When changes to China’s environmental law saw the light of day last year the resulting din was so loud it was felt even in the National People’s Congress.
China’s oldest non-governmental organization focused on the environment, Friends of Nature, criticized the new version in an open letter to the congress for granting the right to sue in the public interest over environmental matters solely to the quasi-governmental All China Environmental Federation. Lawyers and NGOs said the limitation would be a step back for environmental protection in China, and called on the NPC to shelve the amendments. Eventually it did, stalling other much-needed changes.
More recent developments concerning environmental regulations and their enforcement are more heartening, and promise to yield at least some improvements over the last decade’s ever-deeper ecological nadirs. While many old obstacles remain, the central government looks to be gearing up for a new approach to the grave pollution problems that have stoked discontent among the populace, such as poisoned ground soil throughout much of the country and recurring plagues of carcinogenic haze.
The most notable change this year is the long-hoped-for revision to the country’s 1989 Environmental Protection Law. The revisions put more firepower in the hands of the Ministry of Environmental Protection, whose regulatory weapons cache could previously be ranked on par with a couple of half-filled toy water guns. When the new regulations go into effect in January 2015, the ministry will be empowered to hit polluting firms with uncapped daily fees until they cease their illegal behavior; if they refuse, the ministry can seize violators’ assets, and even detain them for up to 15 days. The revisions also acknowledge the public’s right to environmental monitoring data – something government officials had long fought to keep hidden because of persistently negative readings.
Significantly, the All China Environmental Federation’s erstwhile monopoly on litigation is thankfully absent. Not just anyone can take polluters to court, though: Only registered provincial and municipal NGOs with the proper bona fides – including five years’ experience in the field – will be allowed to sue in the public interest. Yet another limitation may have accidentally helped foster the creation of many such qualified plaintiffs: After Friends of Nature was founded in 1994 a regulation forbidding NGOs from officially establishing branch offices prompted it and similar groups to help with the creation of separate, local NGOs throughout the country. Legal action could now have a much wider reach.
These legislative changes were underscored by the Supreme People’s Court’s recent creation of a special tribunal for environmental and resources cases. Over 130 local environmental courts have been established in China since the first was created in Guizhou in 2007. The new tribunal will provide guidance to normal courts for cases lodged locally related to pollution, mineral resources and ecological damage, and will draft judicial interpretations on environmental protection laws – presumably including the latest revisions. Local environmental courts will also be able to have jurisdiction on cases that cross administrative boundaries; so if a factory in one town causes pollution in a town further downstream it will have to face legal charges even if the court in the town where it is based doesn’t pursue the case to try and minimize negative economic effects, a common issue.
The tribunal’s creation also came just before announcement of a slew of judicial reforms that have sounded a hopeful note among observers of China’s courts. The Supreme Court’s latest five-year plan is meant to better establish lower courts’ judicial independence from local governments through measures like stripping local officials of the right to appoint figures of justice.
Ideally this would close the backdoors through which major polluters often influence the courts charged with their prosecution. However, implementation of these revisions and reforms will likely vary between regions, with the clout and cash of local well-connected taxpaying enterprises still trumping environmental concerns about their behavior, even with environmental conditions set to be factored into local cadres’ performance evaluations.
Abd not every part of the Chinese countryside can expect to get better protection. Conflicts over the content of reforms to conservation laws have stalled revisions to the now quarter-century-old regulations. Xie Yan, conservationist and associate research professor at the Chinese Academy of Sciences, says new reforms are necessary to protect the country’s wildlife. The current conservation law promotes both conservation and the use of natural resources. In modern China, where high demand for the plants and animals used in regional cuisines and traditional medicine has decimated many species’ populations even in ostensibly protected nature sanctuaries, “you don’t really need a law to promote utilization of wildlife,” Xie told China Economic Review.
Reforms here have hit two main snags: First, whether to encourage commercial farming of profitable species in hopes of decreasing pressure on their respective wild populations; second, how exactly to develop a protected species list. The latter is vital because endangered species aren’t automatically accorded official protection. Instead they must be granted special status by the government, and the popularity of some among the comestibles and medical industries has long kept them off the protected species list. Xie and others are advocating for an independent authority to make such calls.
Those reforms may still be years in the making, but while prior experience may caution against optimism, recent shake-ups like those described above should temper the cynicism typically brought to bear on ecological issues in China. Developments on the ground will likely be gradual, perhaps even painfully slow. But as in natural selection, incremental change can prove profoundly far-reaching. ♦
Author: Hudson Lockett (@KangHexin)
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