China Revised Law to Establish Basic Environmental Rights

China

Last Thursday, China’s parliament passed a new law addressing the nation’s widespread environmental problems. Although questions remain on its implementation, experts widely praised the final version of the law, saying that it was better than expected. It revises a 25-year-old environmental protection law to empower environmental authorities, grant legal suing right to non-government organizations, and most importantly, establish basic environmental rights in China.

Air, water and soil pollution are at alarming levels. This harsh reality has been caused by decades of following an economic model of growing-at-all-costs. There was never a shortage of laws but the problems are lax enforcement of laws and weak penalties for breaking them. Polluters with the right connections can escape punishments; even in rare cases when prosecution happens, fines are capped too low to halt the pollution.

For decades, the official promotion system in China has been based solely on economic performance. As the leaders at local levels lock their focus on economic achievements, tax revenues generated from the profits of polluters are always far more important than penalizing these companies. This explains why environmental authorities at local levels have been toothless.

Thursday’s revision, effective on Jan. 1 next year, means these old and good days for polluters are numbered. And a switch from economic growth to environment well-being in the official promotion system, most recently emphasized in China’s National Congress annual meeting in March, would be executed more smoothly, as the environmental authorities would be armed with the tools to do so.

The significance of the new law is that it cracked open a door to democracy and established basic environmental rights in China. It includes a chapter on information disclosure, acknowledging that citizens have the right to obtain information about the environment. This is a landmark in government transparency which U.S. citizens take for granted but never before was imaginable for Chinese citizens. Information on environment monitoring and impact assessments would be made public.

This is almost equivalent to the National Environmental Policy Act (NEPA) of 1969 in U.S. It took China’s parliament almost two years to pass the measure. Three earlier versions were rejected due to the fierce battle of interests behind the law. The final review of the law was the fourth time, which has never happened in the history of policy making in China. Thursday’s amendment loosened a ban on most environmental non-government organizations (NGOs) filling class action lawsuits against polluters; now more than 300 organizations can sue on behalf of those harmed by pollution.

To qualify for this legal right, environmental organizations need to be registered with a civil affairs bureau at the municipal level or above and have no less than five years of operation. In the past, Chinese NGOs just reported violations to the authorities and government agencies decide whether and how to sanction offenders. With the new law, a large number of environmental cases are expected in 2015.

Environmental crisis becomes a key source of discontent for many Chinese. An increasing number of mass protests have happened in many cities in recent years, staging citizens who fear their environment will be ruined. Now the qualification of NGOs to litigate public interest cases is clear in the new law, it might channel the anger and fear into legal remedies thus help cool the mass protests.

Behind the encouraging news, NGOs worry about enforcement and litigation costs. Supervision is needed to ensure the courts really do accept and hear appropriate cases. Some courts can be reluctant to do so, for the fear of getting into trouble in dealing with defendants. Even if the cases are accepted, the possible colossal litigation costs can be an unbearable burden for grassroots NGOs.

In 2011, Friends of Nature (FON) became the first and only Chinese grassroots NGO to launch an environmental public interest lawsuit successfully. Demanding compensation from companies dumping toxic chromium waste, the case was halted as FON could not afford the millions of Yuan needed in getting the judicial identification of the specific damage the defendants caused. It is unclear how the new law can help solve this financial strain.

Earlier this month, the incidence of carcinogenic pollution of tap water in city of Lanzhou, due to poor handling of an oil leak, draws attention to water pollution. And a release of a previously classified official study, showing that 16.1 percent of soil and 19.1 percent of arable land are ravaged by toxic, heavy-metal contamination, deepens the concern of food safety. Soil pollution, unlike air and water pollution, can take decades to appear and polluters are harder to find. China may need to learn from U.S. to build a Superfund system to remedy such orphaned contaminated sites.

The worsening environment poses increasing health threats. Lifted from poverty, Chinese citizens got what they wanted, such as better living conditions, but lost what they already had, such as clean air, water and safe food. Unwilling to sacrifice environmental interests anymore, the new environment law established basic environmental rights and is critical to win the war on pollution China declared in March.

Opinion by Tina Zhang

Sources:

Voice of America
South China Morning Post
Shanghai Daily
Xin Hua News
China Dialogue (in Chinese)

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