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# The Author 2006. Published by Oxford University Press. All rights reserved.

Advance Access publication 17 February 2006

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Environmental Law and


Policy in the Peoples
Republic of China
Stefanie Beyer

The purpose of this paper is to take a look at the main reasons for the apparent
ineffectiveness of the environmental regulatory regime in the Peoples Republic of
China. In order to assess the current state of Chinas environmental legislation
framework, an overview of all major environmental codifications is provided,
firstly, by establishing the institutional and historical context and, secondly, by
reviewing environmental legislation and policies. This examination will reveal that
Chinas environmental protection regime is surprisingly comprehensive, even
though statutory deficiencies exist, and will highlight enforcement tensions
between the centre and the peripherya result of decentralization and growing
local protectionismas major obstacles to the implementation process.

I. Introduction
The cornerstone of effective environmental protection is a countrys legal regime and its
implementation. Historically, the Chinese have tended to guide social behaviour rather by
using moral precepts and customs than by formal laws.1 Yet, the rise of an industrial and
urbanized society in recent times has challenged this approach. Since the late 1970s, law
has acquired greater importance and has become a considerable factor in the political, economic and social transformation of the country. Especially, the creation of the environmental
regulatory regime has played a notable role in the evolution of Chinas legal system and is
increasingly seen as integral to the countrys future development. Chinas environmental
legal framework is rather young and started almost from scratch in the early 1970s after

Dr. Stefanie Beyer, LL.M, works as lawyer in Cologne, Germany (email: StefanieBeyer@hotmail.com). This
paper constitutes the first part of the master thesis Environmental Law and Policy in the PRC: Shaping
an Environmental Protection Regime for Green Olympics 2008 in Beijing. Im grateful to my tutor,
Mr Robert Home, Director of Research and Reader in Land Management/APU Cambridge, and to Mr Alexander
Beckers, who always has helped me patiently with the layout. The paper was completed on 4 December 2005.
1 William P. Alford and Yuanyuan Shen, Limits of the Law in Addressing Chinas Environmental Dilemma,
16 Stanford Envtl. LJ (1997), 125.

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Chinese Journal of International Law (2006), Vol. 5, No. 1, 185 211

doi:10.1093/chinesejil/jmk002

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Abstract

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the countrys attendance at the Stockholm Conference on Human Environment. In the


subsequent era of Chinas 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. However, the formal legislation has hardly been translated into
effective controls. Chinas efforts have been complicated by enforcement tensions which have
arisen between the centre and the peripherya result of decentralization and growing
regional autonomy. Besides, there is hardly any tradition of settling regulatory issues
through courts and most polluters do not even acknowledge that violating environmental
laws and regulations is a legal offence. Pressing environmental problems still exist. In fact,
environmental degradation is an increasingly serious issue. Adverse social consequences
reflecting the failure of effective environmental protection, as there are health problems,
mass migration and resettlements, contribute to the dissatisfaction of a growing number
of Chinese people. This situation reveals the implementation deficit of Chinas present regulatory approach. Provided that economic growth remains the priority for China, how can the
country effectively enforce its legal regime without compromising environmental concerns?
When pollution harms people and natural systems, it typically imposes, although more
indirectly, economic costs that are often higher than costs for well conceived measures for
abatements. This points to an approach that integrates pollution prevention and control
measures early into a nations long-term economic development. Moreover, when addressing
this question, Chinas unique legal, political and social situation has to be taken into account.
Direct transfers of Western solutions are unlikely to succeed in contemporary China.
Environmental solutions rather ought to focus on Chinas existing institutional framework
and contribute to providing basic institutional infrastructure for the implementation and
the enforcement of basic rights. Particularly, the guarantee of individual rights as private
property and contractual rights is a fundamental presupposition for effective environmental
protection. Also, public awareness of environmental issues, as well as the possibility of public
participation by citizens and non-governmental organizations (NGOs) that provide expertise
and accelerate the implementation process, are important factors.
Looking at the methodological perspective, China is an interesting study object. The
Chinese bureaucratic structure of government provides a valuable opportunity for comparative research among Chinas different provinces. All provinces are required to enforce the
same environmental laws and regulations promulgated by the central government.
However, provincial success in enforcement efforts varies widely at a local level. This variance
allows assessments of local capacity as a factor for the effectiveness of enforcement efforts.
Another reason to focus on China is the countrys growing international significance due
to its enormous economic expansion that accompanied Chinas remarkable transformation
segueing the command economy to a market-based and increasingly less planned economy.
At the international level, China contributes to acid rain and soaring carbon output that
aggravates global warming. The international community is concerned by the potential
for the global environmental devastation should China fail to successfully develop and
implement environmental policies. Just recently, the apparent inefficiencies of Chinas

Beyer, Environmental Law and Policy in China 187

environmental protection regime became evident when it took the Chinese government 10
days to publicly acknowledge the existence of an 80-kilometre-long slick of highly toxic
benzene that had been caused by an explosion of an upriver chemical plant which had contaminated water supplies for one of Chinas biggest citiesHarbin in north-eastern Heilangjiang provinceand threatened neighbouring Russia.2

II. Chinas geographic and environmental setting

2 Petra Kolonko, Grunes China?, Frankf. Allg. Zeitung (26 November 2005), 10.
3 Frankf. Allg. Zeitung, Chinas Wirtschaft lauft auf Hochtouren (26 January 2005), 11.
4 Haiyan Wang, China: An Introduction to Environmental Law and Policy, 34 EPL (2004), 193.
5 Eric W. Orts, Environmental Law with Chinese Characteristics, 11 Wm. and Mary Bill of Rts J (2003), 548;
Xinzhen Lan, Olympics vs Sandstorms, 45 Beijing R. (2002), 19.
6 The World Bank, Clear Water, Blue Skies: Chinas Environment in the New Century (1997), 23.
7 Orts, above n.5, 551.
8 Vaclav Smil, Chinas Energy and Resource Uses: Continuity and Change, 156 China Quart. (1998), 940.

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Chinas spectacular growth of almost 10 per cent average annually over the past two decades
has provided a significant increase in the standard of living for hundreds of millions of
Chinese.3 At the same time, this development has also produced pressing environmental problems. China has the worlds largest population, with almost 1.3 billion people, harsh
natural conditions, a relatively small area of cultivated land, few water resources and heavy
pollution. Half of Chinas population lives on 13 per cent of Chinas territory, resulting
in a high population density of 118 persons per square kilometre, imposing enormous
burdens on the environment.4 A dramatically increased demand for energy, natural resources
of all kinds, including water and land, accompanied the countrys tremendous economic
development. Resources have been depleted, triggering a range of secondary impacts in
desertification, flooding and biodiversity loss.5 Pollution levels in the major cities are
among the highest on earth. A noted World Bank study based on conservative assumptions
estimate that the mid-1990s urban air quality and water pollution alone cost the Chinese
economy US$32.3 billion annually in premature deaths, morbidity, restricted activity and
other negative health effects.6 China is plagued by two paradoxical water crises, since northern China suffers from regular drought whereas floods threaten the south. Water scarcity has
led to the depletion of underground aquifers, to the destruction of fertile soil and has caused
an influx of eco-refugees who have fled areas ruined by drought and dust storms. Poorly regulated industries and household emissions have caused water and air pollution. More than 75
per cent of the water flowing through Chinas urban areas is unsuitable for drinking or
fishing. Sixty million people have difficulties in getting access to water for their daily
needs and almost three times that number drink contaminated water every day.7 Due to
Chinas reliance on coal for its energy needs, almost two-thirds of Chinas cities do not
meet the standards set out by the World Health Organization for acceptable levels of total
suspended particulates and sulphur dioxide.8 Desertification affecting one-quarter of
China forces thousands of people to migrate every year and now threatens to envelop

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Beijing. Chinas development has also made the countryafter the United Statesthe
worlds second largest emitter of greenhouse-gas. China is expected to be the worlds
largest greenhouse-gas polluter in 2020.9 Health problems, mass migration and resettlements
have the potential to stir social unrest and are consequences of a failure in effectively integrating environmental considerations into development efforts. In addition, a floating
population of approximately 100 million migrant workers roams from city to city due
to Chinas geographically uneven economic growth and increase urban environmental
problems resulting from overcrowding.10

III.A. The institutional framework


The Preamble of the Constitution defines the Peoples Republic of China as a unitary
multinational state created jointly by the people of all its nationalities. Chinas centralistic
system roots in its history and can be traced back to its first unified dynasty, established in
221 BC.11 Present-day China is divided into provinces, autonomous regions and municipalities,12 which are directly under central government control. The administrative structure
has become increasingly decentralized in recent years, where responsibilities and functions
are split between central and local institutions. The highest body of the State is the National
Peoples Congress (NPC), which has the authority to enact all basic laws ( jiben fa),13
resolutions and decisions, to supervise their implementation and to make amendments to
the Constitution.14 Since the NPC holds a meeting only once a year for a short period of
time, most legislation activity is conducted by its Standing Committee. The Standing
Committee meets bi-monthly and has the competence to pass laws ( fa) other than those
basic laws being the domain of the NPC, to interpret the Constitution and basic
laws (lifa jieshi ), and to supervise other principal organs.15
Chinas chief executive organthe State Councilis authorized to enact administrative
regulations (xingzheng fagui ) pursuant to national and constitutional law, while its ministries,
commissions and departments are competent to issue administrative rules (xinzheng guizhang).16 Under the State Council, the Commission for the Protection of Environmental
and Natural Resources (ENRPC) co-ordinates environmental protection work and develops
9 Frankf. Allg. Zeitung, China wird zum groten Treibhausgas-Emittenten der Welt (08.09.2004), 11;
The World Bank, above n.6, 77.
10 Orts, above n.5, 550.
11 Guiguo Wang, The Legal System of China, in: G. Wang and J. Mo (eds), Chinese Law (1999), 39.
12 Beijing, Tianjin, Shanghai and Chongqing.
13 The term is not defined; however, it is generally accepted that it refers to statues that have a fundamental impact
on the whole society.
14 PRC Constitution, Art.62.
15 Ibid., Art.67 (The State Council, the Central Military Commission, the Supreme Peoples Procurate and the
Supreme Peoples Court).
16 Ibid., Art.89; Bryan Bachner and Xi Wang, Environmental Law, in: C. Wang and X. Zhang (eds), Introduction
to Chinese Law (1997), 18.

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III. Chinese environmental legal regime

Beyer, Environmental Law and Policy in China 189

III.B. Dispute resolution


China has a national judiciary, headed by a Supreme Peoples Court, which itself is
vested with, in addition to the power to decide concrete cases, extensive interpretative
powers exercised in the abstract (sifa jieshi ).22 This authority concerns the specific
application of laws in judicial proceedings that have binding force on all courts. As a basic
principle, Chinese courts are not authorized to interpret laws and are confined to the
implementation process. Generally, courts will not overturn these interpretations. Below
national level, Chinas system of courts consists of local peoples courts23 and of courts
having exclusive jurisdiction over cases involving disputes over maritime, forest, railway
17 William P. Alford and Benjamin L. Liebmann, Clean Air, Clear Process? The Struggle over Air Pollution Law in
the Peoples Republic of China, 52 Hastings LJ (2001), 709; Mei Hong, Legal Gateways for Environmental
Protection in China, 4 Review of the EC and IEL (1995), 24.
18 SEPA was established in 1998 and superseded NEPA (National Environmental Protection Agency); H. Wang,
above n.4, 200.
19 Feng Lin, Law on Environmental Protection, in: G. Wang and J. Mo (eds), Chinese Law (1999), 561.
20 PRC Constitution, Art.100.
21 Hong, above n.17, 25; G. Wang, above n.11, 49.
22 PRC Constituttion, Chapter III(7). For general exposition, see G. Wang and J. Mo (ed.), Chinese Law (1999);
B. Bachner and X. Wang, above n.16, 16; G. Wang, above n.11, 56.
23 Basic Peoples Courts at county level; Intermediate Peoples Courts at prefecture level; High Peoples Courts at
provincial level.

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environment-related policies and guidelines since 1984.17 The administrative arm of the NPC
is the State Environment Protection Administration (SEPA), which conducts unified supervision at the national level and has nationwide control over environment protection throughout the country.18 In particular, SEPA is responsible for determining national environmental
policies for the protection of air, water, soil and for waste disposal, for issuing national
environmental regulations and national standards, for providing guidance to provinces on
environmental matters and for supervising and managing environmental protection at
national level. Apart from SEPA, central government ministries as the Ministries of Agriculture, Energy, Forestry and Water Resources have the power to issue environmental regulations
at national level (guojia biaozhun).19 Local peoples congresses and their respective standing
committees are authorized to adopt local regulations (difang fagui ), provided they are in
accordance with superior legislation and regulations.20 Local administrative rules (difang
xingzheng guizhang) implementing national laws and regulations as well as local regulations
are issued by local governments. At the local government level, from provincial level down
to the levels of cities, counties and townships, Environmental Protection Bureaus (EPBs) represent the decentralized power structure. They are funded by the local governments of which
they are part and are responsible for environmental protection under their jurisdiction,
including drafting local laws, issuing administrative regulations, supervising and organizing
work on environmental monitoring and control, and for the education and training in
environmental issues. EPBs constitute the basic units for compliance with environmental
laws and regulations, and are assisted by research institutes and monitoring centres.21

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24 G. Wang, above n.11, 54.


25 Bobby Wong, Traditional Chinese Philosophy and Dispute Resolution, 30 Hong Kong LJ (2000), 304.
26 Yuhong Zhao, Environmental Dispute Resolution in China, 16 JEL (2004), 162.
27 The Supreme Peoples Court issued the Provisions on Trying Civil Cases Concerning Peoples Mediation Agreements in September 2002.
28 General Principles of the Civil Law (1986), Art.124, 134.
29 Michael Palmer, Environmental Policy in the Peoples Republic of China: The Face of Domestic Law, 156
China Q (1998), 804; Zhao, above n.26, 170.
30 Administrative Review Regulations (1991), Arts 1218 and 47.

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and military issues.24 Courts consist of special divisions for civil, administration, criminal
and commercial matters that are supplemented by an enforcement branch. China follows
the principle of two instances of trails for final adjudication; the jurisdiction of each court
is assigned by law. Environmental cases involve civil, criminal and administration litigation.
Generally, court proceedings are perceived as a last resort. In a legal and political milieu that
traditionally refrains from the encouragement of individual rights, many environmental grievances are not transformed into disputes, but rather endured. Due to the ancient Confucian
concept of social harmony, law in general is not seen as an adequate mechanism to shape
human behaviour. According to this philosophy, the ultimate goal of social harmony is
not attained by harmonizing subjective rights of persons intending to defend their own interests. Moreover, individual rights are considered to disturb the social order. Consequently, the
focus lies on preventing disputes from happening rather than on finding out whose rights
have been infringed.25 This explains the conciliatory approach of dispute settlement, particularly the preference for mediation in both traditional and contemporary China. Civil
disputes are dealt with by Peoples Mediation Committees, an NGO under the leadership
of local peoples governments and local peoples courts. In the context of environmental
issues, peoples mediation (renmin tiaojie) is mostly engaged in the resolution of disputes
over noise pollution between community enterprises or workshops and their neighbouring
residents.26 The participation in mediation is voluntary; however, settlement agreements
are, according to the newly issued provisions on peoples mediation, treated as civil contracts,
implying that the agreement may be neither modified nor repudiated.27
Civil claims, including individual as well as joint actions concerning environmental issues,
are processed under the Law of Civil Procedure. Although no nationwide statistics on
environment-related claims are published, courts reports indicate that the number of
rulings relating to air, water and land pollution is increasing. Today, civil liability is a
common form of remedy in China. Plaintiffs mostly seek an injunctionan order for the
elimination of pollutants or damages as compensation. The obligation to compensate any
direct loss caused by environmental pollution is stipulated in Article 41 of the Environmental
Protection Law and specified by the General Principles of Civil Law.28 In civil cases, the
typical outcome is a mediated agreement that has binding force.29
Under the system of administrative review (xingzheng fuyi ), administrative activity, nonperformance or sanctions are subject to administrative appeal or judicial review at the
discretion of the party concerned.30 In practice, the majority of administrative disputes

Beyer, Environmental Law and Policy in China 191

III.C. Legislation review


III.C.i. Historical development
Chinas environmental law evolved slowly and developed over three periods, commencing
with the establishment of the Peoples Republic in 1949. In the 1950s and during the
period of the Cultural Revolution dating from 1966 to 1976, hardly any progress was
achieved. Only few environmental interests can be located, such as in the regulation on
mineral resources and factory safety, including provisions on water pollution prevention
and waste disposal.34 At that time, environmental protection was simply not on the
agenda due to Chairman Maos policy of the Great Leap Forward, aiming to revitalize
the economy, and to his firm belief that nature had to be defeated by humans.35 It was
not before 1973, after severe floods and droughts had taken place, that a decision concerning
environmental protection and improvement was issued following Chinas signature of the
1972 United Nations Stockholm Declaration on the Human Environment. This decision
constituted the impetus for the environmental legislation in the subsequent era of Chinas
31 Hong, above n.17, 27.
32 Administrative Procedure Law (1989), Art.12.
33 Hong, above n.17, 28.
34 Bryan Bachner, Regulating Pollution in the Peoples Republic of China: An Analysis of the Enforcement of
Environmental Law, 6 Colorado JIELP (1995), 377; Palmer, above n.29, 789.
35 Alford and Shen, above n.1, 129; Bachner, ibid., 377; Hong, above n.17, 22.

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are settled through mediation by environmental protection bureaus at various levels.31 The
request of the parties initiates the mediation process. The administrative authorities are
empowered to make a final decision, including the imposition of liability for compensations
when mediation fails. If one party refuses to accept the decision, it may bring a suit before the
peoples court. The Administrative Procedure Law governs the judicial review of administrative decisions. However, it should be noted that the review of certain decisions is excluded.
This applies to State acts affecting the national defence, foreign affairs and to those decisions
announced with general binding force.32 In practice, these kinds of decisions are beyond
judicial review. For instance, the Three Gorges Dam Project that is still being vigorously
criticized for endangering the environment was classified as such a decision with respect
to its significance for economic development.
In cases of criminal liability, individuals and units may initiate criminal prosecution. The
procuratorates exercise the power of prosecution in accordance with the provisions of
the Criminal Procedure Law. Finally, the long-standing mechanism of the letters and
visits system provides the possibility to voice a complaint. Any party can submit a
written or oral complaint (shangfang) to the Letters and Visitors Offices located in Party
and Government organs as well as in media institutions.33 At this stage, disputes usually
have been reported to the relevant environmental protection agencies and not resulted in
the favoured settlement. This system has therefore to be seen as the last attempt to put
pressure on the state organ and to raise public sympathy to deal with the issue in a satisfactory
manner.

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III.C.ii. National laws and regulations


III.C.ii.a. Framework legislation. The overall framework for Chinas environmental
legislation is the Environmental Protection Law, which was passed as a trial in 1979 and
later amended and enacted into its final form in 1989. It covers a broad spectrum of
environmental issues, ranging from the protection and control of pollutions to the protection
of wildlife, and provides basic principles for both preventive and rehabilitative measures.
36 Lin, above n.19, 558; Leister Ross, China: Environmental Protection, Domestic Policy Trends, Patterns of
Participating Regimes and Compliance with International Norms, 156 China Q (1998), 810.
37 PRC Constitution, Art.9 (The State ensures the rational use of natural resources and protects rare animal and
plants. The appropriation or damage of natural resources by any organization or individual by whatever means is
prohibited); ibid., Art.26 (The State protects and improves the living environment and the ecological environment and prevents and controls pollution and other public hazards).
38 Hong, above n.17, 23; Palmer, above n.29, 793.
39 Alford and Shen, above n.1, 135; Lin, above n.19, 559.

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policy of openness and economic reform adopted by Deng Xiaoping in 1978. In this period,
environmental law and a greater awareness of environmental issues began to develop,
coinciding with Chinas economic growth and with the improvement of peoples standard
of living.36 The most important contribution to this progress came into force in 1978,
when the States responsibility for the protection of the environment was added to the
Constitution.37 This was the first time that China had enacted an environmental protection
provision into basic national law and had regarded environmental protection as an obligation
and duty of the State. After this significant turning point, the way was paved for further
environmental protection legislation. A landmark of environmental law was introduced in
1979 by the enactment of the Environmental Protection Law (EPL) that was issued as
one of the seven codes promulgated by the National Peoples Congress and its Standing
Committee after the total distortion of the legal system in the period of the Cultural Revolution.38 The fact that the Environmental Protection Law was part of the legislation package
that comprised statutes as the civil and criminal code demonstrated the extraordinary attention that was given to environmental protection. Since the early 1980s, a gamut of environmental legislation has been issued, starting with the Marine Environmental Protection Law
in 1982, the Water Pollution Prevention and Control Law and the Forest Law in 1984,
followed by the Grassland Law in 1985 and the Air Pollution Prevention and Control
Law in 1987. In the 1990s, China undertook new efforts to strengthen its environmental
laws and to bring them into closer compliance with the principle of sustainable development
introduced after the 1992 United Nations Conference on Environment and Development.39
The first generation of post-Cultural Revolution laws were revised, as well as new laws on
solid waste, noise pollution and other environmental issues enacted. Newly promulgated
legislation covers areas such as cleaner production measures and radioactive pollution.
In addition, a wide range of local laws in the form of regulations, decisions, orders
and quality standards have been issued at a local level since 1990 which deal with the
management, supervision and procedures to facilitate the policies and enforcement of
national laws.

Beyer, Environmental Law and Policy in China 193

III.C.ii.b. Anti-pollution laws.


Air pollution prevention and control law. According to a World Health Organization air
quality study conducted in 1998, three of the 10 most severely polluted cities are located
in China. Air pollution levels in Chinese cities frequently double the world average;
Beijing has the dubious distinction of competing with Mexico City for the honour of
the worlds most polluted capital.47 Various factors have contributed to this situation,
such as the increasing consumption of fuel triggered by the rapid economic development
and out-of-date technologies. However, the main source of air pollution in China is coal
burning that produces both sulphur dioxide and suspended particulates. Coal is the chief
40 Environmental Protection Law, Art.4.
41 Ibid., Art.7(1) and (2).
42 Ibid., Art.7(3) and (4).
43 Ibid., Arts 9 and 10.
44 Ibid., Art.8.
45 Ibid., Arts 28 and 39(1).
46 Ibid., Arts 35 and 43.
47 Smil, above n.8, 940.

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Its regulatory measures address water, air, solid waste and noise pollution, and establish a
system for environmental management, monitoring, liability and enforcement. These
include general requirements for discharge registration systems, for the levying of fees,
for environmental impact assessments as well as measures for the control and elimination
of pollution supplemented by provisions for legal liability. The Environmental Protection
Law imposes on all units and individuals an obligation to protect the environment and
grants the right to report or file charges against any offender.40 The law also stipulates
the scope of duties of environmental management agencies. The authority to manage
and supervise environmental protection at a national level has been delegated to SEPA,
while local governments environmental protection bureaus have responsibility for environmental management and supervision under their jurisdiction.41 In order to co-ordinate
environmental management, the Environmental Protection Law also assigns responsibility
to the other competent national administrative and local governments departments.42
The law directs the authority to issue national environmental standards to SEPA, whereas
their implementation lies within the competence of sub-national departments. However,
the peoples governments of provinces, autonomous regions and municipalities directly
under the central government are only empowered to establish local quality standards if
no national standard exists, while more stringent discharge standards for pollutants may
be established.43 Units and individuals having made significant contributions to the
protection and improvement of the environment are to receive awards.44 Those discharging
pollutants in excess of prescribed standards shall pay discharge excess fees and are obliged
to eliminate the damage.45 Additionally, fines may be imposed in certain cases and
criminal liability be pursued if the violation leads to human injuries and heavy losses of
property.46

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48 Elisabeth Economy, Chinas Development and the Environment (2003), 2 (www.fas.harvard.edu/ asiactr/
haq/200301/0301a001.htm); The World Bank, Air, Land and Water: Environmental Priorities for a
New Millennium (2001), 77.
49 Air Pollution Prevention and Control Law, Art.15.
50 Ibid., Art.15(1) and (2).
51 Ibid., Arts 12(1) and 14(1).
52 Ibid., Arts 8 and 9.
53 Ibid., Art.32.
54 Ibid., Art.34(2).
55 Ibid., Art.33(2).
56 Ibid., Arts 10 and 28.

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source of energy that provides about two-thirds of Chinas total energy consumption.48 After
the extraordinary frequency and intensity of dust storms in spring 2000 had demonstrated
the urgency of addressing these environmental problems, China reacted by adopting
major amendments to the 1987 Air Pollution Prevention and Control Law, last revised in
1995. Since the former law lacked effective measures in combating air pollution, the law
was essentially rewritten and previously existing sections were substantially amended. The
intend was to stabilize total pollutant emissions at 1995 levels by the year 2010, to
achieve national air quality standards in 34 of 47 key cities and to reduce dust emanating
from construction sites in Beijing by 70 per cent. In contrast to the 1995 amendments
that focused primarily on controlling particular pollutants from coal combustion, the
2000 amendments reflect a shift in the prevention strategy by providing measures for monitoring the total volume of pollutants entering an airshed.49 China had already applied those
total emissions control measures in certain areas, such as in designated acid rain zones. Now,
the amended law provides the legal basis for implementing those measures on a much wider
scale. The new law authorizes the State Council and the provincial-level governments, autonomous regions and directly administered municipalities, with approval of the State Council,
to establish Total Emission Control (TEC) Zones, where all polluters are required to
comply with the prescribed standards.50 Furthermore, the establishment of a national emission fee system on the basis of categories and quantities of atmospheric pollutants and of a
reporting system covering all relevant data marks a major departure from the former law that
had held polluters only liable when emission levels were exceeded.51 Also, market-based
methods and incentives, although unspecified, for clean producing techniques and renewable
energy were stipulated.52 Whereas control measures under the old law focused almost exclusively on industrial enterprises and power plants, the revised law includes specific provisions
for automobiles, vessels, domestic heating and cooking stoves. Vehicles have to meet discharge emission standards and pass annual checks.53 The production marketing and
import of leaded gasoline shall be stopped according to time limits set by the State
Council.54 Provincial-level governments, autonomous regions and directly administered
municipalities may, with approval of the State Council, enact stricter vehicle emission standards.55 Individual coal-heating stoves shall be replaced by central-heating systems, and sand
and dust-control measures adopted by afforestation, urban and rural greening.56 Key cities

Beyer, Environmental Law and Policy in China 195

may designate zones wherein all producing and consuming of high-polluting fuel as coal are
prohibited.57 New and expanding sulphur dioxide-emitting power plants as well as large and
medium-sized enterprises that do not meet prescribed standards for pollution discharges have
to install desulphurizing and dust removal equipment; existing enterprises must adopt
control measures by a timetable to be determined by the State Council.58

57 Ibid., Art.25.
58 Ibid., Art.30(1) and (2).
59 Economy, above n.49, 1; Orts, above n.5, 551.
60 Water Pollution Prevention and Control Law, Art.1.
61 Regulation addressing Water Pollution Prevention and Control Technology (1986); Regulation on Discharge
Licences for Pollutions (1988); Regulation on Supervisory and Administrative Measures Concerning Water Processing Facilities (1988); Regulation on the Prevention and Control of Water Pollution from Paper Mills
(1988); Regulation on Drinking Water Protection Zones (1989).
62 Water Pollution Prevention and Control Law, Art.2; Marine Pollution Prevention and Control Law 1982.
63 Water Pollution Prevention and Control Law, Art.4.
64 Ibid., Arts 6(1) and 7(1).
65 Ibid., Art.16.
66 Ibid., Art.10(1).
67 Ibid., Art.10(1).

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Water pollution prevention and control law. Water pollution is a very serious issue in China
and threatens the health of millions of people. About 80 per cent of Chinas sewage effluent
flows directly into waterways without any prior treatment, about 30 per cent of the nations
rivers are polluted, about 75 per cent of water in urban areas is contaminated and nearly
50 per cent of water sources for Chinas major cities do not meet potable water standards.59
As a response to this situation, the major statutethe 1984 Water Pollution Prevention and
Control Lawwas amended in 1996, aiming to protect and improve water resources for the
purpose of ensuring their effective utilization and safeguarding human health.60 Rules for the
implementation of this law have been passed by the State Council in numerous administrative regulations.61 The law applies to the pollution of water resources of all kinds
except marine water, which is governed by special law.62 The amendments focus primarily
on clarifying the responsibilities of various governmental departments, on introducing stricter non-compliance provisions and on measures for clean technologies. The peoples
governments at various levels have unified supervision and management responsibility over
the prevention and control of water pollution and shall exercise their authority in conjunction with other concerned administration departments.63 SEPA is authorized to determine
standards for water qualities and, in line with the countrys economic and technological
conditions, discharge standards for water pollutants.64 A control system for fixed total quantities of pollutants can be instituted by the peoples governments at or above the provincial
level if discharge standards are not met.65 In order to avoid trans-regional disputes, the law
now provides for an unified basin or region-wide planning approach.66 The protection of
major rivers as designated by the State lies within the main responsibility of SEPA.67
Together with other competent administrative authorities and the concerned peoples

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Solid waste pollution prevention and control law. In response to Chinas increasing generation
of industrial, municipal and hazardous waste, the PRC embarked on a multifaceted waste
management strategy following the UN Conference on Environment and Development in
1992. After having reviewed numerous foreign waste regulations, a law on solid waste was
issued in an effort to adapt these measures to Chinas needs.73 The statutes dealing with
waste are the Solid Waste Pollution Prevention and Control Law enacted in 1995 and the
implementing regulations. The law establishes a broad national framework for the management of industrial, municipal and hazardous waste, aiming to safeguard human health by
means of preventing and controlling solid waste pollution.74 Focusing on the full cycle
of waste management, the law imposes new obligations on those who generate, collect,
store, transport, utilize, dispose of or import solid waste, although full details are subject
to national and local implementation regulations. SEPA has nationwide supervision
and management responsibility over the prevention and control of environmental
pollution caused by solid waste.75 Within their administrative areas, the local EPBs are
68 Ibid., Art.10(2) (4).
69 First-grade protection zones, ibid., Art.20(1)(4).
70 Ibid., Art.14(1).
71 Ibid., Art.15(1).
72 Ibid., Art.19.
73 Ellen R. Spitalnik, 23 China Bus. Rev. (1996), 36.
74 Solid Waste Pollution Prevention and Control Law, Art.1. While the law applies to waste in liquid and gaseous
form stored in containers, it exempts environmental pollution caused by radioactive solid waste, solid waste to
the marine environment, liquid waste discharge into water and gaseous waste released into the atmosphere, all of
which are regulated by other legislation, Arts 2 and 75.
75 Ibid., Art.10(1).

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governments directly under the Central Government, SEPAs task is to draw up plans. Once
approved, such plans serve as fundamental grounds for the prevention and control of water
pollution of other water bodies and have to be incorporated into economic and social development plans.68 The amended Water Pollution Prevention and Control Law further provides
for the creation of surface sources protection zones for domestic and drinking water, where
the discharge of sewage, construction projects, tourism and any activity that may pollute
the water is prohibited.69 In general, the law requires all units that discharge pollutants
directly or indirectly into a water body to register with the local environmental protection
department and to supply this authority with information on the quality and quantity of
the pollutants, on the discharge and treatment facilities, as well as on measures for pollution
prevention.70 A pollutant discharge fee shall be levied and an additional excess fee for exceeding the limits set by the national or local standards.71 Enterprises are obliged to employ clean
production techniques, to reduce the discharge of pollutants and to improve the management
in order to decrease water pollutants. Another major amendment was the introduction of the
central urban sewage treatment system that prescribes the incorporation of protection
measures for urban water sources in urban construction plans, the construction of central
water treatment facilities and the imposition of sewage treatment fees.72

Beyer, Environmental Law and Policy in China 197

Noise pollution prevention and control law. The long-awaited law on Noise Pollution Prevention
and Control was issued in 1996 and filled a significant gap in Chinas environmental statutes. Its
76 Ibid., Art.10(2).
77 Ibid., Art.26.
78 Ibid., Art.27(1).
79 Ibid., Art.31.
80 Ibid., Arts 30 and 32.
81 Ibid., Art.34(2).
82 Ibid., Art.43.
83 Ibid., Art.45.
84 Ibid., Art.49(1).
85 Ibid., Art.35.
86 Ibid., Art.39.
87 Ibid., Art.27(1).
88 Ibid., Art.23.
89 Ibid., Art.24.

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responsible.76 SEPA, in conjunction with other relevant departments under the State
Council, is responsible for developing technology policies as well as for promoting advanced
production techniques and equipments aiming to prevent and control industrial solid waste
pollution.77 The department responsible for economic integration under the State Council is
authorized to issue a catalogue of outdated production techniques and equipments jointly
with other relevant departments.78 The Solid Waste Pollution Prevention and Control
Law establishes a reporting, registration and licensing system for industrial solid and hazardous waste and goes far beyond the mere regulation of waste disposal. The statute requires
industrial units producing solid waste to register with local environment protection authorities and to furnish data of its waste output, flow direction, storage, treatment and other
relevant information to the responsible EPB.79 Each unit is obliged to adopt advanced techniques for the reduction of solid waste and to construct storage or treatment facilities for waste
that cannot be utilized.80 In case of non-compliance, SEPA is authorized to assess pollution
discharge fees.81 It lies within the principal responsibility of SEPA to develop unified criteria
for specifying hazardous waste.82 Reporting and registration obligations are imposed on
hazardous waste generators, transporters and operators of treatment, storage and disposal
facilities.83 Persons engaged in the collection, storage or treatment of hazardous waste
must apply for an operation licence and undergo special training.84 As to municipal solid
waste, all units and individuals are required to dump their household refuse at designated
sites.85 The municipal peoples governments are responsible for building a system of facilities
that collects, removes, stores, transports and treats urban household refuse.86 Appropriate
utilization of municipal waste constitutes a target.87 As a result of numerous cases of
unwanted waste imports into China, the law also addresses the important issue of solid
waste imports and inter-provincial waste transfer. The law establishes administrative
consent procedures for domestic transfers88 and a ban on solid waste that cannot be utilized
as raw material.89

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III.C.ii.c. Natural resources conservation laws. In addition to the basic provisions on natural
resources conservation of the Environmental Protection law, a number of specific laws
dealing with the preservation of nature and natural resources have been promulgated.
90 Noise Pollution Prevention and Control Law, Art.1.
91 Ibid., Art.2(1).
92 Ibid., Art.5.
93 Ibid., Art.12.
94 Ibid., Arts 10(1) and 11.
95 Ibid., Art.16.
96 Ibid., Art.19.
97 Ibid., Arts 24 and 25.
98 Ibid., Art.29.
99 Ibid., Art.32.
100 Ibid., Art.43(2).
101 Ibid., Arts 44(1) and 45(1).
102 Ibid., Art.42.

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objective is to protect and improve the living environment and to safeguard human health by the
prevention and control of noise pollution.90 Different categories of noise fall within the scope of
the law, such as noise from industrial pollution, construction, transportation and social living.91
The law sets out general requirements on noise control in urban planning. The local peoples
governments are mandated with evaluating the impact of noise from regional developments
and construction projects on the surrounding environment. They are responsible for systematically planning and arranging the location of projects so as to prevent or minimize noise pollution.92 Urban planning departments are required to assign reasonable noise prevention
distances and propose planning and design requirements.93 SEPA is authorized to determine
national standards for acoustic environmental quality and, in accordance with the States economic and technological conditions, national noise emission standards.94 Fees shall be levied for
excess emission.95 The local public security bureau may issue exemption permissions in cases of
occasionally strong noise in urban areas and make an announcement to the public.96 Noisecreating industrial enterprises are obliged to indicate their noise levels to the environmental
agencies and to take effective measures to alleviate the impact of noise on the environment.97
Also, construction projects that may produce noise pollution have to be indicated to the responsible environmental protection department of the local peoples government at least 15 days
prior to their coming into operation.98 As regards traffic noise, the Noise Pollution Law prohibits
the manufacturing, selling or importing of automobiles that exceed noise standards.99 Since
social living noise is a relevant issue in urban areas in China, the law also addresses this
problem by obliging any operators or managers of cultural and entertainment centres to take
effective measures in order to keep noise at the boundary from exceeding the limits fixed by standards.100 The use of high-pitch loudspeakers for the purpose of attracting customers and within
noise-sensitive areas is prohibited.101 Commercial enterprises located in the neighbourhood of
noise-sensitive buildings are required to report the necessary data on their emissions and
measures used to prevent and control noise to the environment protection agency.102

Beyer, Environmental Law and Policy in China 199

103 Lan, above n.5, 19.


104 Desertification Prevention and Control Law, Arts 11 and 14.
105 Ibid., Arts 20 and 22.
106 Ibid., Art.6.
107 Ibid., Arts 24 and 33.
108 Ibid., Art.34.
109 Priscilla M. Leung, Evolution of Land Prescription in China, in: C. Wang and X. Zhang (eds), above n.16, 548.
110 The deadly virus is thought to have come from wild civet cats in South Chinas Guangdong Province.

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The leading causes of Chinas biodiversity loss are extensive agriculture, industrialization,
illegal logging and land degradation. About one-third of Chinas farmland has been
exploited from primary forestland and the use of pesticides as well as of chemical fertilizers
has increased significantly. Despite reforestation efforts, Chinas overall amount of forest
cover has decreased continually and grassland ecosystems face serious decline. Approximately one-third of the countrys deserts are the result of human activity and the trend
of desertification is accelerating, especially in Chinas arid and semi-arid north and northwest.103 Deserts are increasing at a rate of 1.8 million hectares a year and sandstorms
caused by land degradation have become a serious problem in China. The major regulatory
regime covering the conservation of soil are the Law on Water and Soil Conservation
dating from 1991 and the Desertification Prevention and Control Law recently enacted
in 2001. In order to control and reverse this development, the new law presents a
mixture of measures issuing from central planning combined with economic incentives
more attuned to Chinas emerging market economy. National and local desertification
prevention and treatment plans shall be drawn up and a national monitoring network
be instituted.104 Farmers and herders located in protected desertified areas shall be resettled
and new cultivations on desert margins should not be permitted.105 More than just stating
the duty to prevent desertification, the law also obliges individuals and units using land to
undertake remediation efforts.106 Technical support and subsidies, although unspecified,
shall be provided.107 The most significant innovative provision is likely to be the authorization of local governments to grand land-use rights for up to 70 years to desertified areas
if the landholder assents to restore the land.108 Since land-use contracts were usually
limited to considerably shorter periods109 at the time at which the new Desertification
Prevention and Control Law was enacted, the introduction of this provision clearly revealed
the strategy to provide more certain property rights as an incentive to promote
environmental protection.
Moreover, species decline is due to habitat loss and land degradation. Although China
ranks second for percentage of nature reserves in the world, no national law on the conservation of nature reserves has been promulgated until now. The Wildlife Protection Law
enacted in 1988 neither contains stipulations on the management of animals habitats
and their suitability for establishing nature reserves, nor does it provide ownership rules
that adapt to current realities. Especially, the outbreak of SARS in 2003 indicated the
need for major amendments, in particular for a ban on eating wild animals.110 However,
a number of regulations have been adopted, providing procedures for the establishment

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and management of nature reserves, including provisions on co-operation between nature


reserve authorities, local governments and residents, on the access to nature reserves and
on penalties.111 Specific laws dealing with the protection of nature resources are the
Forest Law last revised in 1998 and the Grassland Law amended in 2002. The Forest
Law imposes annual cutting quota112 and institutionalizes a permit system for tree
cutting.113 Both laws contain provisions on the sustainable utilization of resources, on protection policies promoting the restoring of vegetation and afforestation, on ownership and
specific use rights, as well as on prohibitions of certain harmful actions.114

III.D. Environmental policies


III.D.i. Prevention first policy
III.D.i.a. Content and legal basis. The prevention first policy obliges the state to provide
preventive measures that effectively control and mitigate negative impacts on natural
resources to a level at which human health is protected and sustainable development is
achieved. The objective of this policy is to integrate environmental protection into national
economic development in order to control and manage the environment. As early as 1972,
the prevention first policy was, although merely as a slogan, mentioned in several
decisions and gradually referred to more frequently in the context of technology

111 Regulation on Nature Reserves (1994); Provisions on the Management of Nature Reserves for Forests and Wild
Animals (1985); Provisions on the Management Nature Resources for Aquatic Animals and Plants (1997);
Provisions on Management of Marine Nature Reserves (1995).
112 Forest Law, Art.8.
113 Forest Law, Art.32.
114 Forest Law, Arts 3, 11 and 38; Grassland Law, Arts 4, 9, 10 and 11.

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III.C.ii.d. Criminal law. Prior to the promulgation of the revised Criminal Law in 1997,
the provisions on criminal liability for environmental pollution were scattered throughout
various environmental statutes. As amended, the Criminal Code provides a more comprehensive regime for offences to environmental resources. Chapter 6 of Chapter VI of the
Criminal Law deals with crimes undermining the protection of environmental resources
and defines the crimes and sanctions imposed on persons being responsible for environmental damage. The law includes provisions that range from the unauthorized import of
solid waste, the release of radioactive and toxic substances into the environment, the violation
of regulations governing aquatic resources, land administration and forestry, including the
destruction of rare trees and illegal logging, to the unauthorized hunting of endangered
wild animals. The most severe punishmentsimprisonment for up to 10 yearsmay be
imposed under Article 339 for the illegal import, storage or processing of solid waste if
major damages to public or private properties, or serious health risks are caused and
under Article 341 for the killing or the trading of endangered species in serious cases.
Additional provisions on criminal liability can be found in several environmental laws,
partly with identical wording and reference to the Criminal Code.

Beyer, Environmental Law and Policy in China 201

improvements and rational utilization of resources.115 Provisions issued by the State


Council on this matter were later implemented in subsequent legislation, particularly in
the Environmental Protection Law116 and in specific pollution prevention laws.117

Treble simultaneity. The principle of Treble Simultaneity or Three Synchronizations has


been a core feature of the Chinese environmental protection system since the last three
decades and was introduced as the main instrument for pollution prevention and control
in 1972. After the implementation of the environmental impact assessment requirement,
the Treble Simultaneity principle was integrated into this process, but remained an

115 H. Wang, above n.4, 195.


116 Environmental Protection Law, Arts 16, 24, 25, 27 and 30.
117 Air Pollution Prevention Law, Art.15; Water Pollution Prevention Law, Art.22.
118 Yan Wang and Richard Morgan, 23 EIAR (2003), 550.
119 Environmental Impact Assessment Law, Arts 7 and 8.
120 Ibid., Art.16.

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III.D.i.b. Implementation.
Environmental impact assessments. One effective instrument for pollution prevention is the
use of environmental impact assessments (EIAs) for the building of new and expanding projects with potential adverse effects on the environment. China introduced the concept of
environmental impact assessments in the 1970s in the form of a national policy which
was later adopted by the Environmental Protection Law and the specific protection and conservation laws. However, as these provisions set out only general requirements on this matter
and particularly lacked implementation measures, a number of administrative regulations
and guidelines had been issued over time.118 In order to unify these highly scattered and
overlapping regulations, a new law on environmental impact assessments came into force
in 2003 that basically reaffirms and broadens the pre-existing provisions. According to the
Law, all programmes and plans on land use and development projects for natural resources
are subject to environmental impact assessments. EIAs should also be conducted on development planning concerning energy, water management, transportation tourism, agriculture
and forestry.119 Principally, such assessments include an analysis and prediction of the projects effects on the environment as well as measures and strategies aiming to mitigate and
prevent negative impacts supported by technical expertise. Based on the extent of the potential environmental impact, assessments of any construction project, expansion or modification are divided into three categories. Detailed environmental impact reports are
required for construction projects that are likely to cause a range of significant adverse
environmental impacts. Projects that may have a limited number of impacts are subject to
an analysis, whereas those just having a negligible impact require no assessment and
simply need to complete a registration form.120 The Management List issued by SEPA supplements these regulations by providing criteria for the predetermination of possible adverse
environmental impacts according to industries, products and activities.

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Cleaner production. The concept of cleaner production has been adopted in order to promote
the sustainable use of natural resources by continuously applying preventive strategies to processes, products and services in order to increase their eco-efficiency and to reduce their risks
to human health and the environment.123 In respect to the production process, cleaner production refers to the efficient use of energy and resources, to the elimination and decrease of
hazardous raw materials as well as to the amount and toxicity of emissions and waste. With
respect to products, cleaner production focuses on the reduction of adverse environmental
impacts throughout their entire lifecycle, from raw material extraction to the ultimate disposal of the product. Various laws include provisions on cleaner production measures. In 2002,
the Cleaner Production Promotion Law was enacted to provide a coherent framework aiming
to encourage cleaner technical development, scientific research and international co-operation
to develop cleaner production mechanisms. The Law obliges any unit and individual being
engaged in the production or provision of services to implement systems for cleaner production. Enterprises in particular are obliged to make use of raw materials which are recycled
and non-hazardous and must adopt adequate prevention and control technologies.124
A guidance catalogue on cleaner production technologies, processes and equipment shall
be released periodically by the economic and trade administrative department of the State
Council. A compilation of industry and region-specific cleaner production guidelines for
the implementation of this policy shall be issued by the relevant administrative departments
of the State Council in co-operation with the provincial peoples governments, autonomous
regions and municipalities.125
Land Planning Rules. Land Planning Rules are used in China to promote sustainable social
and economical developments by co-ordinating environmental issues with the social and
121 Y. Wang and R. Morgan, above n.118, 546.
122 Environmental Protection Law, Art.26(1).
123 H. Wang, above n.4, 196.
124 Cleaner Production Promotion Law, Arts 3 and 19.
125 Ibid., Art.11.

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important component of the Chinese environmental protection policy.121 Basically, this


principle imposes the integration and installation of pollution prevention and control facilities during all stages of the project development, including the phases of design, construction
and operation. No permit shall be given until its prevention and control facilities comply
with the respective standards.122 This refers to every new or modified infrastructure
project, technical improvement project or natural resource development project that may
damage the environment. In detail, the construction entity has to submit the preliminary
design of the facilities for prevention and control of pollution to the local environmental
department for approval. During the construction phase, the builder has to protect the
environment around the construction side from pollution like noise, dust or vibration and
is finally obliged to put prevention and control facilities into operation simultaneously
with the operation of the construction itself.

Beyer, Environmental Law and Policy in China 203

III.D.ii. Environmental liability policy


III.D.ii.a. Content and legal basis. The environmental liability policy or the polluter pays
principle is based on the idea that the polluter shall be responsible for pollution control and
liable for the recovery of any damage or loss. The legal basis of this policy is laid down in the
Environmental Protection Law. Article 19 of the Environmental Protection Law states that
measures must be taken to protect the ecological environment while natural resources are
being developed or utilized. Article 28 of the Environmental Protection Law states expressly
the polluters liability for the elimination and control of the pollution.129 Various Pollution
Prevention and Control Laws provide for discharge fees as monetary compensation and for
an additional compulsory levy on the excessive discharge of pollutants.130
III.D.ii.b. Implementation. According to the polluter pays principle, the discharge of
pollutants shall result in the payment of discharge fees and in additional fees for exceeding
national or local standards. The environmental departments are responsible for levying those
fees, whereas the specific usage of the income derived from this fee shall be stipulated by the
State Council and be appropriated for the prevention and control of pollution.131 The
polluting entity has to register with the competent environmental authority and to report
126 According to the fifth national population consensus in November 2000, rural residents accounted for
63.91 per cent and urban residents for 36.09 per cent (www.cpirc.org.cn/en/e5cendata1.htm).
127 City Planning Law, Art.14.
128 Ibid., Arts 23, 31 and 32.
129 Environmental Protection Law, Art.28.
130 Air Pollution Prevention and Control Law, Arts 12(1) and 14(1); Water Pollution Prevention and Control Law,
Art.15(1).
131 Environmental Protection Law, Art.28(2), Water Pollution Prevention and Control Law, Art.15(1).

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economical needs. Land-use plans focus on the construction and design of cities, towns and
villages as well as on the layout of industries, infrastructure and agriculture. Environmental
protection measures must be incorporated into these plans, demonstrating the integrative
starting point of the prevention first policy. Since almost two-thirds of Chinas population
resides in rural and often remote villages or towns, village and town planning plays a key role
in achieving sustainable social and economical developments.126 In 1993, the State Council
released the Management Regulation of Construction and Planning of Villages and Towns.
It states that the planning shall follow national economic and social development guidelines,
taking into account the local situation, the environment and resources, as well as the historical situation. The regulation aims to protect and improve the economical outline conditions
by means of preventing and controlling pollution, improving the appearance of villages
and towns and their hygiene infrastructure. For instance, the development of greenery and
afforestation is encouraged.127 As a basic principle, construction should only take place on
non-farming land. Relevant provisions for city planning are stipulated by the Environmental
Protection Law and City Planning Law, stating that developments shall undergo detailed
planning as well as strict management and may not deteriorate the environment or affect
its various functions.128

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III.D.iii. Environmental management policy


III.D.iii.a. Content and legal basis. The environmental management policy includes the
supervision, monitoring and enforcement of activities aiming to prevent, mitigate and
eliminate environmental pollution. The area of responsibilities reach from the examination
of documents to in-field investigations and cover the period of time prior to and after the
environmental harmful activity or event has taken place. The legal basis of this policy is
laid down in the Environmental Protection Law as well as in numerous provisions of specific
environmental protection and conservation laws.
III.D.iii.b. Implementation. In comparison to other legal systems that refer to a comprehensive licence and permit system as one of the most important preventive measures of management and supervision, Chinas permit system is still in its developing stage. Although single
laws state such requirements for certain activitiese.g. the City Planning Law for construction projects133, the Forest Law for the cutting of trees134 or the Marine Environmental
Protection Law for the discharge of waste into the sea135neither Chinas Environmental
Protection Law nor Water Pollution and Air Pollution Laws contain provisions on this
matter. However, broadly applied is the pollution emission report and registrations system
that requires facilities to report their pollutants categories, quantities, concentrations as
well as their technical equipment to the local environmental department. In addition,
environmental law delegates the authority to inspect facilities onsite to environmental
departments at various levels.136 Mandatory measures exist to enforce compliance. According to the Rule on Environmental Administration Sanctions,137 the nature of the violation,
the relevant laws and regulations as well as valid evidence have to be stated in an order.
Administrative tools range from the issuing of warnings in cases of lighter violations to the

132 Environmental Protection Law, Art.35(2) and (3).


133 City Planning Law, Art.31.
134 Forest Law, Art.32.
135 Marine Pollution Prevention and Control Law, Art.38.
136 Environmental Protection Law, Art.14.
137 Issued by NEPA in 1992.

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the categories, quantities and density of the pollutants as well as its technical equipment. It
lies within the competence of the environmental departments to examine the submitted data
and to issue the notice of payments. Refusing to report, submitting a false report and failing
to pay may be fined.132 As a remedial measure, after the pollution has occurred, the polluting
entity shall be required to bring pollution and damage under control within a specified time.
The relevant period will be decided for each specific situation and with regard to the difficulties involved in controlling the pollution. The introduction of pollution prevention
and control facilities can be enforced. Failure to conform to the established deadline
results in fines, serious violations or closure. The environmental department has the discretion to decide on the amount of the fine, whereas the decision to shut down lies with the
local government.

Beyer, Environmental Law and Policy in China 205

IV. Evaluation of the legal environmental framework


IV.A. Statutory deficiencies
Considering Chinas short environmental law history, quite a comprehensive set of legislation has been developed. Nevertheless, there is little doubt that the implementation of
environmental law in China has not been as successful as its formulation. Various causes
have contributed to this situation. One important reason is the highly general, often
vague and aspirational language that constitutes a familiar feature of Chinese law. Significant
elements of many major environmental measures seem more akin to policy statements and
propositions of ideals than to laws.138 Typically, actions are encouraged but rarely required
and even where concrete duties are stated, only little guidance is provided on procedures and
specific goals. One crucial factor is the frequent use of the word should ( ying/yinggai )
rather than of the stronger term shall (bixu) or must (dei ). These words are not used
interchangeably, since several laws distinguish between them, suggesting that the different
wording has a specific meaning. For instance, according to Articles 20 and 22 of the
Desertification Prevention and Control Law, farmers and herders located in protected
desertified areas shall be resettled whereas new cultivations on desert margins should not
be permitted.
Numerous environmental laws suffer from vagueness and put forward general, almost
exhortational terms. Even the amended Air Pollution Prevention and Control Law provides,
in Article 19, that enterprises shall give priority to the adoption of clean production techniques and, according to Article 30, enterprises shall gradually adopt measures to control
nitrogen oxide, while the local governments shall redouble their efforts in afforestation,
grass-planting, urban and rural greening and take effective measures to do well the work
pollution and sand control.139 This clearly demonstrates the difficulty of evaluating and
138 Alford and Shen, above n.1, 135.
139 Air Pollution Prevention and Control Law, Art.10.

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suspension or termination of licences and permits if prescribed standards are not met and
include the seizure and transfer of objects, the withdrawal of sites and the mandatory dismantling or shutdown of illegal constructions. In severe cases, the licensee faces a fine and a confiscation of his property. Also, an administrative punishment system has been established
providing measures to respond to violations of environmental laws constituting no criminal
offence. Such measures are detention and re-education, and confiscations of the illegal
income and of the instruments used. Ultimately, economic incentives for achieving environmental protection targets have been introduced. Under this system, heads of local governments and enterprises are held responsible for attaining certain targets. Contracts are signed
that list the environmental protection objectives and indicators for failure and success.
Achievements of targets are rewarded with monetary grants, bonuses and awards, and
generally result in profitable publicity of the well performing bureau or enterprise. Failures
can cause fines and often lead to personal criticism affecting personal careers.

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140 Julia E. Klee and Felicity C. Thomas, 24 China Bus. R (1997), 43; Palmer, above n.29, 800.
141 Environmental Protection Law, Art.6.
142 Ibid., Art.16.
143 Ibid., Art.34.
144 Ibid., Art.24.
145 Christopher B. Prufer and Yang Chen, 22 Ztschrift f. UmweltP. and UmweltR (1999), 130; Leister Ross, The
Next Wave of Environmental Legislation, 21 China Bus. R (1994), 30.

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determining the potential of Chinas environmental statutes to direct specific behaviour. A


significant factor contributing to this situation is the lack of definitions in Chinese environmental laws. Moreover, since most environmental-related disputes are brought to the
peoples courts in the form of civil actions and typically result in a mediated agreement
between the parties, there is virtually no environmental case law to guide the interpretation
of undefined terms.140 As a result of this vagueness, areas of potential overlap and
uncertainty arise. For example, the Environmental Protection Law broadly requires all
units and individuals [...] to protect the environment141 and states that local governments
are responsible for the quality of the environment and shall take measures to improve the
environment.142 Similarly, the Environmental Protection law prohibits units from transferring facilities that cause severe pollution143 and obliges units to adopt effective measures
to prevent and control pollution that harms the environment.144 Generally, these statutory
provisions need to be supplemented by regulations or standards. Although Chinas body of
such measures is improving, in numerous cases, they do not exist or are just as general or even
shorter itself. Typically, they merely duplicate the content of the national law and do not
provide guidance specifically tailored at the particular targets, which leaves disproportionate
interpretative discretion to sub-national officials.
Additionally, numerous provisions are still framed in terms of state plans that hardly adapt
to current realities. Since the first generation of environmental laws were drafted at an early
stage in the reform process, following the period of the Cultural Revolution, one of their
main features are policies reflecting central planning rather than specific regulations. This
is evident particularly with regard to the audience being addressed and to the measures
being employed. For instance, most environmental laws presume that the economy is
solely comprised of two sets of actorsindividuals and enterprisesremaining, at least to
some degree, in state ownership. The current laws simply do not cover the wide range of
corporate and other entities that are part of Chinas contemporary legal system. In fact,
very often, it is not clear whether and how key provisions apply to non-state enterprises.145
Furthermore, core principles of Chinese environmental laws as state economic plans aiming
to direct behaviour are of diminishing relevance nowadays, since state planning has considerably lost its significance and former force. These plans are predominantly measures of
a planned economy which, in its initial sense, does not exist any more.
Ultimately, Chinas environmental legal regime is far from complete. Statutory
deficiencies arise, since Chinas environmental regulatory system still fails to capture important issues. For instance, pre-existing pollution sources have not been addressed until now,
although historical contamination constitutes a major problem in China. Up to the

Beyer, Environmental Law and Policy in China 207

present, no policy has been adopted that requires polluters to restore degraded property and
to recover its pre-degradation status. Neither clean-up standards for contaminated soil have
been issued nor has liability in relation to toxic waste remediation been introduced. Besides,
Chinas licence and permit system is still in its infant stage. Merely single laws require prior
permission for certain activities; neither Chinas Environmental Protection Law nor the
Water and Air Pollution Law contains such provisions. Moreover, Chinas environmental
laws generally give only little guidance on the specific demarcation of responsibilities
amongst government bodies and few detail on the implementation process.

IV.B. Enforcement deficiencies

146 Jonathan Schwartz, The impact of State Capacity on Enforcement of Environmental Policies: The Case of
China, 12 JEDev (2003), 69; Prufer and Chen, ibid., 130.
147 Petra Kolonko, Unbotmaige Provinz, Frankf. Allg. Zeitung (2 February 2005), 6; Palmer, above n.29, 806.
148 Alford and Shen, above n.1, 137.

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Generally, the success or failure of laws depends on how effectively they are enforced,
especially at the local level. However, local governments are often major shareholders of
polluting enterprises creating an inherent conflict of interest.146 Nevertheless, the laws
presume that environmental protection bureaus representing a part of local governments
will successfully co-ordinate with the national body, SEPA. In theory, the Peoples Republic
of China operates as a unitary national state where legislation and directives emanate from
central Beijing to which sub-national units of governments must adhere. In practice,
however, this high degree of administrative cohesion does not exist. The laws fail to anticipate
the possibility that certain government interests might diverge sharply from those of the
environment department and create a major obstacle to strict enforcement of both national
and local environmental legislation. In reality, sub-national administrative departments
rather tend to look to the peoples governments at their own level than to central authorities,
since their funding and enforcement powers rely on local district authorities. The fact that
local governments very often sponsor or own industries themselves and consider environmental regulations to be incompatible with economic growth makes it difficult for environmental protection bureaus to enforce their policy. Although the State Environmental
Protection Agency has formal authority over lower-level agencies, this national agency
does not have much leverage in ensuring that national regulations and standards are enforced
at the local level. It is common practice that environmental issues are treated more as a matter
of policy rather than law and personal relations are often decisive.147 Fees and fines are rarely
determined authoritatively; instead, they are often negotiated and fall far below the cost of
damage that the harmful activity has caused, as well as below expenses for pollution
control facilities. The money derived from fees are made available to the polluters in the
form of grants and credits nominally for investments in control facilities; however, no adequate supervisory mechanism exists.148 This undercuts any incentive for firms to invest in
preventive measures. Moreover, enterprises appear to view these fees as entitlements for
their unlawful acting, whether or not they have improved their pollution control equipment

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IV.C. Public participation


Ultimately, any law lacks teeth unless public involvement fostered by education and media
coverage promotes and accelerates the implementation process as an external factor.
However, in contemporary China, the scope of public participation in environmental protection and for independent political activism is limited. The Environmental Protection Law
frames citizen participation principally in terms of a right to report and file charges
against units or individuals that cause damage to the environment.150 Obviously, the
role of citizens favoured by the law is that of reporters and controllers who refrain from
any initiative that could potentially interfere with governmental policy. No doubt,
Chinas authorities are aware that citizen participation may provide a major impetus for
broader systemic reform. Involvements of NGOs traditionally have been restricted in
China and even today, they are deemed to harbour dissidents and threaten the authority
of the state. The first NGOs appeared in China in 1994.151 Current regulations require
any citizen group to be sponsored by and to be accountable to a government or party
work unit. Only one group with a particular focus may register at any administration level
149 Schwartz, above n.146, 69.
150 Environmental Protection Law, Art.6.
151 Schwartz, above n.146, 71.

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or intend to do so. Also, the local influence on courts is considerable and not limited to
financial matters. Besides the fact that court-operating expenses are funded by local district
authorities, local citizens also join the judge as peoples assessors in hearings and local
party officials generally have a significant impact on the jurisprudence and career
advancements.
Furthermore, effective implementation is undermined by technical and organizational
shortcomings. For instance, under the Solid Waste Pollution Prevention and Control
Law, all enterprises are responsible for disposing of their own industrial solid waste.
However, as adequate waste disposal, treatment or incineration facilities still need to be
built in China, generators of hazardous waste are left uncertain with respect to compliance
options. Very often, environmental standards are compromised by Chinas economic and
technological development. The organizational weakness of the environmental protection
organs is due to their lack of staff, financial resources and technical expertise.149 Moreover,
in some areas, authorities overlap, whereas in other areas, environmental agencies lack
authority. Especially in cases of overlapping competences, hardly any measures for
co-operation processes exist that could modulate deviating enforcement policies. Particularly,
the concept of unified management and supervision that, according to the law, shall be
conducted by SEPA is not clearly defined. SEPA itself is poorly co-ordinated with other
administrative agencies and with its subordinate environment protection agencies. As a
result, SEPA has little information on the developments on the local level and therefore
little ability to ensure that national laws are strictly enforced. Consequently, the success in
environmental protection work depends on local environmental enforcement officials.

Beyer, Environmental Law and Policy in China 209

and may not operate outside the place of its registration.152 Neither a transparent registration
system nor a framework for foreign NGOs exists. Nonetheless, China is gradually perceiving
NGOs as an additional factor influencing the public and admits them to play a more active
role. The number of NGOs is growing and mass media have increasingly addressed environmentally related issues. Local EPBs prepare television and radio information programmes
that air daily and conduct activities ranging from the development of curricula for education
from kindergarten through to university, holding seminars for factory managers to projects
such as tree planting or garbage collection.153 With the increasing income and living standards, as well as with the emergence of middle-class society, public awareness of environmental issues has already increased and this public impact will very likely continue to grow.

A booming economic expansion has transformed the Peoples Republic of China over the
past two decades. Chinas enormous economic growth has elevated China into the ranks
of the worlds economic and political powers and sets the country on course to become a
global superpower. This advance has undoubtedly improved peoples living standards,
although significant regional differences have arisen and social disparities are growing.
Chinas remarkable development has had its costs, particularly to the natural environment.
The country does not only face environmental problems, such as soil erosion, deforestation
and desertification typically associated with a developing and overpopulated agricultural
society, but also those of an industrialized country having to deal with a welter of pollution
and resource exhaustion. Surprisingly, China has quite a comprehensive set of environmental
legislation. Considering the countrys short environmental law history, respectable achievements have been made in a short period of time. Nevertheless, Chinas law regime has not
been able to control the further deterioration of the environment. Actually, environmental
laws suffer from the same infirmities and enforcement problems that characterize contemporary Chinese law in general. One result of legislation in the last years is a proliferation of overlapping and contradictory laws and regulations administered by agencies with varying
commitments to and experiences with formal legal processes. This complicates law enforcement, particularly when environmental issues are concerned, that are often in tension with
Chinas economic development. The vague statutory language of laws that still has significant
imprints from socialist ideas hardly adapts to current realities. Statutory deficiencies combined with local protectionism, personnel and technical shortcomings, week courts and traditional restricted public participation capabilities are major obstacles to the implementation
process. Chinas environmental protection regime is a system that rather seeks to secure compliance by punishment as opposed to preventive incentives and in which party and local
interests all too often interfere into the functioning of the regulatory regime. However,
the inherent problem of Chinas environmental legal system is the wide discretion local
agencies have in addressing environmental issues. In fact, local governments have gained
152 Orts, above n.5, 562.
153 Schwartz, above n.146, 74.

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IV.D. Conclusion

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considerable administrative and fiscal autonomy from the central government. While achieving more autonomy, local governments have to cope more and more with hard budgetary
restrictions. They are responsible for generating most of their own revenue and balancing
their own budget. Such a system generates considerable pressure at the local level to
compete in attracting and promoting economy-building companies. Local governments
very often sponsor or own industries themselves and consider environmental regulations to
be incompatible with economic growth. Since environmental protection bureaus obtain
their funding from sub-national governments of which they are part, the enforcement of
environmental policies faces significant financial constraints and is frequently undermined
by economic pressure. Although the State Environmental Protection Agency has formal
authority over lower-level agencies, this national agency does not have much leverage in
ensuring that national regulations and standards are strictly enforced at the local level.
Besides, numerous national pollution standards are so lenient that they hardly have an
effect. Unless local governments are motivated to enforce environmental policies, economic
growth will, due to the existing competitive pressure, be given priority at the expense of
environmental protection. In general, a decentralized administrative system is not antithetical
to effective environmental management. On the contrary, it enables local governments to
introduce environmental policies according to the particular circumstances. However,
unless a high level of environmental consciousness is developed among local residents and
effective means provided for pressuring local governments to integrate environmental policies
into their development efforts, little more will be achieved than just enlarging Chinas existing and already proliferating body of statues. Whatever measures are pursued, they need to be
adapted to the specific challenges deriving from Chinas contemporary political, economic
and social context. The key factorthe interest of local governments to focus almost exclusively on continued economic growthneeds to be addressed. This calls for regional
approaches that provide financial support to poorer regions in order to cut across the existing
sub-national political boundaries. Local governments should be evaluated not only on how
their economy performs, but also on how successfully they deal with environmental challenges. Further measures will include clarifying institutional responsibilities, increasing the
precision of existing laws, adjusting fees and fines closer to the actual damage caused by
the harmful activity, strengthening the personnel and technical capacities of Chinas
grossly understaffed and under-funded environmental administration departments, as well
as improving environmental participation and education. Particularly, NGOs and the international community play a crucial role in terms of policy advice and in providing expertise
and financial resources.
Realizing the dynamic economic development and the evolving political system, Chinas
environmental future is difficult to determine. To the extend that Chinas leaders perceive
the interconnection between economic growth and environment and see stabile economic
advance as depending on sustainable development, the more likely they will integrate environmental protection policies into the nations long-term economic efforts. Optimally, Chinas
accelerated growth will involve greater investment in national and local environmental protection. This greater wealth in tandem with an increasing level of education and public

Beyer, Environmental Law and Policy in China 211

154 PRC Constitution, 2004 amendments, Art.13.

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participation could contribute to the formation of a green movement that promotes resources
saving and recycling measures. In addition, Chinas growing integration into the international
community, in particular through the membership in the WTO and environmental aid from
global organizations, could support the countrys sustainable development. Environmental
progressive cities such as Beijing, triggered by the Olympics in 2008, could become models
for other parts of China. Important political decisions towards more certain individual
rights that are indispensable for effective environmental protection have recently been made
by incorporating the guarantee of private property into the constitution.154 However, there
also is the possibility that these reforms initiated by the economic and social development
will not be reflected in improved environmental conditions throughout China. The heterogeneous management of local environmental protection policies could rigidify and exacerbate
the common practice that only the wealthiest cities with environmentally inclined mayors
invest in the environment. Adding to this picture the continued population growth, an
increasing number of motor vehicles and industrial and household waste, a further deterioration in Chinas environmental situation seems very likely. Without the necessary
reinforcement from Beijing and a growing private influence from NGOs that facilitate free
public discussion, this scenario does pose a realistic presumption. Whatever path China
will follow, its environmental policy will without doubt have a significant impact on
global scale. Capacity building in state and non-state sectors involved in environmental
protection and economic development will definitely be indispensable. Nevertheless, regardless of what efforts are made, unless adequate regulatory measures exist and are enforced,
environmental law in China will continue to play an uncertain and ambiguous role.