Saturday, July 23, 2011

The Chinese environmental laws.

The Chinese environmental laws borrowed heavily from a number of international sources and resembles the US environmental laws in parts. China enacted its first Environmental Protection Laws in 1979 and reenacted the laws in 1989. There are 47 provisions all together, with limited details to each provision making interpretations expansive for the interests of the State.

This may be what Charles McElwee characterized as “uniquely Chinese;” the application of these laws are hidden but at the discretion of the State. It is unique in the sense it belong to a one party system; the fundamental issue of information, interpretation, and application of the law, however, is universal – the U.S. environmental laws are frequently battled-over and swing left to right depending on who sits in the White House.

Like the U.S. environmental law context, the Chinese Environmental Protection Laws gives rise to a regulatory structure to regulate discharge. Administrative enforcement is based on performance standards for water, air, wastes, and noise, each governed by separate laws and each against its own set of ambient standards.

Remedies include administrative sanctions, but I’ve been told sanctions are rarely applied and generally result in nothing more than a slap on the wrist with order to comply within some negotiated time. I figured the deals were always struck at an expensive feast with government officials drunk and fattened with steamed pork-belly and cash in red envelopes. There were also fewer regulations in the laws early inception for solid and hazardous wastes due to lack of viable plans for disposal.

Regulating discharge has proven effective in the U.S. for reducing pollutant loads. But McElwee pointed out given China’s rapid development, new facilities will continue to get permits to discharge outpacing the enforcement of existing discharge points to reduce loads. Total load will increase. IN response, China recently introduced the concept of “total load,” (“排放总量”), into its regulations to regulate some of the major categories of pollutants.

China also focused on Sustainability in its State’s agenda and is beginning to draw international experiences to its development. The State shifted their focus of regulating end-of-the-pipe discharges to halting the creation of new point discharges. The Clean Production Law and Circular Economy Law were created to enforce efficiency and reducing impact. This is an interesting way of injecting funding into innovation, almost bureaucracy proof.

“Pilot projects have been initiated to test market-based variations on the traditional command-and-control models. Experimental sulphur-dioxide trading programmes have been set up in some places, primarily involving power plants that are required to install emissions-monitoring devices sophisticated enough to support the creation of a trading scheme. Environmental exchanges have been established in Beijing, Shanghai, Tianjin and elsewhere in anticipation of the day when large regional or national markets are created by a cap-and-trade system on conventional pollutants or carbon emissions.”

- Charles McElwee, Shaping China’s green laws

The major difference between the Chinese environmental laws and the U.S. legislations is that the Chinese see their laws as a system with certain guiding principles, “境法规和政策,” not as individual national laws such as the Clean Air Act, or the Clean Water Act.

Chinese environmental laws follows principles in the likes of “polluter pays” (“污染者付费原则”) and “management rules” (“管理规则”). These principles also focus on synergy, such as the “三同时,” “three simultaneousness,” developing synergy between design, construction, and operations. My venture is to guess this came from the core beliefs of interconnectedness of things in Chinese philosophy.

These principles emerged from national conferences in 1973, 1983, and 1989. All of the principles were incorporated into the 1989 version of the Chinese Environmental Protection Law with additional adoptions. The laws and policies may look good on paper, but in practice it required a lot of temporary fixes. This shows China still lacks the experiences necessary in implementing a comprehensive strategy and their principles must be tested with time. That experience will come, and one day China may lead the world in expertise in the industry; if China can yield to pride and amend some of their principles in the interests of its people, our planet, and economic progress.

(You can read Professor McElwee's original blog post about the unique Chinese environmental laws in Chinese here.)

Charles McElwee is an adjunct professor of law at Shanghai Jiaotong University and programme officer for climate policy at ClimateWorks Foundation. He is the author of Environmental Law in China: Mitigating Risks and Ensuring Compliance.

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