State Policy or Individual Right: The Recent Development of Environmental Protection in China
In late June 2018, the Chinese State Council released the three-year action plan to ‘win the battle for blue skies‘, which, among other recent legislative and judicial development in environmental protection, is an illustration of the Constitutional Amendment on 11 March 2018, which includes ‘to direct and administer […] environmental development’ as one of the functions and powers of the State Council in Article 89, and adds ‘ecological civilisation’ into the preamble, shedding new light on environmental protection in China.
Progress in environmental protection is reflected in both policy-making and legislation. At the fourth meeting of the 13th National People’s Congress Standing Committee in July 2018, a draft resolution on ecological environment protection was passed, aiming to establish the strictest legal system for environmental protection, promote the implementation of relevant legislation, and enhance public participation. Around the same time, a working group, led by the vice-premier Zheng Han, was established to design and implement measures to prevent and control the air pollution in Beijing and adjacent areas. These actions suggest that the government has decided to take up a lead role in environmental protection through policy-making and implementation.
Besides policy-making, there has been ongoing legislative progress in environmental protection in the recent years. The Environmental Protection Law, amended in 2014, has included “protect the public health” as a general principle (art. 1), and widened standing for environmental public interest litigation (art. 58). In addition, the environment has become a general principle for civil activities, with Article 9 of the General Rules of the Civil Law, enacted in 2017, stating that “[a]ny civil activity conducted by civil subjects shall be conducive to saving resources and protecting the ecological environment.” More recently, the long-deliberated Environmental Protection Tax Law, promulgated by the NPC in December 2016, finally became effective in January 2018.
In practice, public interest litigation and the people’s assessor system help to enhance public participation in environmental protection cases. In May 2018, the Fourth Intermediate People’s Court of Beijing held a public trial, with a grand collegial panel present, of the first public interest litigation concerning air pollution in Beijing, in which a steel structure engineering company was prosecuted for emitting unprocessed volatile organic compounds during spraying lacquer and welding (People’s Procuratorate of Beijing (4th division) v. Beijing Duocai Lianyi Int. Ltd., Co.). In order to fairly address the varying interests of the parties, the court selected four jurors in accordance with the recently enacted People’s Assessors Law, which gives the findings by the people’s assessor, or juror, equal weight as those of the judges regarding questions of facts. The first-instance judgment has not been rendered yet.
At the moment, there is no individual right to the environment under the Chinese Constitution. Before the Amendment in 2018, environmental protection was only addressed in the Constitution in Article 26, which states that “[t]he State protects and improves the environment in which people live and the ecological environment. It prevents and controls pollution and other public hazards”, and Article 9, stating that “[t]he state ensures the rational use of natural resources and protects rare animals and plants. The appropriation or damage of natural resources by any organization or individual by whatever means is prohibited.” Both articles are among the general principles under Chapter 1, however, no right or duty to the environment is mentioned in Chapter 2, which sets out the fundamental rights and duties of the citizens. In 2013, over thirty NPC members put forward a bill, suggesting that both ‘ecological civilisation’ and ‘right to environment’ should be included in the Constitution. Though the Constitutional Amendment on 11 March 2018 added ‘ecological civilisation’ into the preamble and Article 89 (“Functions and Powers of the State Council”), no individual right or duty to the environment has been established under the Chinese Constitution. Nevertheless, certain rights have been extended to Chinese citizens in recent years. For example, Chapter 5 of the Environmental Protection Law has established the right to information and public participation, which is a step forward towards recognising an individual right to the environment.
In conclusion, though no individual right to the environment per se in China exists under the Constitution, progress has been made through the interaction of legislation and policy, building up a consistent and cohesive framework to tackle the environmental problem. Still, an individual right with a richer content is desirable to move aspiration into realisation. After all, the “battle for blue skies” is not one that can be easily won without public participation by right-bearing citizens.