Environmental Reviews and Case Studies: Latest Developments in Chinese Environmental Law

Abstract

Chinese environmental law in the 21st century continues to evolve in legislation, enforcement, higher education, and academic research. This article summarizes the general development of Chinese environmental law and reviews the new policy of a five-type society; new legislation and amendments; policies on energy conservation, emission reduction, and climate change; the establishment of the Ministry of Environmental Protection; the attempt at environmental courts; the first case of environmental public interest litigation; environmental protection; nongovernmental organizations; and higher education and academic research on environmental law.

Notes

Notes

1. Green economic society means an ecological and economical society that includes recycling and low carbon production.

2. For example, the 2002 Cleaner Production Promotion Law [National People's Congress (NPC) Standing Committee, 2002a] is important legislation promoting the construction of an environment-friendly society, which is one that includes using cleaner production technologies, processes, and equipment. The 2002 revised Water Law (NPC Standing Committee, 2002b) legislatively confirmed “the construction of a water-saving society” for the first time. Water saving is an important aspect of an environment-friendly society. The Communist Party of China (CPC) and the State Council's 2003 Decision on Accelerating Forestry Development (State Council Central Committee, 2003) clearly promoted the guiding ideology and tasks of constructing a society based on a “graceful landscape and an ecological society.” The concept of developing a harmonious socialist society was first mentioned by the CPC in its 2004 Decision on Enhancing the CPC's Leadership Ability. Building a harmonious socialist society is listed officially as one of five leadership goals of the party that the CPC intends to improve comprehensively, emphasizing the development of recycling in building an economical society. The 2005 Decision of the State Council on Implementing a Scientific Outlook on Development and Strengthening Environmental Protection stressed the promotion of an environmental culture, an ecological society, and social justice through compensation for environmental damage; the advancement of social harmony through ecological balance; and the enrichment of a spiritual civilization through an environmental culture; and clearly required that the work of environmental protection should follow the Scientific Outlook on Development (a CPC strategic concept), rely on scientific and technological progress, develop a recycling economy, advocate an ecological civilization, emphasize the rule of environmental law, improve the supervision system, and establish a long-term mechanism for environmental protection.

3. Hu Jintao (2012), General Secretary of the Communist Party of China, declared, “Firmly march on the path of socialism with Chinese characteristics and strive to complete the building of a moderately prosperous society in all respects.”

4. Such as Environmental Protection Law of the People's Republic of China, Law of the People's Republic of China on Prevention and Control of Atmospheric Pollution, and Forest Law of the People's Republic of China.

5. The Eleventh Five-Year Plan (2006–10) indicated clearly that the binding targets regulated in this plan are legal and should be included in comprehensive and performance evaluations of the economic social development of all regions and departments. To separate the target into specific tasks for relevant departments, the amount of cultivated land reserved, the target for reducing energy consumption per unit of GDP, and the target for cutting the total discharge of major pollutants should be distributed to each province, autonomous region, and municipality directly under the central government. The so-called legal effect means that the binding target should be guaranteed by national laws and state power, the government must ensure fulfillment, and the government bears legal responsibility, which is very different from general planning requirements and moral commitment. The Twelfth Five-Year Plan (2011–15) clarified, “The binding targets and the task of public service are government's promise to their people. The main targets should be distributed accordingly. The task of promoting equal access to public services, which should clarify the work liability and schedule, is mainly accomplished by government through public resources” (CPC, 2011, sect. 1, ch. 61).

6. Since 2002, when the State Environmental Protection Administration founded the East China Environmental Law Enforcement Center, which has been running as a pilot for cross-regional environmental monitoring agencies. On July 8, 2006, the State Environmental Protection Administration announced the formation of five environmental protection supervision centers, with one each in Eastern China, Southern China, Northwest China, Southwest China, and Northeast China.

7. In a larger sense, it should be the birth and advancement of the specialized environmental protection judicial authorities as environmental courts, the environmental procuratorate and environmental police, and the specialized environmental lawyer team. Therefore, the so-called strengthening of the construction of environmental court in this report also includes or relates to the establishment of an environmental police department, the procuratorate, and the lawyers.

8. By the way, to strengthen the judicial implementation of the environmental law, settle the increasing number of environmental disputes, and improve the efficiency of handling environmental cases, Sweden, New Zealand, South Africa, Pakistan, Bangladesh, Kuwait, the US, Australia, and other nations have established separate courts to try cases involving the environment, land, water, the ecology, forests, and mining. These environmental courts deal only with cases of environmental pollution and protection. For example, Spain's Valencia Water Court, founded 1,000 years ago, specializes in water disputes (Department of Regulations and Policies, Water Resources Ministry, 2001). Sweden enacted its first environmental law in 1969 while the establishing its first environmental court and then established environmental courts in five districts. The land and environmental court established in 1980 in New South Wales, Australia, has successfully resolved many environmental resource disputes. In the US, Vermont established its environmental court in 1990 to good effect in resolving environmental and resource disputes. In the Seventh Annual Colloquium of the IUCN (International Union for Conservation of Nature) Academy of Environmental Law, held at the Wuhan University Law School in 2009, American professor George Pulin, who had analyzed over 100 environmental courts in 139 nations and other areas worldwide, said that he thought that environmental protection courts have many superior special characteristics (see Pulin and Pulin, 2009).

9. For example, in the Seventh Annual Colloquium of the IUCN Academy of Environmental Law (2009), many characteristics and advantages of environmental protection courts were affirmed. At the beginning of April 2011, the International Symposium on Environmental Courts & Tribunals was held at the Judicial Institute of the State of New York, where many judges and jurists discussed how the more than 380 environmental courts worldwide provide feasible procedures for citizen suits, civil law enforcement proceedings, and environmental criminal prosecution (International Judicial Institute for Environmental Adjudication, 2011). The US Environmental Protection Agency and researchers from Vermont Law School showed a lot of interest in, and enthusiasm for, China's 14 environmental courts.

10. For example, in 2007, Guiyang Intermediate People's Court developed a plan to establish an environmental protection court, “The Implementation Plan of Guiyang Intermediate People's Court on Setting Up the Environmental Protection Court” (Guiyang Intermediate People's Court, 2012b), “Guiyang Intermediate People's Court Decision on Designated Jurisdiction” (Guiyang Intermediate People's Court, 2012a), and “Regulation on the Scope of Case Acceptance by Guiyang Intermediate People's Court Environmental Protection Court and Qingzhe People's Court Environmental Protection Court” (Guiyang Intermediate People's Court, 2012c), which regulated the scope for accepting environmental public interest litigation by environmental courts. Kunming Intermediate People's Court and Kunming People's Procuratorate issued a joint document on October 25, 2010, “Several Opinions on Dealing with Civil Environmental Public Interest Litigation Cases (the Pilot),” which regulated specifically the basic requirements and procedures for environmental public interest litigation: “If citizens, legal entities, and other organizations infringe on the general public's environmental interests, the People's Procuratorate, Environmental Protection Agency, and Environmental NGOs shall have the right to file civil environmental public interest litigation.”

11. Among several “Executive Opinions on Environment Civil Public Interest Litigation Pilot (July 2011)” issued by Hainan Provincial Higher People's Court, Article 6 stated,

The following national authorities, social organizations, or civil subjects may file environmental public interest litigation: (1) the People's Procuratorate; (2) related administrative departments, including (a) the administrative department of environmental protection, (b) the administrative department of marine and fisheries, (c) the national maritime administration, (d) water administrative department, (e) forestry administrative departments, and (f) environmental supervision and administrative departments authorized by laws and regulations; (3) legal institutions for the management of nature reserves; (4) legal entities and organizations engaged in environmental protection, social public welfare, and social public service; (5) grassroots self-governing organizations such as residents' committees and village committees; and (6) citizens.

12. For example, Guiyang Intermediate People's Court determined that, for the Qinghe People's Court environmental tribunal to accept environmental public interest litigation, the plaintiff should be the administrative department, procuratorate, and special institutions such as the administration for two lakes and one reservoir. When Wuxi Intermediate People's Court clarified that procuratorates at all levels, environmental protection administrative departments at all levels, community organizations, and residents' community property management departments qualified as plaintiffs, which confirmed the environmental protection of natural ecological planning areas, resident community areas, areas along the Taihu Lake and the Yangtze River, primitive canal water and planning environmental zones, and key scenic environmental protection planning zones as within the scope of jurisdiction for civil environmental public litigation. If a water pollution case occurred in a cross-administrative region, the local administration could not exercise jurisdiction, though it could file civil environmental public interest litigation.

13. For example, in early November 2009, the Seventh Annual Colloquium of the IUCN Academy of Environmental Law analyzed newly emerging environmental public interest litigation in China and affirmed many characteristics and advantages of environmental protection courts. At the beginning of April 2011, the International Symposium on Environmental Courts & Tribunals showed a lot of interest and research enthusiasm in China's latest implementation of environmental public interest litigation (International Judicial Institute for Environmental Adjudication, 2011).

14. Compared to general government and commercial enterprises, Chinese NGOs make up a third group, which has two basic characteristics: (a) the group does not have any administrative power and (b) the government does not raise money to sustain it, so its nonpursuit of profit is its biggest difference from commercial enterprises as it specializes in the social public welfare. Some NGOs are formed and financed by the government, so they are not actually nongovernmental in the typical sense, but just registered as NGOs.

15. See the chapter “The General Situation of Chinese Environmental NGOs” in China's Environmental NGOs' Development Status (2008 Environmental Blue Book), from the All-China Environment Federation (2008).

16. The Environmental and Resources Law Research Association of the China Law Society was formally established at the conference of Sustainable Environmental and Resources Law (Research Institute of Environmental Law, 1999), The society is a national environmental law research institution dedicated to improving environmental legislation, environmental law enforcement, and higher education.