Put China's tough new law to protect the environment to the test

Tianjie Ma says the challenge lies in enforcing the hard-won measures

Press release - 2015-01-19
Chinese laws are never short of "sleeping beauty clauses" - nicely written items never enforced

-This article appeared in the South China Morning Post on Jan. 14th, 2015

Beijing's notorious smog can be depressing. That's why, in this city, the most watched sign of good air quality is the wind forecast: a strong wind from the north often disperses pollution and returns the much treasured blue sky to the anxious capital. This year, another good wind arrived on January 1, the revised Environment Protection Law.

The new law represents a once-in-a-generation overhaul. Its predecessor was passed in 1989, setting up China's initial legal framework under which its vast areas of land, water and ambient air got some basic protection.

Since then, the world's most populous country has witnessed unprecedented economic growth. A combination of unbridled industrialisation and a get-rich-fast-and-forget-everything-else mentality has quickly rendered China's rivers toxic cocktails and its air unbreathable.

Under such pressure, the legal framework set up 25 years ago looks like a house of cards. There are fundamental flaws in a framework that encourages violation: penalties were so low that businesses set aside pollution fines as a matter-of-fact operational cost.

Local environmental enforcers had no meaningful legal authority to deter polluting activities, many of which were accepted by local cadres who value revenue generation more than environmental quality. Moreover, the general public and civil society groups had few legal channels to hold businesses and governments accountable for environmental damage.

The new measures are no window dressing. A new "killer clause" of an accumulative fine, borrowed from Western environmental laws, is now in place. Businesses that pollute for a sustained period of time face fines based on the number of days they are in violation of the law, without a ceiling. The days of one-off, low fines are probably gone forever.

Local environmental inspectors now have the authority to shut down factory facilities or even to detain those who are responsible, a power they never enjoyed before.

The law has also introduced a groundbreaking public-interest litigation clause, allowing civil society groups to bring environmental lawsuits on behalf of unrepresented nature. In addition, the law states that local government officials can be held accountable for a range of unlawful acts, including "inaction", which gives the public another powerful lever against bureaucrats who look the other way when pollution occurs.

Chinese society has tremendous expectations for this new law. Three years in the making, the revision process itself speaks volumes about the stakes involved. The public-interest litigation clause alone triggered a highly publicised, multi-round discussion among ministries, non-governmental organisations and legal scholars that had never been seen in previous legislative processes.

But for any law, the devil is always in enforcement. Chinese laws are never short of the so-called "sleeping beauty clauses" - nicely written items that are in reality never enforced, either due to the intrinsic vagueness in the law itself or the unwillingness of law enforcement to trigger them.

There is a possibility that the new Environment Protection Law could become another "sleeping beauty". But at the beginning of the year, China's vice-minister for environmental protection, Pan Yue, suggested otherwise. "We will absolutely not allow this new law to be an empty piece of paper," he said. The only way to verify such a statement is to test the new law with real cases.

-Tianjie Ma is programme director for mainland China at Greenpeace East Asia