China to Give "Green" Legislation More Teeth

In recent years, Chinese authorities have waged a series of “green storms”—harsh crackdown campaigns against polluters—to check the nation’s worsening environmental deterioration, while also promoting a “green credit” system to deny polluting industries access to bank loans. Now, the nation is seeking to further improve its environmental and ecological situation through the adoption of more biting green legislation.

Since 1979, China’s national legislature has enacted 26 laws focusing on or related to environmental protection, according to Mao Rubai, chairman of the Environment and Resources Protection Committee of the National People’s Congress. Of these, 11 have been adopted in the past seven years, since 2000. Backed by more than 2,000 regulations and decrees, these laws have established a legal framework for China’s green measures aimed at sustainable development.

But laws without teeth can hardly bite, as China’s environmental authorities have increasingly come to realize. Time and again, they have felt impotent in fighting serious violations of environmental laws, as economic gains get the better hand on environmental protection. As Zhou Shengxian, director of the State Environmental Protection Administration (SEPA), puts it, the nation’s environmental laws and regulations “are handicapped by some major soft ribs.”

According to Zhou, current Chinese laws on environmental protection are replete with policy statements, but remain relatively weak in provisions for the effective punishment of violators. In many cases, factories caught polluting the local environment are often under-fined rather than held fully responsible for the damage done. It is typically easier for them to pay the fine than to take steps to adopt effective pollution control measures, which can cost dozens of times more than the simple penalty.

Because the agencies responsible for environmental protection are typically part of local government bodies, they lack the independence and authority to perform their duties. The already-soft laws are made even weaker when local governments and officials act as umbrellas for industries that contaminate the environment but also contribute to local revenue. This relationship, along with the lack of oversight on law enforcement, has left environmental authorities in an awkward situation: despite all the “green storms” they have launched since 2004, environmental violations remain rampant.

As SEPA deputy director Pan Yue has complained, China has a variety of laws for the protection of the environment and natural resources, but few of them can serve as powerful weapons in the battle against pollution and ecological deterioration. According to a July report from the agency, 110 out of 126 industrial parks that were adjacent to seriously polluted rivers and lakes—or more than 87 percent of the total—had been approved for construction without the required environmental impact assessment (EIA). In other words, their operation was in fact illegal.

These findings prompted SEPA to suspend approval of EIAs on all industrial projects—with the exception of projects involving pollution control and recycling and reuse—in the basins of four major rivers where environmental violations are rampant: the Hai, Huai, and Yellow Rivers and the Anhui section of the Yangtze. Pan admits, however, that this suspension is the harshest measure that the top environmental watchdog is able to pursue under the current legal system. As a result, the “green storms”—the ironfisted administrative measures initiated by the administration three years ago—have now reached an impasse, Pan told the media in July. “We have now touched the glass ceiling of our power authorized by current laws, but the environmental problems we are facing are far beyond our reach.”

Pan is appealing to China’s legislature to revise the country’s Environmental Protection Law—its “green constitution.” The law, first enacted in 1979 and revised in 1989, heralded the country’s green legislation, which occurred almost simultaneously with China’s economic-reform drive. But three decades later, the legislation lags far behind the country’s rapid economic growth, which has landed China in the position of the world’s fourth largest economy. At the same time, this growth has left a legacy of environmental havoc as a result of the negligence of environmental protection.

Pan hopes that revising the law will help to clarify the duties of local governments and agencies authorized to protect the environment, holding them responsible for environmental protection and holding them accountable for abusing their power to interfere with environmental law enforcement. And he is not alone in noticing the limitations of China’s environmental laws and urging for the revision of the inadequate green constitution. At the previous three annual sessions of National People’s Congress, China’s top legislature received a total 35 bills from more than 400 lawmakers requesting revision of the law, accounting for almost half of all the proposals on environmental legislation.

According to Zhou Ke, a law professor with Beijing-based Renmin University of China, the country’s environmental legislation is centered on the prevention of pollution rather than on overall protection of natural resources. Meanwhile, the administrative power of the nation’s environmental authorities is limited to pollution prevention. Thus, the protection of natural resources is left in the hands of other administrative departments, which also typically manage specific economic sectors whose primary mission is to exploit resources.

In the case of water resources, the Ministry of Water Resources is responsible for both the protection of China’s rivers as well the exploitation of its water resources, such as hydropower projects. Such a division of liabilities in law and administration has tied the hands of environmental authorities in an era when environmental and ecological protection face ever-increasing challenges as the country’s economic growth is driven by high energy consumption and pollutant discharge.

Zhou also believes that China needs to reset the tenor in its environmental legislation. He notes that the guiding principle in the current Environmental Protection Law lists economic growth and environmental protection in parallel, effectively weakening the law’s power as a uniquely environment law and causing ambiguity when economic growth and environmental protection are in conflict. Even worse, economic growth is in practice always prioritized over environmental protection, despite the verbal principle of balance.

Such a concept may be inevitable in the early stages of development as a country wishes to seek economic advancement without being saddled by green concerns, but it has obvious harm to environment protection, according to Professor Zhou. He says having such a principle written into the Environmental Protection Law no longer suits the current social and economic situation in China, and that it is time to update the basic law through green legislation that better serves the country’s drive to build an all-around better-off society.

To date, the National People’s Congress has not given a timetable for the revision. But at least one thing is clear: fortifying China’s environment protection with legislation has become an unavoidable choice for the country, which has pledged to create a resource-saving and environmentally friendly society under the rule of law.

Wang Jiaquan is a senior journalist with Xinhua News Agency in Beijing. This article was coordinated by the Beijing-based Global Environmental Institute. Outside contributions to China Watch reflect the views of the author and are not necessarily the views of the Worldwatch Institute.