The Picture of the Environmental Regulation in China with a brush stroke of the European Model
Margherita Poto
Assistant Professor in Administrative Law University of Turin, Italy
Abstract: Our responsibility for the natural environment goes beyond the individual awareness; it reaches the legal domains of the Nation-States and the global interrelation of the different legal systems. In this article, the Chinese environmental regulation is analysed, with some hints from the European perspective, through the lenses of the global administrative law, in order to assess whether there is an effective implementation of the good administration principles, that confirms the feasibility of the model itself when applied to the environmental protection.
Keyword: Environment –Legal systems – Europe - China I. INTRODUCTION
Responsibility does not only lie with the leaders of our countries or those who have been appointed or elected to do a particular job. It lies with each of us individually. Peace, for example, starts within
each one of us. When we have inner peace, we can be at peace with those around us. When our community is in a state of peace, it can share that peace with neighbouring communities, and so on. When we feel love and kindness towards others, it not only makes others feel loved and cared for, but
it helps us also to develop inner happiness and peace. And there are ways in which we can consciously work to develop feeling of love and kindness. For some of us, the most effective way to do so is through religious practice. For others it may be non-religious practices. What is important
is that we each make a sincere effort to take seriously our responsibility for each other for the natural environment.
(A Zone of Peace. Excerpts from the Nobel Peace Prize Lecture of HH the Dalai Lama)
The article aims to provide an analysis of the People's Republic of China (PRC) environmental regulatory regime, marked by the filigree threads of the good administration principles applied at European level. This vision –though necessarily partial and vaguely misrepresenting- may anyway offer an observation point in the multitude of perspectives involving the environmental regulation. The analysis will mainly focus on the Chinese regulatory framework on environmental law, to assess whether the Chinese environmental governance mechanisms may be improved to conform to standards of good administration.
In this sense, the contribution offers a novel study of the Chinese environmental law, through the lenses of the European scholar, in order to verify its conformity with standards of good administration.
Nowadays, a process of quasi-harmonisation has been encouraged and sometimes required at International level.
Inter- and transnational norms thus increasingly define principles of good administration and, as some have argued, constitute a global administrative law, that emphasises the proper relationship between different regulatory systems, levels of governance, the adequacy of national environmental regulation for international trade, participatory rights and decentralisation. Accordingly, an investigation into the feasibility and applicability of principles of decentralisation and participation in regulatory governance to the Chinese regulatory regime is the key focus of analysis of the present contribution. However, this poses a series of questions regarding the opportunity and the feasibility of transposing what are essentially Western legal models to China and to reconcile them with Chinese practices. As the European approach to environmental regulation prima facie conforms to standards of good administration, this contribution investigates whether the Western approach provides a good model for China to implement standards of good administration and to address the challenges for making environmental protection effective that still lie ahead of China.
In the first part, I will focus on the globalisation of standards and its effects over the legal systems and in particular on networks of interested parties (both public and private), where the participation of the civil society in the decision making process is facilitated.
The second part aims to reconstruct the Chinese environmental law framework, with some hints to the European one, in order to establish the level of development of the two respective legal systems and their ability to achieve effective environmental protection in conformity with standards of good administration (transparency, coordination of administrative action, decentralisation of powers, participation of civil society, judicial review). The structural differences between the systems are evident: the European Union has developed, through its articulated and complex mechanisms, a regulatory framework where European Institutions, Member States and networks of agencies operate together with the common goal to protect the environment. The People's Republic of China has been developing a system where the Central Government (with a predominance of the State Council) plays a key role but where also the local authorities are gaining competences through delegation of powers. Moreover, an arising awareness of the vital necessity to protect the environment has now been consolidating amongst technical agencies (environmental bureaus), non-governmental organisations, civil society. The implementation and enforcement of the legal instruments are still the main challenges, but even in this case, the establishment of specialised courts for the environment shed light over the path towards environmental legal awareness.
1.1 THE GLOBAL DIMENSION
The community of legal scholars, researchers and practitioners in environmental law pacifically agrees on its global connotations, if only to consider the common interest to protect the Earth1. But what is global and why do we need to have global tools to face environmental challenges?
There are different characteristics within the globalisation phenomenon, all tapping into the common source of the word “globe”, ultimately recalling the shape of the Earth.
As pointed out in precedent works2, the use of the word “globe” may be traced back to the 16th century, when Magellan circumnavigated the earth and thus proved it to be a sphere.
The expression “global village” was first used by Marshall McLuhan, a scholar of mass communication, in 1964, in his book in which he analysed the effects that each “medium” or technology had, during the transition from the mechanical to the electric era and just before the electronic age, on changes in our way or life: «We live mythically and integrally […] in the electric 1 See G. Parola, Environmental Democracy at Global Level. Rights and Duties for a New Citizenship, London, 2013.
age, when our central nervous system is technologically extended to involve in the whole of mankind and to incorporate the whole of mankind in us, we necessarily participate […] in the consequences of our every action»3.
The new world which emerged in the 20th century is, according to McLuhan, distinguished by decentralisation, that shifts the primary point of interest and observation (and of finalisation) from a subjective viewpoint in the village dimension, to an impersonal global viewpoint: «As electrically contracted, the globe is no more than a village. Electric speed at bringing all social and political functions together in a sudden implosion has heightened human awareness of responsibility to an intense degree»4.
The global village is a beautifully fitting oxymoron, suggesting that the community, united by the speed of trade and communication, takes on the dimensions of a village. This expression became extremely widespread with the emergence of new technologies (first and foremost the internet, and here the idea reappears of communication through a reticular or network system). In this sense, it may be applied both to describe how the huge world has shrunk to an easily explored domain similar to a village, and also to indicate how each village within the world has destroyed its borders. Finally, the words “globalisation and globalise” only appeared in academic language from the mid 1980s5. The world has become a global area, where players, be they individuals or communities, interact free of the barriers of territorial borders. They exercise their choices without any limits. The International community, the European society are, in fact, societies of individuals, or simple citizens in a supranational public place, perceived as an extension of the private domain. Nations, like individuals, do likewise.
Hence the future of globalisation depends on the skill of both individuals and nations in contributing to the opening up of choices and of integration.
1.2 THE GLOBAL CONNECTIONS
From a legal perspective, some of the ideas coming from the globalisation are fascinating if not even useful to the harmonisation and to the dialogues between legal systems and cultures.
As said, environmental protection is one of the human activities subject to global regulation. The analysis will, therefore, focus on some global tools such as the non-hierarchical order and the idea of dialogue between authorities, technical bodies and agencies through a network structure. The global administrative order does not shape the traditional structure of a hierarchical pyramid but is a stratification of different layers, interwoven together, like the coloured fibres of a carpet. There is an even more incisive metaphor. Sabino Cassese observed how in the global dynamics the hierarchical system of sovereignty, where public powers were conventionally placed on top of the decision-making process and the civil society at the bottom, as the final addressee of the decisions, has been replaced by networks, where actors, both public and private, have equal access to information and therefore are all called to contribute to the decision-making process6.
3 M. Mcluhan, Gli strumenti del comunicare, Milano, 2002; M. Mcluhan, L. Lapham, Understanding Media: The
Extensions of Man, ed. W. Terrence Gordon, 1964, new ed., 2003. 4 M. Mcluhan, The Extensions of a Man cit., 5.
5H. Shams, Law in the Context of «Globalisation». A Framework of Analysis, in The International Lawyer, 2001, 1589. On globalization and law see also A.M. Slaughter, A New World Order, Princeton, 2004; M. Castells, Global
Governance and Global Politics, Political Science, January, 2005; S. Cassese, The Globalization of the Law, 37 New York University Journal of International Law and Politics 973, 2005, J.E. Stiglitz, Making Globalization Work, New
York, 2006.
6 This expression was used also to express American federalism by R. P. Nathan, Updating Theories of American
federalism, Paper presented at the Annual meeting of the American Political Science Association, Philadelphia,
Pennsylvania, September 2006, available on http://www.rockinst.org/assets/AC2C7D02-DC38-47AD-BA91-5A6F44F579BA.pdf, who recalls M. Grodzins, The Federal System, in Goals for Americans: the Politics of Leadership from Roosevelt to Reagan, New York, NY, Free Press, 1990. See also C. Harlow, Global Administrative Law. The Quest
In this sense, networks have the great peculiarity of transferring information smoothly to the actors, guaranteeing a high level of transparency. Actors are not only international but national, with a variety of possible participants such as non- governmental organisations and civil society in general7. This refers to the safeguard of procedural and judicial principles, to grant a high standard of good administration. Transparency, access to information, and the right to participate are examples of the first series. The right to be heard, and the right to a fair trial, are examples of the second series.
The analysis of the environmental regulatory framework, in China as well as in Europe, as an example of a “globalised regulatory system”, is the object of the second part of this contribution: the analysis will focus on the main reforms towards a structure rooted on legality, separation of powers, good administration and on the implementation of participatory rights.
Part II Chinese and European Environmental Law Chapter I China
1.1 THE LEGAL BACKGROUND
It has been observed that the foundations of effective environmental protection are the country’s legal regime and its implementation8. Historically, the Chinese have tended to guide social behaviour rather by using moral precepts and customs than through formal laws9. Yet, the rise of an industrial and urbanised society in recent times has challenged this approach. Since the late 1970s, the rule of law has acquired greater importance and has become a considerable factor in the political, economic and social transformation of the country. In this regard, the creation of the environmental regulatory regime has played a notable role in the evolution of China's legal system and has been increasingly seen as integral to the country’s future development.10 China's environmental legal framework is 7 E. Chiti, the Emergence of a Community Administration: the case of European Agencies, in Common Market Law
Review, (2000), 329: “The concept of network, as elaborated by a rich literature, is a powerful analytical instrument. [...]
First, the concept of network usually refers to an organization including both public and private bodies. Second, it indicates forms of co-operation with a low level of institutionalization; certain studies, in particular, highlight the prevalence of interpersonal relationships over the relations between bodies and institutions. Third, the literature on policy networks emphasizes the relevance of the “links” between the various bodies [...]; fourth, some scholars conceptualize the networks as “institutions, that is as sets of rules [...] regulating the interactions among the subjects, limiting their options and providing them with specific opportunities. Fifth, a number of particularly important studies directly dedicated to European agencies, highlight the learning process which takes place through the networks; the networks function, thus, is not only to permit an efficient division of labour and the exchange of information or other resources, but also to facilitate the development of behavioural standards and working practices that create shared expectations and enhance the effectiveness of the social mechanisms of reputational enforcement”
8 S. Beyer, Environmental Law and Policy in the People's Republic of China, Chinese Journal of International Law, Vol. 5, Issue 1, 185-211. For a historical overview on environmental problems in China see also R. L. Edmonds , Patterns of
China's Lost Harmony. A survey of the country's environmental degradation and protection, London and New York,
1994.
9 P. G. Harris, Environmental Perspectives and Behavior in China, Environment and Behavior, Vol. 38 No. 1, January 2006 5-21, illustrates his view on Chinese environmental behaviour, observing that “the Chinese have a very instrumental view of the natural world: It exits for the benefit of people. This mirrors traditional Chinese thought, notably Confucianism, which—despite sometimes being invoked as a model for environmentalism—is an anthropocentric paradigm”. The solution according to the author is to invest in educating the new elites in order to increase their environmental awareness. The author concludes that “Even affluent Chinese people are unlikely to act to protect the environment unless doing so is necessary to protect their own interests or those of their loved ones. This suggests that the environmental values of China’s elites will be especially important for the future of its environment as well as the regional and global environments increasingly harmed by modern China” (p. 13).
10 The creation of a modern environmental administrative apparatus dates from the beginning of the 1970s. A detailed chronology of the most significant events in the history of China's modern environmental movement may be found in C. R. McElwee, Environmental Law in China. Mitigating Risk and Ensuring Compliance, Oxford, 2011, 21 and ff. In 1971 an environmental protection department, the first governmental entity with an explicit and exclusive focus on environmental matters, was established in the State Planning Commission, a predecessor to the National Development
rather young and started almost from grassroot in the early 1970s after the country's attendance at the Stockholm Conference on Human Environment. In the subsequent era of China's open policy and reform, initiated by Deng Xiaoping, the environmental legal regime began to develop, coinciding with a growing awareness of environmental issues. In a relatively short period, China has built quite an extensive set of pollution prevention and control legislation.
As a consequence, the PRC Constitution was amended by the National People's Congress (NPC) in 1978, with a provision (Art. 26) declaring that, “The State protects and improves the living environment and the ecological environment, and prevents and controls pollution and other public hazards. The State organises and encourages afforestation and the protection of forest.11 The provision has been seen as the “constitutional foundation for the country's environmental framework”12.
1.2 THE ENVIRONMENTAL PROTECTION LAW
The foundational environmental law in China is the Environmental Protection Law (EPL), approved in conformity with the constitutional amendments. It was first enacted on a trial basis in 1979 and re-enacted in 1989. This law contains the seeds of most of the environmental laws introduced since 1979. It is structured in 47 provisions, divided into six Chapters, and namely: Chapter I on General Provisions; Chapter II Supervision and Management of the Environment; Chapter III Protection and Improvement of the Environment; Chapter IV Prevention and Control of Environmental Pollution and Other Public Hazards; Chapter V Legal Liability; Chapter VI Supplementary Provisions. Chinese legal scholarship highlighted the key role played by the law, as the “legal foothold for environmental protection in China”13.
The law has three fundamental pillars. Besides the provisions of basic principles (first pillar), the law defines the administrative levels for environmental protection institutions, and their responsibilities (second pillar). Furthermore, the law provides a basic management and implementation environmental system.
Following these provisions, an updated version of the EPL was implemented on January 1, 2015. TO achieve the national government’s goals (socioeconomic plans, environmental awareness and socioeconomic development), the updated EPL includes many important additions, such as stricter consequences for violating environmental laws, expanding the scope or projects subjects to EIA and allowing e-NGOs to take legal action on behalf of the public interest14.
These updates are all in line with the objective of establishing an environmental regulatory structure
and Reform Commission. In 1972, after a huge scandal of tainted fish in Hebei Province's Guanting reservoir, defined as the catalytic event that demonstrated the need for more concerted actions to check further the history of environment, a large contingent of Chinese delegates attended the United Nation's Stockholm Conference on the Human Environment. The Chinese delegates in this occasion realise that China had serious environmental problems and began to undertake the development of an environmental policy for China. R. Clay, China: The Next Environmental Super Power, 110
Environmental Health Perspectives, A526, September 2002. Consequently, in 1973, China held the first National
Environmental Protection Conference in Beijing, formulating a set of guiding principles. As a result, China's State Council enacted its first environmental regulations of the modern era, The Regulation of Environmental Protection and Improvement, which required that industrial facilities be designed, planned and constructed to enhance water conservation and recycling. In 1974 two new environmental administrative offices were formed to manage and coordinate national environmental tasks.
11 The information reported is taken from the White Paper on Environmental Protection, (1996/2005), published on
http://www.china.org.cn/english/2006/Jun/170355.htm, last visited January 2013. The Constitutional provision can be found in Constitution PRC, Issue No. 13, Serial No 1120 St. Council Gaz., May 10, 2004.
12 C. McElwee, op. Cit., 24.
13 W. Canfa, The rapid development of Environmental Protection Law, in Cai Dingjian and W. Chenguang (ed. by),
China's journey toward the Rule of Law, Legal Reform, 1978-2008. Brill, Leiden, Boston, 2010, 99.
14 R. L. Falk, J. Wee, China’s New Environmental Protection Law. Implications for Overseas Investors, Joint
for China, all based on the foundational principles of: Prevention First; Polluter Pays and Control through Regulation.
Prevention First holds that pollution should be prevented before it is created, encouraging individuals and entities to change their behaviour to become more engaged and protective of their environment. Polluter Pays principles provides that it is the responsibility of the polluting entity to bear the responsibility for and cost of preventing pollution and paying for any damage that results from its discharge.
Finally, Control through Regulation provides that local governments should take the lead in assuring the quality of the environment in their jurisdictions. The primary mechanism to be used is through the application of the law and the development of a regulatory system that permeates all decision-making with an environmental component and guides and change behaviours to provide for greater environmental protection.
Furthermore, the above-mentioned principles find an application in the so called “management rules”, which tend to look at these principles in a more practical way. The general provision for each of these management rules is contained in the Environmental Protection Law, and their actual implementation is contained in a specific regulation. More in details, the Management Rules are the following: 1. Environmental Impact Assessment; 2. The “Three simultaneous” System; 3. the Pollution Discharge Fees; 4. Emission Registration and Permitting; 5. Pollution Control Deadlines; 5. Target Responsibility System; 6. Centralised Treatment of Pollutants.
My focus in this contribution will be on the first management rule, the Environmental Impact Assessment, which has now its own law and constitutes the main path for commercial and industrial operations. It requires that the environmental impacts of every new project or substantive change to an existing operation must be evaluated. In case harmful impacts are revealed, steps must be taken to mitigate the impact, and assure that complete facilities operate in strict compliance with applicable environmental standards15.
1.3 ENVIRONMENTAL ASSESSMENT LAW AND PARTICIPATION
It has been observed that Chinese citizens experienced unprecedented change with respect to their legal right to participate in decisions affecting the environment when, in 2003, the National People's Congress of the People's Republic of China enacted the Environmental Impact Assessment Law of the People's Republic of China (the EIA Law).16 The EIA aims at examining and documenting the potential environmental impacts of a proposed activity also considering alternatives that may prevent or mitigate any perceived negative effects, thereby enabling fully informed, environmentally conscious decision-making.
The law was enacted for the purpose of carrying out the strategy of sustainable development, covering certain government planning activities and the construction of any project within the PRC or other seas subject to its jurisdiction. In February 2006, the former State Environmental Protection Administration formulated the Temporary Measures of the Public Participation in Environmental Impact Assessment, which specified the legal rules for public participation in environmental assessment and provided further participation in environmental protection. On April 2007, the Measures for the Disclosure of Environmental Information were approved, showing that “China's environmental protection offices were no longer relying on a policy of “going it alone” and were beginning to encourage and support public participation by mobilising society to protect the environment”17. Environmental non-governmental organisations began to develop in China along this trend towards environmental participation, serving a pivotal function in educating people, groups and 15 In C. McElwee, Environmental Law in China cit., 57, it is possible to find a complete map of the management rules.
16 Jesse L. Moorman and Zhang Ge, Promoting and Strengthening Public Participation in China's Environmental
Impact Assessment Process: Comparing China's EIA Law and U.S. NEPA, Vermont Journal of Environmental Law, Volume 8 2006-2007, http://www.vjel.org/journal/VJEL10054.html, last visited January 2013. Adopted on October 2002, the EIA became effective on September 1, 2003.
alliances, developing a system of social supervision, providing suggestions on national environmental issues, assuring assistance and supporting ideas such as green economy and protection of bio diversities.
1.4 INTERNATIONAL TREATIES
Paradoxically, though China has ratified several international treaties with environmental components18, these have no rank in China's hierarchy of laws and regulations. According to Chinese legal scholars substantive treaty obligations “become applicable in domestic law only through specific provisions of national legislation”19.
More specifically, there seems to be three ways that Treaty provisions become part of Chinese domestic law: first, through execution by administrative measures; second, through transformation and through direct application of International Treaties; third, a number of Chinese laws contain a provision on conflict rules between the international and the domestic rules, giving priority to the international treaty provision.
In our case, the Environmental Protection Law (Art. 46) states that: “If an international treaty regarding environmental protection concluded or acceded to by the People's Republic of China contains provisions differing from those contained in the laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservation”.
Nowadays, China has not effectively implemented any of the treaties containing environmental provisions, therefore the above mentioned rule on conflicting rules is destined to remain an empty shell in such a way that domestic rules have an effective dominance in regulating environmental law20.
To counterbalance this domestic predominance, it is worthy mentioning the effort to take part to international conferences, such as the United Nation’s Stockholm Conference on the Human Environment, after the scandal on tainted fish21, which has the merit to keep the public opinion informed about the international awareness on environmental issues.
2. THE ACTORS
2.1 GOVERNMENT
Regarding the players in the environmental regulatory system, the State Council is the main actor in the formation of national laws, having also the authority to issue regulations in its own name that have an effect just below of the national laws enacted the National PRC Congress and its Standing Committee.22 In particular, the State Council has the power to enact regulations and to interpret them. 18 C. McElwee, Environmental Law in China, cit., 69 lists the most relevant International Treaties ratified by China, including the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade; the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer and the Stockholm Convention on Persistent Organic Pollutions (POPs).
19Xue Hanqin and Jin Qian, International Treaties in the Chinese Domestic Legal System, 8 (2), Chinese Journal of International Law, 299, 2009.
20 Additionally, according to the legal doctrine even the Chinese membership to WTO in 2001 does not seem to have encouraged a significant shift in increasing environmental awareness: “unless China makes a strong commitment to pursue growth in its own best environmental interest and to prevent the transfer of environmental problems overseas […] we can expect it [the country, ndr} to cast a longer and longer environmental shadow abroad”. A. R. Jahiel, China, the
WTO, and Implications for the Environment, in N. T. Carter and A. P. J. Mol, (ed. by) Environmental Governance in China, London and New York, 2008, 178.
21 See note 10.
Moreover, it directly administers the national commissions and ministries, which have their own delegated rule making authority. It also directly administers several administrative and professional entities that are not commissions or ministries, that have been granted a “ministry-level status”, such as the former State Environmental Protection Administration (SEPA), now Ministry of Environmental Protection. The General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) is considered one of the most important authorities from an environmental perspective. The Ministries under the State Council that have control on environmental policies are the Ministry of Environmental Protection (MEP), its regional offices, and affiliated organisations; the National Development and Reform Commission (NDRC), that is the most important economic planning body; the Ministry of Water Resources; the Ministry of Housing and Urban-Rural Development; the Ministry of Agriculture; the Ministry of Land and Resources; the Ministry of industry and Information Technology; the Ministry of Health; the Ministry of Public Security; the Ministry of Transportation; the General Administration of Customs; the General Administration of Quality Supervision, Inspection and Quarantine.
The State Council plays a relevant role not only in enacting and interpreting regulations, but also in mobilising the public to achieve a green awareness. In 1996, China undertook the Platform for Action, the National Environmental Publicity and Education (1996-2010) program23 to improve environmental education and encourage citizens to protect the environment. Since then every five years the Chinese government undertakes this educational programme to strengthen the nation’s environmental awareness and to achieve a high level of public environmental awareness. The Environmental Education Programs are carried out through promoting environmental education in schools, adult education, publishing brochures, mass media and activities targeting ordinary Chinese citizens as well as business people and students24. China’s collaborative endeavour to popularise environmental protection knowledge nationwide has been gradually raising people’s environmental consciousness (State Council Information Office of China, 2006). The government has gradually increased the attention paid to environmental issues as manifested in the number of policy documents.25
A pivotal role in increasing public awareness around environmental issues has been played also by the China Environmental Awareness Program (CEAP), initiated jointly by the Ministry of Environmental Protection and UNDP, aiming to disseminate environmental protection knowledge. Started in 2006, CEAP is executed by Center for Environmental Education and Communications of Ministry of Environmental Protection and China International Center for Economic and Technical Exchanges. In 2008, on its official website, the CEAP released the results of the 2007 General Public Environmental Awareness Survey, hosted by CEAP and undertaken by Institute of Sociology of Chinese Academy of Social Sciences.
The survey shows that the environmental protection efforts in China have raised the environmental awareness significantly among the general public who have higher awareness of the importance, necessity, responsibility and urgency of environmental protection.26
administrative or local rules. Administrative regulations have higher legal authority than local decrees and administrative or local rules. Critically, on the Government monopoly in Environmental protection policies: G. Murray and I. G. Cook,
Green China. Seeking Ecological Alternatives, London and New York, 2002, 179 and ff..
23 National Environmental Protection Bureau, CPC Central Committee Propaganda Department and National Education Committee (1996). Platform for Action, the National Environmental Publicity and Education. http://www.chinalawedu.com/news/1200/22598/22603/22683/2006/3/sh248128012136002546-0.htm, last visited January 2013.
24 X. Guo, D. Marinova, Environmental awareness in China, Facilitating the greening of the economy, 19th
International Congress on Modelling and Simulation, Perth, Australia, 12–16 December 2011 http://mssanz.org.au/modsim2011, 1674-1675, last visited January 2013.
25 X. Huang, D. Zhao, C.G. Brown, Y. Wu and S.A. Waldron, Environmental issues and policy priorities in China: A
2.2 LOCAL AUTHORITIES
The PRC Constitution gives to the local authorities a significant power to act within their own jurisdictions on matters of local relevance (Constitution Articles 95-111). They have been also delegated relevant power by the Government in specific sectors and in particular in many of China's environmental laws. The bodies that function as both executive and organs of state administration are the Local people's governments (LPGs). They are headed by governors, mayors and heads of counties, districts, townships and towns27 and have the overall responsibility for local governments. On environmental issues, the Environmental Protection Law (Article 16) states that the local peoples governments at various levels shall be responsible for the environment quality of areas under their jurisdiction and take measures to improve the environmental quality.
In addition to LPGs, Environmental Protection Bureaus (EPBs) work at the provincial, prefecture and county level, charged with the responsibility to draft and implement plans and projects for environmental protection; formulate and implement local environmental regulations and standards; implement national and local laws, regulations and standards28.
2.3 NGOS, GUANXI, MEDIA
The freedom of organisation is set out in the Chinese Constitution and is also one of the basic human rights provided for in the International Covenant on Civil and Political Rights. Chinese NGOs began to increase rapidly at the end of 1980s, and reached their peak in 1996, where 186,666 registered NGOs existed. Nevertheless, the regulations of State prevented their further growth and a considerable number of them were closed, so that in 2003 142,000 officially registered NGOs remained29. These civic organisations are voluntarily established by members of the public and not by official bodies, do not report to a higher-level agency and their internal management is based on a self-governing model run on democratic principles rather than having state appointed officials. Their employees are part-timers and volunteers. They have been divided into two main types: student organisations and those formed by the wider general public.
Despite the efforts to enhance environmental awareness, the development of civic environmental organisations seems to be affected by a number of factors, especially related to funding difficulties30. 26 The Survey interviewed 3,001 people through a questionnaire, that was designed to investigate environmental knowledge, environmental awareness and environmental actions of the public. The 3,001 interviewees, produced through random sampling, included both rural and urban residents ranging from 15-69 in age from 20 provinces/autonomous regions/municipalities. The Survey asked if the respondents had heard of seven environmental concepts: white pollution, World Environment Day, garbage classification, Three Wastes (waste gas, waste water and solid waste), greenhouse effect, organic food and bio-diversity. The results indicate that 66.3％ of the respondents have heard of garbage classification with World Environment Day, white pollution, organic food, Three Wastes, greenhouse effect and bio-diversity, which implies that people have higher awareness about those environmental knowledge closely related to their daily life, like garbage classification, white pollution and organic food, but have lower awareness about those environmental knowledge far less related to their daily life like Three Wastes, greenhouse effect and bio-diversity.
27 Local Level Organic Law, Art. 56.
28 In this case, we assist to a joint cooperation between the LPGs and the EPBs: the local EPB can help formulate the local environmental regulations, they are enacted as local rules or local administrative local rules by the local LPGs: see C. McElwee, Environmental Law in China, cit., 114, who quotes the case f the Water Pollution Law (Art. 13).
29 Chen Xinxin, Research on China Civic Environmental Protection Organisations, in Yuwen Li (ed. by), Freedom of
Association in China and Europe. Comparative Perspective in Law and Practice, Leiden, Boston, 189 and ff.
30 Alongside the fundraising challenges that the e-NGOs shall face, the regulations of the State prevent the further growth of e-NGOs imposing strict registration procedures. Therefore, as an alternative to being registered as a social organisation, some e-NGOs have been registered as a company. In this case, NGOs are treated as for-profit entities and are therefore in a higher tax bracket. For Chinese NGOs with little financial support, this policy prevents them from registering as companies. Thus a larger number of environmental groups continue to exist as unregistered NGOs: see Lei Xie, Environmental Activism in China, China Policy Series, 2011, New York, 19 and ff..
In this regard, the role of international movements has been very important, thanks to the financial assistance provided from environmental organisations all around the world31.
Though the international movements are sustaining Chinese environmental organisations in increasing public awareness on environmental issues, the numbers of Chinese environmental organisations are still small compared to the extended territory and the massive population, and their functions have been limited to raising public awareness of environmental problems, carrying out campaigns to adopt environmentally sound behaviour, and conducting environmental policy studies32. The way forward to increase public awareness may be found in mobilising coordinated actions, supported by actions undertaken by personal networks (guanxi). In this regard, it has been observed that this is what distinguishes Chinese environmentalism from its Western counterparts, where institutionalised systems and organisational networks are crucial elements of coordinated actions, rather than personal networks. Personal networks consist of a collection of social ties or relations a person may have with other individuals, such as friends, classmates, relatives, and neighbours. In personal networks, the profile and the identity of the person are more relevant than the characteristics and identity of the organisation the individual belongs to33. Based on the most recent empirical research, it seems therefore that personal networks can play a pivotal role in the Chinese environmental movement34.
The role of the media shall not be underestimated in increasing environmental awareness, for the news media and environmental NGOs sometimes work in close cooperation. It is quoted as exemplar, the case of a television station showing the panic stricken golden monkeys terrified by the roar of machinery used in the virgin forests in Denqin County (Yunnan Province). This caused a nationwide response that contributed to the central government decision to force Denqin County to halt the logging.35
It is hoped that the time will come for public interest organisations for environmental protection, to flourish and to play a more significant role in policy making and law enforcement processes in China.
3. HOW TO IMPLEMENT THE SYSTEM
3.1 CHALLENGES
To overcome the problem of a relatively light punishment for breaking environmental laws, in the year 2000 the Supreme People's Court of the People's Republic of China issued five consecutive interpretations, which defined precise boundaries for criminal and non-criminal environmental violations. The Interpretation of the Supreme People's Court on Some Issues Concerning Specific Application of Law in the Trial of Criminal Cases Involving Environmental Pollution, published July 21, 2006, declared that any environmental disaster causing direct environmental losses of RMB 300,000, resulting in the death of one person or causing serious injuries to three people, shall be considered a crime. According to legal scholarship this interpretation had a fundamental deterrent role and contributed to promoted environmental justice, improving the severity of punishments available for environmental violations36.
3.2 ACTIONS
It has been observed that defending environmental rights is not an easy task, for environmental disputes have been on the rise in the recent years and an increasing number of problems has opposed 31 M. Xiayiang, L. Ortolano, Environmental Regulation in China, Rawman and Littlefield Publishers Inc., Oxford, 2000, 72. On the promises and pitfalls of the international and environmental aid to China see K. Morton. International Aid and
China's Environment. Taming the Yellow dragon, London and New York, 2005, 158 and ff.. 32 M. Xiayiang, L. Ortolano, Environmental Regulation in China, cit..64.
33 Lei Xie, Environmental Activism in China, cit., 54.
34 Lei Xie, Environmental Activism in China, cit., 173.
35 Xiaoying Ma and L. Ortolano, Environmental regulation in China, cit., 74.
obstacles to protect the environmental rights of pollution victims. The challenges may be found in: a) some loopholes in legislation; b) the difficulties to obtain impartial judgments; c) some difficulties in the judicial system itself.
a) We have seen that there are many legal provisions protecting the environment but they still seem to lack in many key aspects. There are no regulations covering the burden of the proof in case of responsibility, no rules on the determining causation and what the scope of the damage shall be. There are no specific laws on compensation for environmental damages, no laws regulating environmental dispute resolution, no laws covering environmental litigation of environmental rights infringements37. In this field, there is certainly need to improve the legislation with the necessary instruments to allow the victims to take actions and to be restored of their damages.
b) There are difficulties also in getting impartial judgments, due to the partiality of local governments supporting local businesses. Wang Canfa quotes an interesting case in Inner Mongolia, where the polluting business was built using overseas investments brought in by the local government. In consequence of an acid rain that killed most of the trees on the nearby mountains, the victims brought the case to the court, and the court ruled against them. The reason of such a decision, according to the author is to be found in the behind-the-scenes protection local government, providing to local businesses, which made it difficult for the courts to remain impartial38. Improving the establishments of environmental courts, impartial and third from the local governments, might solve the solution to the problems of exceeding influence of local governments over the courts. In this regard, it is worth sharing the information that in recent years, various cities and provinces in China established at least 39 specialised environmental courts, tribunals and panels39. The mentioned courts have been promulgating local rules allowing additional stakeholders, local prosecutors, environmental agencies, NGOs and citizens to bring public interest environmental suits.
c) The main reason behind the lack of impartiality of the judges has to be found in the fact that the local government handles court costs and government policy guidelines affect court rulings on environmental pollution. Moreover, very few judges seem to be trained or educated in the area of environmental law. Despite all the challenges, the situation is now improving, thanks to the above-mentioned establishment of specialised courts, to make environmental adjudication more professional, encouraging the use of legal channels to solve environmental controversies40.
Chapter II EUROPE
4. COMMON DEFINITION AND PARTICIPATION
Two aspects are worthy to be mentioned when using the European environmental law as a key to the interpretation of the Chinese system. On one side, a challenge encountered at European level in environmental regulation deals with the difficulty to set up an organised and structured legal framework based on a common definition of “environment” and on “environmental duties”. As I will further illustrate, the European system seems to be have set a reasonable number of environmental measures rather than an organised and uniform legislative framework.
On the other side, and related to the idea that the environmental law is subject to global regulation, the European system of environmental law has been widely exposed to the innovative principles set up by the Aarhus Convention (hereinafter, AC) and consequently it has been absorbing the idea of a participative dimension in the environmental regulatory framework.
37 Wang Canfa, The rapid development, cit., 538.
38 Wang Canfa, The rapid development, cit., 540.
39 Alex Wang, Environmental litigation in China today, in Green Law in China, chinadialogue special series, September 2001, in www.chinadialogue.net, last consulted January 2013.
In the following paragraphs, I will describe both the mentioned aspects: the struggle in providing definitions, compensated by a well functioning set of environmental measures, and the implementation process of the AC, followed by the introduction of good administration tools within the environmental framework.
4.1 MANY DEFINITIONS, NO DEFINITION
Contrarily to the Chinese system, where the environmental law has been given a centralised normative approach -though still lacking of a solid set of implementing measures-, in the European Union, the environmental regulatory measures have been formulated on an empirical basis, offered by the Court of Justice of the European Union on a case-by-case level, rather than with a systematic overview. The environment is defined differently depending on the context and instrument in which it is being used41.
No explicit legal definition of the environment can be found in the Treaty of the European Communities. However, former Article 174(1) and former Article 175(2) of the EU Treaty42 comprise in the European environment the natural resources such as the natural element water, man-made elements such as waste and human beings themselves.
An attempt to provide a definition of environmental can be found the Helsinki Final Act of 1975.43 There the co-operation in the environmental field comprises air, water, land and soil, genetic resources, rare animal and plant species, natural ecological systems, human health and waste.44 Additionally, the Lugano Convention of 199345, Article 2(10) defines the environment as the “natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors, property which forms part of the cultural heritage; and the characteristic aspects of the landscape”.
Further definitions that describe the relationship between the environmental elements are enshrined in Directives. In particular, Article 2(1)(a) of Directive 2003/4/EC46 (implementing the AC) comprises as environmental elements air, atmosphere, water, soil, land, landscape, natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements.
Hence, several documents at the European level provide a wide range of elements connected to the environment, including natural resources and sometimes human beings, man-made elements.
On the contrary, some environmental provisions at the European level are not broad at all.
Examples of narrow definitions are found in the Habitats Directive of 1992 which only comprises habitats and wild fauna and flora47 and the Wild Birds Directive of 1979 which only comprises wild birds.48 They, hence, seem to exclude humans and animals from the ambit of the environment. 4.2 IMPLEMENTING THE SYSTEM
Despite the vagueness and the differentiated definitions of environment, it shall be noted that in the past thirty years the European Union has adopted a substantial and diverse range of environmental 41 For further details, see G. Parola, Europe in Green, London, 2013.
42 OJ 2006, C-321 E/39.
43 Conference on Security and Co-Operation in Europe Final Act of 1 August 1975, 14 ILM 1992, p. 1292.
44 Conference on Security and Co-Operation in Europe Final Act of 1 August 1975, pp. 28-29.
45 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano Convention of 21 June 1993, ETS 150.
46 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on Public Access to Environmental Information and Repealing Council Directive 90/313/EEC, OJ 2003, L 41/26.
47 Preamble 1 of Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora Official Journal 1992, L 206/7.
measures aimed at improving the quality of the environment for European citizens and providing them with a high quality of life.
The ways to implement and enforce the environmental provisions are manifold.
First, as for all the European legislation, the Member States are required to properly implement the legislation in their own legal systems49.
Second and additional to any implementation and enforcement action taken at national level, the European Commission is considered by Article 211, first indent of the EC Treaty "Guardian of the Treaty": in this regard, the Commission is to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied.
Third, also a close cooperation between national authorities and the European Commission can contribute to a better implementation.
Third, in line with the objective to cooperate within a network system, where the information can be passed smoothly to all the different interested parties, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) connects the environmental authorities of EU Member States, acceding and candidate countries, and Norway. It aims at providing a framework for policy makers, environmental inspectors and enforcement officers to exchange ideas, and encourages the development of enforcement structures and best practices.
Finally, the judicial power in the Member States plays a key role in giving content to the environmental measures, since rights and obligations deriving from Community law are enforced on daily basis by national courts and tribunals. The European Union Forum of Judges for the Environment contributes to promote the enforcement of national, European and international environmental law by contributing to a better knowledge by judges of environmental law50.
Whatever the means used, the overall objective of the Commission is to ensure that European environmental legislation is fully, correctly and promptly implemented.
4.3 THE AARHUS CONVENTION
The European Union has taken a leading role in environmental protection at international level. 51 This is particularly evident in the AC implementation. International environmental law and more specifically the procedural guarantees the AC introduced have contributed to re-shape the EU legal order. The AC is structured into three main pillars, dealing with: (1) the right of access to information; (2) the right to participate in decision-making, and (3) the right of access to justice in environmental matters. The pillars reflect the shift in mentality required to the AC parties in terms of opening up the doors of environmental decisions to good administration principles, such as transparency, participation, judicial review. This has had two implications: on one hand, the connection between environmental protection and human rights has improved at European level, at least from a procedural perspective. These improvements relate to the harmonization of administrative proceedings concerning environmental impact assessments, with an emphasis on the participatory rights conferred to the interested parties in the decision making process.52 As a 49 For further details, visit the webpage http://ec.europa.eu/environment/legal/implementation_en.htm, last consulted February 2013.
50http://www.eufje.org, last consulted February 2013.
51 Joanne Scott, From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory
Attraction, 57 Am. J. Comp. Law, 897 (2009); J. Scott & L. Rajamani, EU Climate Change Unilateralism, 23 Eur. J. Int’l
L. 469 (2012); A. Zito, The European Union as an Environmental Leader in a Global Environment, 2 Globalizations, 363 (2005); J. Chiavari, S. Withana & M. Pallemaerts, The Role of the EU in Attempting to ‘Green’ the ICAO, ECOLOGICINSTITUTE, Epigov. Paper n. 35 (2008).
52 European Community ACCC/C/2006/17, ECE/MP.PP/2008/5/Add.10, 2 May 2008, para. 49, in A. Andrusevych, T. Alge, C. Konrad (eds), Case Law of the Aarhus Convention Compliance Committee (2004-2011), 2nd Edition (RACSE, Lviv 2011) cit., page 40.
consequence, the AC’s specific procedural requirements contributed to increase the number of cases decided by the Court of Justice of the European Union (CJEU) on the Convention. 53
On the other hand, the EU’s participation in the AC (the so-called “Europeanization of the Aarhus Convention”) has limited the procedural autonomy of Member States. Christine Eckes has masterfully described this second implication. “When concluding a mixed agreement, the Member States are bound to comply with their obligations under international law (here the Aarhus Convention) and to give effect to EU law, including the EU’s international agreements which, pursuant to Article 216 TFEU, become “an integral part of the legal order of the European Union.” This leads to a situation in which the AC entails far more reaching obligations for Member States under EU law than under international law. This is the case mainly because, under EU law, not only is the international agreement itself binding, but also its interpretation by the Court of Justice of the European Union. This is not a peculiar phenomenon of the AC, but it becomes apparent and real in the application of the Convention because of its subject matter—procedural rights—and its great detail.
The AC Compliance Committee has affirmed the same concept. Commenting on Art. 6 (2), for instance, the Compliance Committee observes “when examining compliance by the Party concerned, the Committee must take into account the structural difference between the European Community and other Parties, and the general division of powers between the Community and its Member States in implementing Community directives.”54
5. PULLING THE THREAD TOGETHER: THE COMPARISION BETWEEN EU AND CHINA
The Chinese legal systems has been read with the European lenses with the aim to assess whether there are aspects and similar ways to build up an environmental regulatory regime.
On one side, I have observed how the Chinese system has progressively become sophisticated in approving legislation and in defining the institutional tasks, though it still lacks in finding effective solutions to implement the normative measures. Also the recent effort to update the EPA in 2014-2015, with the government crackdown on environmental violations, testifies a huge legislative effort, which does not seem to be followed by effective and tangible outputs in terms of participation of the civil society to the environmental decision-making process. Therefore, there are intrinsic challenges in the system, such as: a) some reform-resistant loopholes in the legislation; b) the difficulties to obtain impartial judgments; c) some structural difficulties in the judicial system itself. As for a), many legal provisions protecting the environment but they still seem to lack in many key aspects. There are no regulations covering the burden of the proof in case of responsibility, no rules on the determining causation and what the scope of the damage shall be. There are no specific laws on compensation for environmental damages, no laws regulating environmental dispute resolution, no laws covering environmental litigation of environmental rights infringements. In this field, there is certainly need to improve the legislation with the necessary instruments to allow the victims to take actions and to be restored of their damages. As for b), there are difficulties in getting impartial judgments, due to the partiality of local governments supporting local businesses. The solution to the 53 See C. Eckes, Environmental Policy “Outside-In”: How the EU’s Engagement with International Environmental Law
Curtails National Autonomy, in German Law Journal, Special Issue, EU Law qua Global Governance Law, vol. 13 n. 11,
2012, available at http://www.germanlawjournal.com/pdfs/Vol13-No11/PDF_Vol_13_No_11_1151-1176%20Eckes.pdf, last visited June 2013.
54 European Community ACCC/C/2006/17, ECE/MP.PP/2008/5/Add.10, 2 May 2008, para. 50, in A. Andrusevych, T. Alge, C. Konrad (eds), Case Law of the Aarhus Convention Compliance Committee (2004-2011), 2nd Edition (RACSE, Lviv 2011) cit., pp. 40-41.
problems of exceeding influence of local governments over the courts might be solved by improving the establishments of environmental courts, impartial and third from the local governments. In this regard, it is worth mentioning that in recent years, various cities and provinces in China established at least thirty-nine specialised environmental courts, tribunals and panels. The mentioned courts have been promulgating local rules allowing additional stakeholders, local prosecutors, environmental agencies, e-NGOs and citizens to bring public interest environmental suits. As for c), the main reason behind the lack of impartiality of the judges has to be found in the fact that court costs are handled by the local government and government policy guidelines affect court rulings on environmental pollution. Moreover, very few judges seem to be trained or educated in the area of environmental law. Despite all the challenges, the situation is now improving, with the establishment of specialised courts, to make environmental adjudication more professional, encouraging the use of legal channels to solve environmental controversies.
On the side of the European law level, I have underlined that in the EU a reasonable number of environmental measures has been approved and a quite effective regulatory system is at place, where different actors, agencies and institutions have a well-defined function in the network and where the good administration principles have entered via the Aarhus Convention (AC). As a consequence, the procedural guarantees introduced by the AC have contributed to re-shape the EU legal order. The AC is structured into three main pillars, dealing with: (1) the right of access to information; (2) the right to participate in decision-making, and (3) the right of access to justice in environmental matters. The pillars reflect the shift in mentality required to the AC parties in terms of opening up the doors of environmental decisions to good administration principles, such as transparency, participation, judicial review. This implied that the connection between environmental protection and human rights has improved at European level, at least from a procedural perspective. These improvements relate to the harmonisation of administrative proceedings concerning environmental impact assessments, with an emphasis on the participatory rights conferred to the interested parties in the decision making process.
Despite the mentioned achievements, also in the EU there is still room for improvements, particularly looking at the two main challenges of: 1) finding a common definition of environmental law; and, most important, of 2) building up a common regulatory framework where the environmental rights shall be included in the list of fundamental rights. These are the main loopholes for the effective implementation of the AC and more in general for the consolidation of an effective participation of the citizens to the environmental decision-making process.
Despite the structural difference between the two compared systems, both seem to have a common basis, tapping into the general awareness of an ecological responsibility of the institutions, the associations, and ultimately, the citizens, toward the environment. This awareness has been the engine that drove the Chinese reforms undertaken from the '70s and still on process, as well as the inspirational idea behind the attempts to define the environment and to develop an ecological conscience at European level.
6. CONCLUDING REMARKS
The analysis of the environmental regulatory system in China was guided by the compass of the European last achievements, in a perspective that has used some of the tools of the global administrative law (looking at the actors, at the legislative tissue and at the effective implementation of the good administration principles). From this scrutiny evidence emerges in finding common aspects for a sound environmental regulatory regime. On one side, we have the Chinese system, extremely sophisticated in approving legislation and in defining the institutional tasks, but still
lacking in implementation; on the other side, we have the struggle at European level to find a common definition of the environmental rights as fundamental rights, counter-balanced by a quite effective regulatory system, where different actors, agencies and institutions have a well defined function in the network and where the good administration principles have been progressively entering via the implementation of the AC.
Despite this main structural difference between the two compared systems, it is noteworthy that both of them seem to have a common basis, tapping into the general awareness of an ecological responsibility of the institutions, the associations, and ultimately, the citizens, towards the environment.
This awareness has been the engine that drove the Chinese reforms undertaken from the '70s and still on process, as well as the inspirational idea behind the attempts to define the environment and to develop an ecological conscience at European level.
The ecological responsibility is part of the DNA of the Chinese culture, impinging in the doctrine of the Chinese Buddhist philosophers of the “unimpeded interpenetration of all phenomena”55. According to this theory, everything in the Universe is literally dependent upon everything else, nothing stands alone, everything is linked together through time and space”56. It may imply that “drop of water suspended from one leaf of a mahogany tree in Burmese rain forest is united with the exhaust fumes belching from a battered Chevrolet in Mexico City”57.
The law of interdependence implies that the entire world is cooperative, meaning that personal fulfilment is found in interdependence and not in independence.
Similarly, the Western scientists and scholars elaborated the chaos theory. The first pioneer was a meteorologist, Edward Lorenz, who observed that there are two governing concepts behind this theory: the first is the idea that systems rely upon an underlying order, and the second is the idea that simple systems can cause very complex and unexpected behaviours or events.
These observations led him to formulate the so called “butterfly effect”, elaborated into an academic paper entitled “Predictability: Does the Flap of Butterfly's Wings in Brazil set off a Tornado in Texas?”58
It is evident that the ecological awareness has a common basis, from China to Europe. This shall be sufficient to encourage both legal systems to continuously improve their structures and tools towards the same direction, which comprises the same acknowledgement to love, respect, preserve and be responsible towards the Earth.
“What is important is that we each make a sincere effort to take seriously our responsibility for each other for the natural environment”59.
55Ram Kishore Prasad, Ecology and Buddhism, in R. Narayan, J. Kumar (ed. by), Ecology and Religion, Deep and Deep
Publications, New Delhi, 2008, 50 and ff.. On this topic, see as M. E. Tucker and D. R. Williams, Buddhism and Ecology. The Interconnection of Dharma and Deeds, Harvard University Press, 1997.
56Ram Kishore Prasad, Ecology and Buddhism, 50.
57Ram Kishore Prasad, Ecology and Buddhism, 50.
58The article and the development of the theory can be found in E.N. Lorenz, The essence of chaos, University of Washington Press, 1995.
