11 The State and Environmental Pollution
11 The State and Environmental Pollution
- Daniel K. Gardner
Has the Chinese Government Been Responsive to the Challenges Posed by Pollution?
Premier Li Keqiang’s 2014 declaration of “war on pollution” was meant to signal to the Chinese people that Beijing recognizes the full scope of the country’s pollution crisis as well as the public’s expectation that it is the government’s responsibility to address it. The motives for Beijing’s concern are many: the consequences of air, water, and soil pollution on public health are severe; the economic costs of pollution, as a percentage of the GDP, are steep; and public displeasure with pollution and its effects—reflected especially in street protests—is a threat to the country’s social stability as well as the Communist Party’s legitimacy.
The government’s responsiveness is reflected not only in Li’s verbal declaration of war but also in the concrete steps it has taken. For instance:
Since 2013 it has committed more than $600 billion to air and water “action plans.”
It has been monitoring and publicizing air quality hourly throughout the country and making data collected by environmental bureaus available to the public and organizations like the Institute of Public and Environmental Affairs.
p. 166↵It has been conscientiously updating environmental legislation and actively introducing new legislation intended to promote fuller public participation in environmental matters, to strengthen enforcement of environmental regulations, and to hold officials more strictly accountable for protection of the environment.
It has made China into the world’s largest investor in renewable energy.
It has announced that by 2017 it will implement a nationwide carbon trade policy and by 2020 will place a nationwide cap on coal consumption.
This is by no means to suggest that Beijing has been altogether successful in addressing the country’s pollution crisis, but I would like to counter the impression held by too many in the West, and especially in the United States, that authorities in China care only about economic development, no matter the cost to the environment. This impression is outdated.
While it is only in recent years that the state’s concern with environmental protection has truly deepened, state concern actually goes back a number of decades. What follows is a selective chronology of events that reflect the state’s evolving interest in the environment:1
1972: Premier Zhou Enlai sends a Chinese delegation to the United Nations Conference on Human Environment in Stockholm. It is said that delegates return home with a better awareness of China’s growing environmental problems.
1979: The Standing Committee of the National People’s Congress issues the “Environmental Protection Law (Trial Implementation),” outlining for the first time the principles of environmental protection.
1988: As a result of efforts by Qu Geping, a delegate at the 1972 Stockholm conference and a “founding father” of China’s environmentalism, the National Environmental p. 167↵Protection Agency (NEPA) becomes independent of the Ministry of Urban and Rural Construction and becomes a vice-ministerial agency under the State Council.
1989: The “trial” version of the Environmental Protection Law of 1979 is made permanent.
1994: The Friends of Nature becomes a legally registered NGO.
1998: The National Environmental Protection Agency is raised from a vice-ministerial agency to a full ministerial agency—the State Environmental Protection Agency (SEPA).
2002: The Standing Committee of the National People’s Congress promulgates the Environmental Impact Assessment Law requiring that any new construction undergo an environmental impact review. It becomes effective on September 1, 2003.
2008: The State Environmental Protection Agency is raised to a cabinet-level ministry, the Ministry of Environmental Protection, and thereby becomes a member of the State Council, the highest executive organ in the country.
What Plans Has the State Proposed for Clearing the Country’s Air?
Li Keqiang’s “war on pollution” did not explicitly target air any more than water or soil, but it is on air that much of the state’s attention has been focused. Attention to water and, especially, soil pollution has lagged by comparison. No doubt, the “airpocalypse” of 2013 did much to move air to center stage; its blanketing descent on Beijing and much of northern China was impossible to ignore. So, too, were the results of prominent international studies quantifying the effects of polluted air on the lives of Chinese people.
By September 2013 China’s State Council had issued the “Air Pollution Prevention and Control Action Plan,” allocating $277 billion in government funding to it.2 The “Action Plan” set three air-quality targets, to be reached by p. 168↵2017: (1) a reduction in the levels of PM10 in all cities above the prefectural level by at least 10% from 2012 levels; (2) a reduction of the finer, more hazardous particulate matter, PM2.5, in the Beijing–Tianjin–Hebei area (also called Jingjinji) by 25%, the Yangtze River Delta by 20%, and the Pearl River Delta by 15%, from their 2012 levels; and (3) a reduction in the annual concentration of PM2.5 in Beijing to 60 μg/m3.
To achieve these air-quality targets, the 2013 “Air Action Plan” proposed a number of specific measures:
Reducing the percentage of coal in the country’s total energy mix from 67% in 2012 to less than 65%
Banning new coal-fired power plants in the three key regions (Jingjinji, Yangtze River Delta, Pearl River Delta)
Increasing the percentage of non-fossil energy sources to 13% from 9.1% in 2012
Eliminating aging, high-polluting vehicles from the country’s roads
These measures reflect what has become for the state the three major pathways for achieving clean air: reducing coal consumption, developing non-fossil fuel energy, and reducing vehicle emissions. Laws and policies issued since the “Action Plan” (e.g., the revised Environmental Protection Law of 2015, the Intended Nationally Determined Contributions submitted in 2015 to the UN, the 2016 Air Pollution Prevention and Control Law, the 13th Five-Year Plan 2016–2020, and a host of official reports) have put forward a range of steps and policies intended to promote each of these pathways.
Steps and policies proposed by the state since 2013 for reducing coal consumption and emissions and developing clean energy are as follows:
Improving energy efficiency by capping energy consumption at 5 billion tons of coal equivalent by 2020, p. 169reducing energy intensity (energy consumption per unit of GDP) from 2015 levels by 15% by 2020, and reducing carbon intensity (carbon emissions per unit of GDP) from 2015 levels by 18% by 2020
Reducing coal consumption in Beijing from 23 million tons in 2013 to 10 million tons by 2017, closing Beijing’s major coal-fired power plants and replacing them with gas-fired power plants, shutting down 50,000 small, inefficient coal-fired furnaces throughout the country, and banning the construction of new coal power plants until 2018 at least
Setting up seven trial regional pilot carbon emissions-trading programs in anticipation of a nationwide carbon emissions-trading program by 2017
Reaching peak CO2 emissions no later than 2030
Cutting the country’s steel production capacity by 100 to 150 million tons in order to lower carbon emissions
Increasing the percentage of non-fossil fuels in the country’s total primary energy mix to 15% by 2020 and 20% by 2030
Increasing forest cover by 50 to 100 million hectares (two to four times the size of the United Kingdom), creating an additional 1-gigaton carbon sink
There are now roughly 250 million cars on China’s roads (5.5 million in the capital alone). It is estimated that in urban areas vehicle emissions account for 25% to 30% of the PM2.5 in the air. To reduce these emissions, state and municipal governments have enacted or proposed a wide range of measures:
Eliminating all “yellow label” vehicles from China’s roads by 2017. (High-polluting gasoline vehicles that fall below the National I emission standard bear yellow stickers; the estimates I have seen for the number of yellow label cars run between 10 million and 20 million.)
Limiting the number of new cars on city roads by limiting the availability of new licenses. Through lottery or auction p. 170big cities like Beijing, Shanghai, Shenzhen, and Guangzhou have severely restricted the number of licenses they issue. For instance, Beijing limited the number of yearly licenses to 240,000 in 2011, 150,000 in 2014, and just 90,000 in 2017. In 2016 the competition in Beijing’s lottery was such that the odds of winning were 1 in 693.
Limiting the number of driving days per week per vehicle, with programs like alternate-day driving, based on the license plate number, or banning the vehicle from the road one day per week, again based on the license plate number.
Imposing congestion fees and increasing parking fees to discourage driving. (Average travel speed in Beijing now is 7.5 mph or 12.1 km/hour.)
Requiring China VI grade fuel (equivalent to Euro VI) in Beijing by 2016 and nationwide by 2017. China calculates that the lower sulfur content will reduce vehicle emissions by 40% to 50% compared to China V over time. The goal is for 50% of cars on the road to meet the China VI standard by 2020.
Mandating an average minimum fuel consumption of 47 miles per gallon for passenger cars by 2020.
There has been a big national push to promote the adoption of electric vehicles (including all-electric and plug-in hybrid vehicles) and to reduce the use of cars powered by fossil fuel. That push has included the following:
Providing subsidies of up to $16,000 for the purchase of an e-vehicle
Exempting e-vehicles from lotteries and auctions for licenses, a purchase tax, blackout days, and parking fees
Expanding fast-charging stations for e-vehicles (30-minute charge). The State Grid just added 50 stations along the 780-mile route between Beijing and Shanghai (one every 15.5 miles), and plans to place stations along another 11,800 miles of road by 2020
p. 171↵President Xi Jinping has set a goal of 5 million e-vehicles on the country’s roads by 2020. Thus far, however, e-vehicles have had only moderate success in China. Their limited range is one reason; the other is that China’s city dwellers live largely in high rises, with limited access to garages and chargers. But with all of the government incentives and the investment in e-vehicle infrastructure, sales between 2014 and 2015 increased about 350%, from 75,000 units to 331,000 units, according to the China Association of Automobile Manufacturers.
At the same time China is building up its mass transit capacity. Cities are developing their subway systems. Beijing, for instance, added 235 miles of new routes between 2007 and 2014 and plans to add six new lines and extend six existing ones between 2014 and 2020. By 2020 the capital will have 27 subway lines (vs. 2 lines in 2002), totaling just less than 620 miles. There will be metro lines in at least 38 of the country’s cities, with a total of 3,850 miles of track. The country already has the longest high-speed rail system in the world, extending 12,000 miles, which some people estimate to be longer than all the high-speed rail systems in the world combined. The present plan is to add another 7,000 miles by 2020 and integrate 80% of the country’s cities into the network. Finally, as city bus rapid transit expands, so has the proportion of buses powered by electricity. Already in 2014, of the 500,000 municipal buses on the roads, 80,000 were e-powered. The Ministry of Transport now proposes to have 200,000 new-energy buses and 100,000 new-energy taxis on China’s roads by 2020.
What Measures Has the Government Proposed to Address Water Pollution and Water Scarcity?
In April 2015, the State Council issued the “Water Pollution Prevention and Control Action Plan,” known also as the “Water Ten Plan,” committing $330 billion to protect China’s water resources. The plan is quite comprehensive, evidence of the government’s growing concern over the quality and scarcity p. 172↵of the country’s water supply. Among the key objectives are the following:3
Reducing pollution in seven key rivers, including the Yangtze, Yellow, and Pearl; by 2020, 70% of the water in these river systems is to be grade III or above.
Improving the quality of drinking water in the cities; by 2020, 93% of the urban drinking water is to be grade III or above.
Counties and “key towns” are to be equipped with wastewater collection and treatment facilities by 2020.
The country’s water consumption is to be capped by 2020 (at 670 billion m3) and groundwater extraction is to be strictly supervised (to prevent against overexploitation).
Small-scale paper and pulp mills, tanneries, textile dyeing factories, pesticide producers, and oil refiners are to be closely monitored; if in violation of water-pollution standards, they will be shut down by the end of 2016.
Typical of the plans that come out of Beijing, it lays out broad aims and objectives but does not detail how they are to be achieved or who the responsible agencies are.
In Chapter 6, I indicated that water scarcity is at least as grave a problem as water pollution, since China holds more than 20% of the world’s population but has only 7% or so of its freshwater resources. Thus, the annual per capita availability of fresh water is 2,000 m3, compared to the global per capita availability of 6,000 m3. Because of the aridity of the north, per capita availability there is much lower still; Beijing has but 100 to 150 m3/person, not quite 1/40th of the global average and well below the UN’s threshold of “absolute scarcity” (500 m3). This, of course, is why the government has given such high priority to water-transfer projects like the South-North Water Diversion Project (which brings to the north 6 trillion gallons each year from the Yangtze and its tributaries). Moving waterp. 173↵ from regions of abundance to regions of need is, for Beijing, a possible partial fix to a desperate problem.
In 2011 the average price of water in 25 major Chinese cities was $0.46/m3, while the global average was $2.03/m3. Deutsche Bank calculated that the Chinese spent 0.5% of their disposable income on water tariffs, compared to the 2.8% spent by Americans. In 2014, the Chinese government reformed its pricing structure, reducing its subsidy on water, raising prices, especially for heavy consumers, and introducing a three-tiered pricing system—all in an attempt to promote water conservation. Under this system, the heaviest users (the top 5%) will pay roughly three times the base rate for water, the second tier (the next 15%) will pay 1.5 times the base rate, and the remaining 80% will see little or no change in their water bills. This reform has met with some pushback, particularly among heavy users (e.g., industry and agriculture), but it seems to be moving forward as planned.4
In 2014, the government also proposed pilot markets for trade in water rights in seven provinces. In this program, provinces issue allocations of water and recipients who use less can sell their surplus in the market.5 In tackling the country’s desperate water scarcity, it seems that the government is increasingly relying on market-based solutions (a point the government makes in the “Water Action Plan”).
In addition to moving water and conserving water, Beijing wants to make more water. As a result, the government is going all in on desalination. It is an expensive process and an energy-intensive one, so there is considerable debate about its pros and cons. Nonetheless, some authorities see removing salt from seawater as a ready answer to China’s water scarcity and are developing technologies that will make the process cheaper and more efficient. Bloomberg reports, “The central government’s Special Plan for Seawater Utilization calls for producing three million tons (807 million gallons) a day of purified seawater—roughly quadruple the country’s current capacity [0.77 million m3].”6 Today, Beijing p. 174↵is building a huge desalination plant in the city of Tangshan, on the shores of Bohai Bay, which by 2019 is expected to supply Beijing with 1 million tons of water per day (one-third of the city’s tap water).7 The costs: $1.1 billion for the plant and $1.4 billion for the 170-mile pipeline to Beijing. Additionally, there are the energy costs associated with the daily operations of the plant.
Finally, there is China’s “artificial weather” program, which promises to produce an addition 60 billion m3 of rain (more than 1.5 times the volume of water in the Three Gorges Reservoir) each year by 2020. “Cloud seeding,” the popular term for this controversial geo-engineering technique, launches chemicals, such as silver iodide, into the clouds to induce rain. The government claims that with existing technologies the country could potentially produce 280 billion m3 of additional rain each year.8
What Progress Has the Government Made in the Battle Against Soil Pollution?
The government-sponsored land survey released in 2014 revealed that at least 20% of the country’s arable land is contaminated, and some experts estimate that the figure is much higher. But perhaps because polluted soil is less visible and obvious than polluted air and water, it has received less attention. Zhuang Guotai, head of the Ministry of Environmental Protection’s Department of Nature and Conservation, remarked, “In comparison with efforts to clean up air and water pollution, we’ve hardly got started with soil.”9
Only in mid-2016 did the government finally issue an action plan for soil, and it still has yet to issue a pollution prevention and control law for soil, as it has for air and water. This is not simply because the leadership has been slower to focus on soil pollution; it is also because in the case of air and water, China has been able to draw on the experience of other countries in formulating “action plans” and laws. In the case of soil, p. 175↵however, no other country offers a comparable experience. So extreme is the contamination that China has had no ready models to adopt.
The action plan contains a number of key targets:
Cleaning up 90% the country’s polluted farmland and industrial sites by 2020, and 95% by 2030
Completing a nationwide soil-pollution survey by 2018 that identifies all polluted land and classifies it by level of contamination
Establishing a uniform monitoring system that tracks soil quality throughout the entire country by 202010
The scope and severity of the country’s soil contamination will make cleanup an enormous challenge and a very costly one, with estimates ranging from $1.1 trillion to $1.6 trillion. Who will pick up the costs? Given that $1.1 trillion is the equivalent of more than one-third of all China’s foreign-exchange reserves, the government is not a likely candidate. (Consider too that thus far its funding for soil cleanup has been a very limited $451 million, to be divided among 30 cities between 2015 and 2018.) Some hope that private developers might take on some of the responsibility, especially in cities, since rehabilitation of the soil would increase the value of their property.
Research is under way to develop remediation techniques that can be successfully and inexpensively applied over large land areas. Technologies from overseas that are effective on small plots of land, and often quite expensive, do not serve China’s very different needs. Chinese scientists have begun experimenting with cheaper, easier-to-use technologies, like microorganisms that can “change the ionic state of heavy metals in the soil, deactivating the pollutants so they do not harm crops” and Mont SH6, a mineral that when applied to the soil absorbs heavy metals such as cadmium and copper and reduces their toxicity and activity levels.11 More research and p. 176↵more testing, it is hoped, will result in remediation methods and techniques capable of nursing the country’s compromised soil back to good health.
What Are Some of the Specific Environmental Measures Outlined in the Government’s Most Recent Five-Year Plan?
Since 1953, every five years the Chinese government has issued a so-called five-year plan, which lays out goals and policies—economic, political, social, and environmental—intended to guide the course of the nation for the next half-decade. These goals and policies signal to the country’s officials and people the priorities of the leadership and the direction the leadership would like China to take in the following five years.
The 13th Five-Year Plan (2016–2020), officially adopted in March 2016, reflects the considerable importance the government now attaches to improving the country’s environmental conditions. Observers all agree that this Five-Year Plan gives more comprehensive attention to environmental matters than any previous plan. While I have covered some of the measures proposed in the 13th Five-Year Plan in earlier questions in this chapter, it would be helpful here to bring together the targets for 2020 outlined in the plan, as in the aggregate they demonstrate the seriousness and comprehensiveness of the government’s environmental planning today:
Capping annual total energy consumption, for the first time, at 5 billion tons of standard coal equivalent
Reducing energy intensity from 2015 levels by 15%
Reducing carbon intensity from 2015 levels by 18%
Increasing the use of non-fossil fuels from 12% of the primary energy mix in 2015 to 15%
Approving the construction of six to eight nuclear reactors annually through 2020 in order to reduce the country’s consumption of coal
Instituting a nationwide carbon emissions trading system built on the seven regional trial programs introduced since 2013
Requiring that 80% of the country’s waterways meet grade III or better standards (up from the current 76.7% requirement)
Requiring that 95% of cities and 85% of counties have proper sewage treatment
Promoting the establishment of a “green finance system,” the aim of which is to expand capital flow (e.g., bonds, loans, development funds) for investment in energy-efficient and green initiatives
Investing in the construction of 14,500 miles of new high-speed rail lines, which will cover more than 80% of China’s major cities (at an estimated cost of $422 billion).
What Are the Country’s Major Environmental Administrative Entities?
The country’s main environmental regulatory body is the Ministry of Environmental Protection, one of 27 ministries and commissions under the direct control of the State Council (China’s cabinet). It is the youngest of all the ministries, created in 2008.
In 1998, the National Environmental Protection Agency was elevated to ministerial-level status, becoming the State Environmental Protection Agency. In 2008, the State Environmental Protection Agency became a full ministry, meaning that its minister serves as a full-time member of the State Council with full voting rights.12 The Ministry of Environmental Protection’s website lays out its general mission (article 1 of “Mandates”): “Be responsible for establishing a sound basic system for environmental protection. Draw up and organize the implementation of national policies, programs, and plans for p. 178↵environmental protection, draft out laws and regulations, and formulate departmental rules.” The ministry is divided into 14 departments and has a staff of roughly 300 people.13 Funding for its operations comes almost entirely from the State Council.
Other ministries with sizable environmental responsibilities include the Ministry of Water Resources, the Ministry of Agriculture, the Ministry of Housing and Urban–Rural Development, the Ministry of Land and Resources, the Ministry of Health, the Ministry of Transport, and the National Development and Reform Commission.14
Enforcement of environmental laws and policies falls to the local Environmental Protection Bureaus. There are about 3,000 of these bureaus throughout China, at the various territorial levels, provincial, prefectural, county, and, sometimes, township, employing a total of 175,000 people. Each local bureau is responsible to two authorities: the bureau at the next higher administrative level and the local government within its jurisdiction. It is the local government that provides the local bureau with its annual budget, hires its head, and pays the salaries of its employees.
The chief responsibilities of the local bureaus are (1) to implement the policies and enforce the regulations established by the central Ministry of Environmental Protection and (2) to draft policies and regulations that address the particular local conditions and needs of the area within its jurisdiction. Staff of the local bureau are responsible for inspecting local factories and industries, ensuring compliance with environmental regulations, and imposing fines and penalties on those violating pollution standards.15
One final environmental entity to consider is the environmental court. In 2007, Guiyang municipality in Guizhou province opened what was one of the country’s first specialized environmental courts. Serious pollution in the municipality’s main sources of drinking water—Hongfeng Lake, Baihua Lake, and Aha Reservoir—prompted the action. Establishment of this environmental court, authorized to hear civil, criminal, p. 179↵and administrative cases relating to the region’s environment, was intended, in part, to signal to the local population the determination of Guiyang’s officials to protect the environment. In May 2008, officials in Wuxi (Jiangsu province) opened an environmental court there when a major algae outbreak turned the waters of Lake Tai into a blanket of shimmering emerald green. And, in December 2008, arsenic pollution in Yangzong Lake in Kunming led to the creation of an environmental court in Yunnan.
Today there are 130 or so city- and district-level environmental courts throughout the country. How useful they have been is unclear. One legal scholar has remarked, “It is too early to draw any conclusions about the efficacy of these courts in improving the enforcement of environmental laws, but it is hard to see any downside to their creation.”16
What Are Some of the Main Challenges in Enforcing Environmental Regulations?
Since the “trial” Environmental Protection Law was issued in 1979, China has actively legislated environmental standards and promulgated environmental policies. A World Bank study reported that “In the last four decades, more than 28 environmental and resource laws, 150 national administrative environmental regulations, 1300 national environmental standards, and 200 departmental administrative regulations have been issued.”17
Thus, it is not the lack of environmental protection laws and policies that explains the country’s pervasive pollution; rather, it is that the laws and policies are not effectively implemented and enforced. There is an “implementation gap” between environmental laws and policies issued by the state and the state’s enforcement of them. As Ma Tianjie, formerly of Greenpeace East Asia and now editor at China Dialogue, put it, “If you look at China’s air pollution control laws, they’re pretty good compared to global standards . . . But no matter how good [the p. 180↵laws] look on paper, the true test will always be the willingness of local authorities to enforce them.”18 A number of factors have been suggested to explain this gap—and the country’s weak record of environmental enforcement.
Weakness of the Ministry of Environmental Protection
The Ministry of Environmental Protection is the youngest of the state ministries and appears to carry less weight in the State Council than the more established ministries (e.g., the National Development and Reform Commission, the Ministry of Water Resources, and the Ministry of Agriculture). Its authority is further limited by the fact that responsibility for environmental protection in the country is divided among a number of state ministries. But, perhaps most seriously, the ministry is understaffed (300 employees) and underfinanced: its relatively meager resources, human and financial, limit its reach and influence at the local level and restrict its ability to supervise the nation’s network of environmental protection bureaus effectively.
Tension Between Local and National Interests
The local environmental protection bureaus are expected to answer to both the ministry and the local government within the area of their jurisdiction. In practice, however, each bureau is guided more by the priorities of the local government, since it is the local government that provides most of the bureau’s annual budget, appoints the head, pays the employees, evaluates the staff, and even distributes resources like office buildings, cars, and employee housing. Abigail Jahiel summed the matter up nicely: “Since environmental organs are so dependent on local governments, they must take these governments’ concerns into account when regulating industry. It is the local government, therefore, that is the more powerful of the environmental agencies’ two administrative leaders.”19
p. 181↵And local governments have tended to favor economic development over environmental protection. A major reason is that the performance evaluations of local officials have been tied almost exclusively to the economic growth of the regions for which they are responsible. Environmental protection has counted for little. A second reason is that since local industry is a major source of revenue for local governments, governments strongly favor industrial growth, often at the expense of the environment.
Third, local industry often provides employment for much of the local population. While shuttering coal-fired power plants, steel mills, cement factories, and other energy-intensive operations may be good for the environment, reining in the toxic air, the consequences for the local economy can be devastating. Fining or shutting down local industry risks putting people out of jobs and so encourages social—and political—instability. For example, Hebei province, which was the home to 7 of 10 of the country’s most polluted cities in 2013, cut iron and steel production by 30 million tons in 2014. The result: economic growth declined from 7.7% in 2013 to 6.5% in 2014. The challenge in places like Hebei is to find new, alternative sources of economic growth. In March 2015, operations at 57 companies—steel, ceramic, glass, and coke plants—in the city of Linyi in Shandong province were suspended as part of the province’s fight against air pollution. Linyi’s PM2.5 level dropped a full 24.3% by May, but reports claimed that some 60,000 residents of Linyi lost their jobs, and local police claimed that the crime rate increased as a result. As one local legislator observed, “In retrospect, [Linyi] might have made too abrupt a turn to transform its economy.”20
The fourth reason why local governments have tended to favor economic development over environmental protection is that local officials may have personal ties to local industry or industrial leaders. Finally, officials can be bought by polluting industries. All of these reasons suggest why local governments might turn a blind eye to local industry and factories polluting the air, water, and soil.
p. 182Insufficient Punishments and Fines for Environmental Violations
The punishments and fines for environmental violations are too slight and inconsequential to deter polluters, rendering laws and regulations toothless. Owners of businesses and industries calculate that it is cheaper and more profitable to pay the fines than to take the measures necessary to comply with the environmental regulations.
Environmental Courts Remain a Work in Progress
The local environmental courts are intended to give added weight to a region’s environmental enforcement capacity, but by most accounts they are still suffering from a number of growing pains. Most seriously, perhaps, is that lawyers and judges only recently have begun to receive systematic training in environmental matters and the relevant bodies of laws and regulations. A related problem is that the courts thus far have been slow to accept and to hear cases. The lack of expertise, no doubt, contributes to much of the hesitation, but so too does a lack of systematic procedures and regulations governing the courts. Finally, the courts are not necessarily bodies acting independently; as with the environmental protection bureaus, they tend to be heavily guided by the local governments within their jurisdiction.
Many measures for making environmental enforcement more effective are either under discussion in China or in the very early stages of implementation. The most promising ones, in my view, are as follows:
Merging the environmental responsibilities of the Ministries of Environmental Protection, Water Resources, Agriculture Land Resources, and the State Forestry Administration into one ministry, a sort of super-Ministry of Environmental Protection
Making local authorities more responsive to the aims and priorities of the Ministry of Environmental Protection by giving the ministry more responsibility for the budgets of p. 183the local environment bureaus and authorizing it to send inspection teams to the provinces and regions throughout the country. The Deputy Director of the Research Center on Environmental Economics at Fudan University called this a shift to a “vertical management system,” “whereby an agency works via an internal hierarchical structure, with lower departments reporting directly to higher ones instead of to outside local governments.”21
Holding local officials more accountable for environmental protection by giving stronger consideration to their environmental performance—that is, their effectiveness in protecting the region’s natural resources (through a natural resources audit, for example)—in the official evaluation and promotion process, and by cracking down on those who do not dutifully enforce environmental regulations and standards. For instance, in June 2016, in a case that received wide media attention, provincial prosecutors in Shandong successfully sued the local environmental protection bureau in Qingyuan county for failing to punish the Qingshun Chemical Technology Company for producing dyes without the appropriate safety measures.22 Cases like this receive considerable publicity in the press these days, as if to signal to the people—and local officials themselves—the government’s new determination to rein in the laxness and corruption of local environmental officials.23
Increasing investment in environmental protection. China now spends roughly just 1% of its GDP on environmental protection; experts suggest that the investment be increased to somewhere between 2% and 4% of the GDP, which is more in line with what high-income European countries spend. Increased investment could be put toward hiring skilled staff, improving available testing and monitoring technologies, and buying much-needed inspection vehicles.24
Toughening penalties against polluters. Until recently, the cost of compliance with environmental regulations p. 184has been higher than the cost of noncompliance. Fines for pollution have been so insignificant that companies would sooner pay the fines than take the anti-pollution measures required to become compliant. In a 2014 session of the National People’s Congress Standing Committee, one lawmaker calculated that operating a 100,000-kilowatt generator in compliance with environmental standards would cost the company $80,000/year in environmental protection fees, while operating it in violation of those standards would cost a mere one-time fine of $1,600.25 With the revised 2015 Environmental Protection Law (see below), the penalties have become heavier and the deterrent effect stronger. And no longer is the fine a one-off; it is to be assessed daily and cumulatively— without limit—until the company addresses the violation.
What Is the Significance of China’s 2015 Revised Environmental Protection Law?
China implemented its first Environmental Protection Law in 1979 on a trial basis, and in 1989 the country formally passed the trial law into legislation. In 2011, lawmakers began revising the law for the first time. After three years and four drafts, they agreed on an amended version in April 2014, which became effective on January 1, 2015.26 This is an extremely important document. Its articles, in my view, reflect a Chinese government that fully recognizes the severity of its environmental crisis and is committed to bringing about change.
That it took three years and four drafts to come to an agreement indicates that the negotiation process was challenging and that competing priorities and interests of various ministries and party leaders needed sorting out. For one, the National Development and Reform Commission was at times quite outspoken about its worry that environmental measures would take too big a bite out of the country’s economic growth.
p. 185↵In any event, what emerged in the revised law was no mere tweaking of an article here and there. The 1989 law contained 47 articles; the 2015 law is much expanded, containing 70 articles, including one entirely new chapter on “Information Disclosure and Public Participation” (articles 53–58). Environmentalists and lawyers find especially promising the revised law’s call for stronger penalties, greater public participation, and stricter official accountability for environmental protection.
Stronger Penalties
Fines may be imposed “consecutively on a daily basis,” without any limitation (removing the previous cap of $75,000) and “the coverage of types of violation activities to be subject to the daily-based fine” may be extended (article 59).
For certain non-criminal violations of the pollution law, the “person directly in charge and other personnel subject to direct liabilities” may be detained for a period of up to 15 days (article 63).
Local authorities may suspend or shut down operations of an enterprise discharging “pollutants in excess of emission standards, or in excess of the total emission quota of major pollutants” (article 60).
Greater Public Participation
The ministry “shall release national environmental quality, monitoring data of key pollutant sources and other major environmental information”; local environmental agencies shall do the same. Additionally, citizens and social organizations “shall have the right to obtain environmental information, participate and supervise the activities of environment protection in accordance with the law” (articles 53 and 54).
Environmental protection agencies above the county level must keep a list of enterprises, institutions, and business operators that violate environmental standards p. 186and “disclose the list of lawbreakers to the public” (article 54). (These articles promoting transparency have helped make possible the pollution mapping of Ma Jun and the Institute of Public and Environmental Affairs.)
“The project owner of a construction project . . . shall explain relevant situations to the potentially-affected public when preparing the environmental impact report, and solicit public opinions.” The environmental impact assessment must be done before construction begins (articles 19 and 56).
A so-called whistleblower article guarantees the right of “citizens, legal persons and other organizations” to report “environmental pollution and ecological damage activities of any units to the appropriate environmental protection administration.” If local governments and their environmental protection bureaus fail to fulfill their legal responsibilities, they may be reported to the next higher level of government or the supervisory department. The whistleblower’s name and information shall be kept confidential (article 57).
Grassroots organizations, social organizations, and environmental protection organizations are to be encouraged by “the people’s government at various levels . . . to carry out the publicity of environmental protection laws, regulations and knowledge, so as to facilitate a favorable atmosphere for environmental protection” (article 9).
In an article that was especially welcomed by environmental activists, social organizations meeting the following conditions may take legal action against pollution violations on behalf of the public interest: they are registered at or above the municipal level, have specialized in environmental protection public-interest activities for five years, and have no legal violations (article 58).27
Holding Officials More Environmentally Accountable
“The total discharge quota of key pollutants is assigned by the State Council, and allocated to provincial, autonomous region, and provincial municipality government for implementation.” Regions that fail to meet the assigned quotas will not be permitted to grant approvals for new construction that might contribute further to the levels of the key pollutants (article 44).
Officials are to guide agricultural producers in their area in the rational application of fertilizers and pesticides, in proper waste management, and in the “prevention of non-point sources of agricultural pollution” (article 49).
Higher levels of government are to exercise oversight of the environmental protection works of the “people’s governments at lower levels and their relevant departments” (i.e., implementation of vertical management system). Article 67 goes on to say, “Where competent environmental protection departments fail to issue administrative punishments despite being so required in accordance with the law, the competent environmental protection departments may directly make the decision on administrative punishments.” This article should be viewed as protection against ineffectual environmental protection bureaus.
Local officials who commit unlawful environmental-related acts (nine general offenses are listed) can be given a demerit, demoted, removed from office, or dismissed from government, depending on the severity of the violation and its consequences (article 68).
The revised Environmental Protection Law has given environmentalists in China hope. It demonstrates a sound understanding on the part of the government of where and how p. 188↵the environmental regulatory system of the past has fallen short. And, it shows a very real desire to address that system’s greatest weaknesses. But, in the end, the success of the revised law depends, as China’s environmental law always has, on how conscientiously and effectively authorities implement and enforce it.
