Chinese Environmental Protection Law – The Illusion of Enhanced Human Rights Safeguards
In April this year, the Chinese legislature amended significantly the Environmental Protection Law adopted in 1989. This post seeks to predict the amendment’s implications on Chinese citizens’ substantive and procedural environmental rights.
Substantive environmental rights refer to economic and social rights to which individuals are entitled, prescribing the level below which environmental standards must not fall. Procedural environmental rights denote civil and political rights such as information rights, access to justice and remedies.
The first goal of the amendment is to consolidate existing environmental regimes. The revised law (1) reinforces the Environmental Impact Assessment (EIA) Law (articles 19, 44, 56, 61 & 63), (2) standardizes (a) the total emission control quota system for key pollutants (article 44), (b) the pollutant discharge permit system (article 45) and (c) the risk and emergency control system (article 47).
However, only a tiny portion of all construction projects are subject to the obligation to prepare EIA reports, leaving the rest without any professional or scientific assessment. There is little supervision for compliance after approval of these projects. Also, the Local People’s Governments (LPGs) may encourage cursory EIA evaluation for investments conducive to local GDP targets although the relevant standards have not been met.
The second objective of the revised law is to strengthen environmental governance. The revised law requires public authorities to: (1) solicit opinions from experts and relevant stakeholders (article 14), (2) set up (a) environmental quality monitoring stations, (b) information sharing systems (article 17), (c) an inter-jurisdictional joint coordination mechanism (article 20), (3) eliminate pollution-intensive techniques (article 46). Enhanced enforcement measures include imposing daily fines (article 59), the power to seal up and detain facilities (article 25) and administrative detention (article 63).
Nevertheless, some local Environmental Protection Bureaus (EPBs) which are responsible for enforcement may suffer from lack of funding, resources and motivations. Despite the rigorous enforcement measures, business operators in some localities may still find it more cost-effective to break the law than to comply with it. More importantly, there is no distinct right to a healthy environment which would allow a victim to seek judicial redress when the pollution level has increased because a particular project exceeds the permissible standard. The victim must wait until significant injury manifests itself and then prove the violation of other indirect rights pursuant to China’s civil law, property law and tort law.
The third theme of the revised law is to facilitate public participation in environmental decision-making. The revised law provides for: (1) the role of the news media in supervising violations (article 9), (2) citizens’ right to: (a) obtain environmental information (article 53), (b) obtain pollutant-discharging information (article 55), (c) lodge confidential complaints (article 57), (3) the obligation to disclose (a) accident assessment results (article 47), (b) national environmental quality, (c) key pollutant monitoring data (d) administrative actions taken (article 54), and above all, (4) public participation in the EIA process (article 56).
While the revised law enhances the adequacy and accuracy of construction project information available to the public, it does not make those rights enforceable by an independent tribunal. As a corollary, there is no check over the legality of agency behavior and affected citizens are left without any redress. Moreover, only a fraction of projects are subject to the compulsory public participation requirement. The project proponents and EIA institutions’ great discretion over the public consultation process may sometimes result in a biased reflection.
The fourth aspect of the revised law is to stipulate the right of access to justice by registered environmental NGOs which have specialized in relevant public interest activities for five years (article 58).
The restrictive regulations concerning social organizations’ registration promote the monopoly of government-sponsored environmental NGOs. Specifically, the high thresholds relating to human and capital resources as well as an approved body willing to supervise its operation threaten the survival of most environmental NGOs which are not established, funded or staffed by the government. Also, the registration of more than one social organization with a similar function within a region is disallowed. The standing requirement virtually bars members of the public and civic environmental NGOs from seeking judicial review.
The foregoing institutional deficiencies hinder the revised law from advancing from legal rhetoric to a milestone in vindicating citizens’ substantive and procedural environmental rights.