Jin, director of the Peking University Resources, Energy and Environmental Law Research Center, has said for years that the Environmental Protection Law exists in name only.
Those in the industry say that the amendment to the law is mainly a result of the expansion of the Ministry of Environmental Protection’s authority in recent years. In 2008, the State Environmental Protection Administration (SEPA) was upgraded to the Ministry of Environmental Protection (MEP), and accorded with powers equal to water conservancy, agriculture, land and other ministries.
In January, the NPC’s Environmental Resources Committee formally commissioned the MEP to draft a ministerial recommendation draft of the amendment, the focus of which was to make amendment proposals for eight areas, including environmental assessment and the responsibility of the government for environmental quality, as well as relevant provisions for legal responsibility. The committee also requested “limited goals and a focus on key points,” meaning that the direction of the revisions had already been set. Also, because the eight areas had already been delineated, the changes could only be “limited.”
Many scholars say that the reason for the limited amendment is that there is fierce competition for interests between the dozen-plus relevant central ministries, commissions and local governments.
In February 2011, the MEP drafted the first draft of the proposed changes. On September 7, the proposed amendment draft was formally submitted to the NPC Environment and Resources Protection Committee. Afterwards, the committee submitted the revised draft amendment to the NPC Standing Committee. It is said that at the deadline for submitting the draft, the draft to be submitted for approval was still constantly being revised.
The process and the changes to the rules in the amendment show the competition for power and interests between the various government departments.
The first draft from February, included the additional clause, “The national government should assess the environmental performance of local governments,” and MEP “in conjunction with State Council oversight offices, will meet and leaders of the governments of the relevant provinces, autonomous regions, and municipalities and then circulate notices nationwide for those underperformance.” Article 23 also provided that each level of government should report to the People’s Congress at the same level on the progress of meeting environmental targets and accept supervision from the People’s Congress.
In the draft sent for approval, the provision for meeting with local government leaders had disappeared. Informed scholars told Caixin that there have been numerous revisions to the current Environmental and Resources Committee draft, many of which regarding government liability have deleted.
Wang Xi, director of the Shanghai Jiaotong University Environmental and Resources Law Institute, says the NPC Environmental Resources Committee certainly hopes that the scale of the amendment can be larger. But in accordance with China’s legislative practice, copies of drafts are sent to the relevant State Council departments, local governments, and local People’s Congresses for comment. This will inevitably encounter the opposition of local governments and relevant departments.
In addition, Chinese environmental officials for the first time proposed putting environmental assessments of policy into the law. In its earliest draft and its submitted draft, MEP added the environmental assessment of policy. “Local people’s governments at the county level and above and relevant departments should carry out environmental assessment feasibility studies for major economic and technology policy drafts of which they have organized the formulation, which have a significant effect on the environment.”
Environmental assessment of policy means that for laws, regulations and normative documents that could have a significant impact on the environment, the relevant work units should carry out an environmental assessment during drafting and form a manual for the environmental assessment of the policy. Environmental assessment units would give written comments on the manual. Environmental experts say that for China, the world’s factory, environmental assessment of policy has a lot of practical significance. China is a major producer of lead-acid batteries, solar panels, clothing, electronic devices and other products, the production of which cause great environmental disasters. If China assessed the environmental impact of policies, many incidents could be avoided in advance.
Sure enough, in the process of soliciting opinions from local governments and relevant ministries and commissions, the environmental assessment of policy has been quietly removed.
Removed alongside the environmental assessment of policy was a provision for “penalties calculated daily.” In fact, penalties for violations in the existing law are too low, basically only requiring “rectification within a set time.” In order to change this situation, the MEP’s two drafts both had “penalties calculated daily” inserted, which allowed for fines of “no less than 1,000 yuan and no more than 10,000 yuan per day” to be imposed for each day a company failed to rectify a violation outside of the set time limit.
In addition, public participation is an important aspect of protecting and handling the environment.
Article VI of the current Environmental Protection Law stipulates that all units and individuals have an obligation to protect the environment and the right to report polluters. In the February draft, the MEP included the words, “the state encourages the public to participate in environmental protection.” But in the draft submitted in September, Article VI had not been amended, and the words “encourages participation” had been removed. Fortunately, language stating that the government and relevant companies should publish environmental information currently remains in the draft.
Some scholars say that with various parties blocking the legislative process, hope for breakthroughs in many areas of the amendment is unrealistic. At best, there will be limited progress.
“For an environmental protection law, scholars will of course propose an ideal model. But after balancing all the sides, it will change. What ultimately comes out is the product of a compromise between the various sides. This sort of compromise can reflect the extent of our country’s overall environmental awareness,” one scholar said.
By staff reporter Xu Chao and Ren Zhongyuan