Climate justice: China’s ‘advanced’ new environmental law

POLLY BOTSFORD

A little over a year ago, China’s Minister of Environmental Protection, Chen Jining, publicly declared that the country needed environmental laws with ‘iron teeth’.

These fine words came as the country introduced its new Environmental Protection Law, brought into force on 1 January 2015. Since its introduction, the relevant ministry in China has imposed daily fines in over 400 environmental cases and has ordered operations to be restricted or stopped in over 1,500 cases.

The first case brought by an environmental non-governmental organisation (NGO) under the new law, widely reported in China, resulted in four defendants being ordered to carry out ecological restoration on a site the court found them to have damaged. As Roger Martella, a partner at Sidley Austin’s Washington DC office, and Vice-Chair of the IBA’s Climate Change Justice and Human Rights Task Force, concludes: ‘It’s a step in the right direction. They have really shifted the framework here.’

China’s Environmental Protection Law contains provisions to increase transparency and increase liabilities both for polluters and for government officials that fail to honour certain environmental obligations. It also tackles issues that have been core to the effectiveness of environmental laws internationally: how to make sure laws are implemented and enforced.

According to James Thornton, Chief Executive of UK-based public interest environmental law group, ClientEarth, some of the provisions of the law are ‘better than we have in Europe’. For instance, the law gives ‘standing’ to certain NGOs to bring environmental cases directly against polluters, something that’s not allowed in the UK (they can only be brought directly if a polluter commits a criminal offence or breaches a private law).

At the European Union level, current decisions in the European Court of Justice make it extremely difficult for NGOs to bring cases. There are estimated to be around five hundred environmental NGOs in China which can now access the Chinese courts in this way. As Thornton puts it, referencing President Xi’s battle cry for the environment in the first year of his regime: ‘Chinese citizens are being enlisted into the “war on pollution”.’

The legislation confronts some particularly Chinese issues that, to date, have hindered ‘iron teeth’ responses to environmental degradation (apart from the necessary political will, of course).

For instance, in order to understand the cause and effect of pollution, data is needed on levels of pollution and the environmental impact of projects, existing and proposed.

Also, the public needs to have access to that data – this law introduces that. As Martella explains: 'Transparency [of data] is key to success in environmental cases. This is information which most of the world now has access to, but not so in China. There is now a reporting obligation to the general public and which can ask for certain information; this is completely new in China.’

Critical to the question of enforcement is an understanding of where, in China, the power to enforce really lies – and it is in the localities. The Ministry of Environmental Protection in Beijing has far less impact than the local environment bureaux spread across China’s many regions.

This is unlike the US, for example, where the central Environmental Protection Agency is much more active – it has about ten times the staff of its Chinese counterpart. It is in the local provinces that crucial decisions in China are made, where influence is felt, and where pressure is exerted.

For this reason, at the same time as introducing the new law, the Chinese authorities have piloted a programme which gives increased powers to local prosecution departments to encourage investigations and public interest claims. According to official statistics, out of 500 investigations under the pilot in its first six months, over 300 related to the environment.

The new law is a response to the parlous state of China’s natural environment which has become an international embarrassment and a domestic menace for its rulers.

PM2.5 ratings, which measure the level of pollution in the air, have become a daily obsession with urban Chinese, particularly in north east China which has many coal-fired power stations. There have been street protests at what has been termed the ‘airpocalypse’, as well as continuous media coverage of water pollution and the health impacts on the next generation.

The question is whether this legislative response is a symbolic shift only: if the law itself is what we might call ‘progressive’, there is scepticism about whether or not it will really challenge behaviours.

Caroline Berube is managing partner at HJM Asia Law & Co and Co-Chair of the IBA’s Asia Pacific Regional Forum. She is upbeat and says: ‘The law has already made a significant impact on daily life. For example, some polluters have been punished or requested to correct their illegal actions.’

But, she warns, much will depend on the impact at the local level where the all too familiar tension between economic development and environmental protection is at its most stark.

She adds: ‘If economic growth slows, will local governments put pressure on the local environment bureau to relax on environmental protection?’

It may be that the Environmental Protection Law is a battle that has been won but that President Xi’s ‘war on pollution’ could still be lost.