香港留学生环境法硕士课程作业写作指导-Critical evaluation of environmental laws

香港留学生环境法硕士课程作业写作指导-Critical evaluation of environmental laws and regulations in the effectiveness of air pollution control

 

 

二十几年来空气污染在中国是一个重大的环境问题。在发电厂，工业生产排放的增加，和汽车都结合起来，创造了一些世界上污染最严重的地区。在中国的一些大城市，包括北京，重庆和太原，细节和二氧化硫（SO2）水平的两倍多，世界卫生组织（WHO）指南（约翰逊，刘等人。1997。）

 

 

中国的人民代表在环境执法中的低效和不充分利用的资源。虽然环境公民投诉数量近年来急剧增加，相当部分的投诉都集中在扰民问题- 作为一个结果，这样的投诉没有提供非常重要的信息为地方环保局违规，否则可能会被预期。这就造成了在环保局已经制约了执法资源，地方环保局的要求作出及时，迅速回应每一个投诉（马＆Ortolano，2000）。

 

 

 

Introduction

Air pollution has been a major environmental issue in China for two decades. Increases in emissions from power plants, industrial manufacturing, and automobiles have all combined to create some of the most polluted areas in the world. In some of China’s large cities, including Beijing, Chongqing and Taiyuan, levels of particulars and sulfur dioxide (SO2) were more than double the World Health Organization (WHO) guidelines (Johnson, Liu et al. 1997).  

 

 

High levels of air pollutants are more than a nuisance. Ozone (O3) and sulfur dioxide (SO2) are damaging to crops and forests. Carbon dioxide (CO2) contributes to global warming. And many air pollutants, including ozone, SO2, nitrogen oxides (NOx), carbon monoxide (CO), and particulate matter (PM) have been linked to adverse health outcomes, ranging from coughs and restricted activity to chronic bronchitis and even increased death rates from respiratory illness (Burnett et al. 2004)

 

 

In response, from the late 1970s, China began implementation of a number of environmental

policies in relation to air and water pollution and solid waste disposal, and the number of these regulations has been steadily increasing (Sinkule and Ortolano, 1995). Over the past three decades, the Chinese government has established a comprehensive environmental legal system and organizational infrastructure to address the increasing

environmental degradation that has resulted from its unprecedented economic growth. As of 2008, approximately 3000 local environmental protection bureaus (EPBs) with about 180,000 staff members were working at the sub-national level throughout the nation (Jahiel, 1998). However, weak enforcement of environmental regulations has been recognized as a major problem in China. 

 

 

This essay points out the shortage of Chinese environmental regulation through introducing the institutional framework of China’s environmental enforcement at the national and local levels and discussing the role of citizens and courts. The main challenges with China’s environmental enforcement are also presented.

 

 

1. Overall Institutional Framework of China’s Environmental Enforcement

The Chinese environmental administration reflects the basic features of the Chinese state, which is a multi-layered institutional structure with territorial divisions at the center, province, city, county, township and village levels. At the top is the Ministry of Environmental Protection (MEP), a cabinet-level ministry in the executive of the Chinese government. Directly under the State Council, MEP has 15 divisions and is primarily charged with the task of protecting China's air, water, and land from pollution and contamination. Examples of MEP’s primary responsibilities are to organize the formulation of national policies, laws and regulations, to develop national environmental quality and pollutant discharge standards, to guide and coordinate major environmental problems (e.g., severe pollution accidents) at the regional and local levels, to formulate the pollution reduction programs and supervise the implementation, and to manage environmental monitoring, statistics and information. While MEP is primarily responsible for supervising local environmental enforcement, it has also taken direct enforcement measures. This has often been done through special environmental enforcement campaigns launched in cooperation with local EPBs. Almost every year, MEP initiates country-wide campaigns to address specific environmental problems such as excessive pollution from Township and Village Industrial Enterprises, prevention of accidents in the chemical sector, pollution from mining activities, etc. For example, MEP launched a major campaign in 2005 to enforce the Environmental Impact Assessment Law, which came into effect in September 2003. The campaign, widely known as the “Environmental Protection Storm,” started with a nation-wide public education program on the EIA Law. In an unprecedented move, MEP slapped "regional permit restrictions" on four cities and four major power companies, suspended approval of any new projects until they brought their existing facilities into compliance with environmental regulations. The campaign even halted some Three Gorgesrelated dam construction activities. However, the construction activities were soon permitted to continue after additional documentation was provided (Zhang et al, 2010). 

 

 

MEP is replicated at the provincial, city, city-district/county level, and, in some places

,township level, known as EPBs. Like most local government agencies in China's unique bureaucratic system, local EPBs must be responsive to two leaders: the administratively highertier EPB and the local governments where they reside. Under this "dual leadership," MEP and provincial EPBs provide city EPBs with policy directives and guidance for the implementation of national and provincial environmental regulations. District and county EPBs are below the city level in the Chinese bureaucracy and thus receive guidance from city EPBs. Therefore, the chief responsibility of EPBs at and below the provincial levels are to enforce laws and policies designed by MEP and to assist in drafting local rules to supplement central ones. Monitoring, record keeping, fee collection, onsite inspection, and violation and accident investigation are also assigned to them.

 

 

However, it is local governments, not MEP or higher-tier EPBs, which provide local

EPBs with their annual budgetary funds, approve institutional advancements in rank, and appoint the bureau directors. As a result, the local government is considered to be the “more powerful” of local EPB’s two administrative supervisors. Local EPBs are so dependent on local governments that they must take those governments’ concerns into account when regulating polluting sources or taking enforcement actions. MEP has limited control over the priority and activities of local EPB enforcement.

 

 

2. Local Environmental Enforcement

In China, local EPBs have relied on a number of specific regulatory instruments for Industrial pollution control. The most important ones, introduced by the 1989 Environmental Protection Law, include environmental quality and emission/discharge standards, “Three Synchronizations,” EIA, Pollution Levy System (PLS), and the Discharge Permit System (DPS). 

MEP is authorized to establish national environmental quality standards, which are maximum allowable concentrations of pollutants in water, air, or soil, and national discharge/emission standards, which are maximum allowable concentrations of pollutants in industrial emissions or discharges. Those standards provide a basis for EPB inspections The “Three Synchronizations” requires that (1) the design, (2) the construction; and (3) the operation of a new industrial enterprise (or an existing factory expanding or changing its operations) be synchronized with the design, construction and operation of an appropriate pollution treatment facility. Once the construction of the project is completed, inspection and approval by EPBs are required (for large projects, or in case of a dispute at the local level, the approval has to be confirmed by the national level authority). If project operations begin without

 

 

EPB approval, the owner of the project can be sanctioned. The 1989 EPL requires projects with potentially negative environmental effects to be subject to EIA before approval by local Development and Reform Commissions. MEP conducts nationwide checks on the implementation of EIA, while local EPBs are responsible for the compliance of EIA requirements at the local level. The Pollution Levy System links an economic incentive for pollution reduction with sanctions in case of non-compliance. The polluting sources that refuse to register their waste releases or fail to pay the amount of due pollution levies face an administrative penalty. In practice, the actual levy paid by a firm is usually negotiated between the EPB and firm rather than calculated using formulas detailed in regulations. Under the Discharge Permit System, EPBs issue permits that limit both the quantities and concentrations of pollutants in an enterprise’s wastewater discharges and air emissions. The DPS rules require enterprises to register with EPBs and apply for a permit. The discharge permits provide a basis for collecting pollution levies and are used to verify whether polluting sources discharge wastes illegally. The violations of the discharge permit requirements are subject to administrative penalties.#p#分页标题#e#

 

 

At present, the most common offenses found in practice are failure to comply with the EIA or “Three Synchronizations” requirements, non-compliance with environmental standards and failure to pay pollution levies, operating without necessary environmental permits, and failure to operate pollution control facilities. The violation are usually detected by EPBs through regular inspections or by the victim, local public or media etc. and then made known to EPBs.

 

 

In most cases, violations are detected following citizen compliance (discussed in the next section). After a violation is detected, EPB inspectors carry out on-site inspections (in the case of violations detected during EPB regular inspections, EPBs inspectors are already on site) to gather evidence, sometimes working in tandem with environmental monitoring staffs who collect pollutant samples and generates monitoring results for verifying the violation. This is difficult because violators often do their utmost to obstruct EPB work. For example, they might refuse to provide relevant information, to sign the EPB onsite inspection documents, and to use personnel connections to influence EPB work. On the basis of the evidence collected, inspectors write a sanction proposal and submit to EPB leaders for review and making a final sanction decision.

 

 

In principle, EPBs have jurisdiction over issuing several administrative sanctions such as warning letters, fines, unlawful gains confiscation, stoppage of production or use, discharge permit revocation, enterprise closure, or relocation orders. In reality, fines are the most frequently applied measure while closing down a polluter, revoking its permits, or ordering it to stop production are seldom used because the issuance of those sanctions need approval from local leaders. Different levels of EPBs have different responsibility and authority to impose penalties. County EPBs can impose fines of up to CNY 10,000 (approximately 1,500 USD) and city EPBs can impose fines up to CNY 50,000, while provincial EPB can impose up to CNY 200,000. When deciding on the proposed sanction, EPBs look at the statutory sanction limitations and take into account of such factors as the degree to which regulations were violated, the number of times violation occurred, and the response to the violation (whether voluntary corrective action was taken).

 

 

It is EPB leaders, not onsite inspectors, who exercise considerable discretion in deciding the types and amount of penalties imposed. EPB leaders often face tremendous external pressures in making a final sanction decision. For example, they frequently need to consider “requests” from local leaders on behalf of violators in order to evade the punishment, the future relationships with violators (often influential local enterprises), inter-personal connections violators with EPB leaders through which violators ask for a favors of reducing or waiving fines. The maximum statutory penalty is rarely issued in practice.

Compliance schedules (“pollution control within deadlines”) are also frequently used:

They require enterprises to reduce their pollution releases to acceptable levels by specific dates.

 

 

Clean-up deadlines for enterprises are usually imposed by the national or local governments, but EPBs can also be authorized to set such deadlines. Enterprises that do not abate pollution on time risk being fined or shut down. In recent years, the system was expanded by offering the possibilities for technological renovation, phase-out of outdated technologies and products, and promotion of cleaner production in exchange for extending the shut-down deadlines.

 

 

There are three verification procedures designed to check or review EPB administrative decisions: internal review, administrative review, and court review. Internal review means that higher-tier EPBs take initiatives to verify the enforcement work of lower-tier EPBs. Administrative review of a county EPB decision can be carried out by a municipal EPB or by the legal office of the county government, when the latter receives a request from a regulated party who disagrees with the county EPB decision. Court review of EPB decisions is usually initiated by regulated parties under the Administrative Litigation Law (discussed in the next section).

 

 

3. Role of Courts and Citizens in Local Environmental Enforcement

When administrative enforcement is insufficient or fails, non-compliance can be addressed through courts in China. This can include actions ranging from gaining court assistance in collecting pollution levies or fines to criminal sanctions for serious environmental degradation. The Administrative Litigation Law (ALL), which went into effect in 1990, permits citizens and organizations to sue administrative organs in court. Studies have found that court enforcement of EPB decisions has enhanced EPB

regulatory power by generating notable deterrent effects on the regulated community. Since the majority of the ALL cases filed by EPBs involved collect pollution levies and fines from small tertiary industries, court enforcement has not had significant effects on pollution reduction (Zhang et al, 2010).

 

 

Although the number of the ALL cases brought by citizens is relatively small, research has found that many lawsuits such as collective ones filed by citizens against EPBs for inaction have brought fundamental changes to EPB enforcement procedures and practices. It is these cases that demonstrate the ALL’s long-term potential for placing EPB enforcement activities under the supervision of citizens and courts. While the 1979 Environmental Protection Law had previously authorized criminal prosecutions of serious pollution accidents, the 1997 amendments to the Criminal Law, for the first time, formally introduced into the criminal code that violation of environmental law would be subject to prosecution. The Criminal Law now stipulates up to three years imprisonment and/or a fine for individuals involved in illegally discharging pollutants. The police are charged with investigating environmental crimes together with the prosecutor’s office. EPBs are consulted to facilitate the investigation and provide information. However, current laws are silent on such issues as liability for activities which are potentially dangerous and liability in the absence of either intent or negligence. Moreover, although a number of high profile cases of environmental crime have been submitted to the courts, this avenue has generally not been used very often due to difficulties in establishing causal relationships between pollution and harm, uncertainty over legal responsibility, and lengthy judicial procedures (Zhang et al 2010).

 

 

In recent years, the Chinese central government has increasingly emphasized the importance of public participation to improve local environmental enforcement and compliance. The most commonly used channel for citizen participations in environmental enforcement is the citizen complaints system. The majority of citizen complaints about the environment are lodged at local EPBs. The government has taken many important measures to encourage citizens to report environmental violations by polluting sources so that EPBs can undertake quick enforcement actions. Examples of such measures are the passage of the national Environmental Complaint Management Measures in 1990, the revisions in 1997 and 2006 respectively, and a mandatory requirement of the nation-wide installation of 24-hour telephone “hotlines.” As a result, the annual number of environmental complaints has increased from 111,359 in 1991 to 687,409 in 2006 throughout the nation, an increase of about 620 percent.

 

 

In many regions, accepting and responding to citizens’ complaints has become the

priority of local EPBs. EPBs are required to take complaints 24 hours a day and many EPBs instituted a “rotation system” whereby the entire staff of an EPB would rotate taking night shifts to answer phone calls. In urban areas, the EPB staff is required to arrive at the affected areas within 2 hours after receiving a complaint; this time limit extends to 6 hours in rural areas. To accommodate the high volume of citizen complaints, EPBs have each established internal structures and procedures to accept complaints. In many localities this includes a newly formed complaints department under the direction of the EPB administrative headquarters or supervision stations. This department is responsible for accepting letters, visits, phone calls, and e-mails, arranging follow-up inspections by EPB supervision station, and delivering responses to the complainants. In some localities, the reporting parties are rewarded financially for providing information on non-compliance (Warwick & Ortolano. 2007).

 

 

While citizen complaints have been a good supplementary source of information on

pollution discharges for local EPB, the complaint system has failed to identify in a timely or consistent manner some of the most important environmental violations that are also uncovered by EPB’s formal pollution data-gathering program. This has primarily resulted from the dominance of complaints about nuisance noise problems such as noisy air conditioning motors on apartment buildings. In practice, most reported complaints relate to noise pollution, followed by air and water pollution (Ma & Ortolano, 2000).

4. Challenges for China’s Environmental Enforcement#p#分页标题#e#

 

 

China has developed a robust set of environmental regulations and a comprehensive

administrative setup, but implementation has been hobbled by systemic impediments. First, local EPBs’ continuing dependence on local governments for funding, personnel arrangements, and resources has been a fundamental structural impediment to effective enforcement. The actions of EPBs are thus directed more by local governmental leaders than by MEP as those leaders’ performance has been evaluated using criteria that emphasize GDP growth, with little, if any, consideration of environmental performance. When stringent environmental enforcement has perceived negative impact on short-term economic development, local leaders frequently intervene in EPB’s work in order to ease environmental requirements. Such intervention has seldom had severe and predictable legal consequences, as China is still in its infancy of developing the “rule of law.” Second, Chinese environmental laws are imperfect, and, in particular, EPBs have insufficient enforcement authority and consequently have low status. Chinese environmental laws and regulations are generally vague, broad, impractical, and difficult to enforce. They have granted local EPBs a wide range of enforcement responsibilities without a solid legal basis for their work. The laws usually grant EPBs certain punishment rights without specific punishment provisions. When facing violations, EPBs sometimes lack solid legal provisions to support their punishment decisions. Meanwhile, Chinese environmental laws do not grant EPBs enforcement measures such as the ones that other government agencies such as tax bureaus have. Local EPBs’ status is regarded as low relative to other governmental departments. Third, EPBs’ insufficient funding, lack of qualified enforcement personnel and infrastructure have all contributed to poor enforcement (Lieberthal, 1997). The process of decentralization has resulted in more responsibilities delegated to local governments by the central government for addressing local problems without necessary means to fulfill them. This has created a revenueraising problem for local EPBs. Without sufficient funds from local governments, particularly ones in the less developed regions, many EPBs have continued to depend on revenues from the pollution levy to finance their operations. As a result, there has been a greater focus on collecting levies than pollution reduction. EPBs are also found to be involved in both conducting and preparing EIA documentation as well as assessing EIAs required by the environmental laws this creates conflicts of interests (Ma & Ortolano, 2000). 

Moreover, when local governments in many regions cannot even pay the salaries of local officials, training for EPB staffs appears to be a non-essential luxury. The lack of qualified enforcement personnel and infrastructure has become increasingly severe at the county level, where the widespread relocation of polluting sources into the outskirts of major cities has been taking place. In general, a county EPB is more dependent on its county government for resources than a city EPB is on its city government and has less funding, less qualified enforcement personnel, and poorer infrastructure than a city EPB (Lieberthal, 1997).

 

 

Fourth, the Chinese people represent an inefficiently and inadequately utilized resource in environmental enforcement. Although the number of environmental citizen complaints has increased dramatically in recent years, a significant portion of the complaints have focused on nuisance problems – as a result, such complaints have not provided as much important noncompliance information for local EPBs as might otherwise be expected. This has resulted in the misallocation of EPBs already constrained enforcement resources as local EPBs are required to respond to every single complaint timely and swiftly (Ma & Ortolano, 2000).

Last, but not least important, there have been ineffective court enforcement of EPB

decisions and insufficient court oversight of EPB enforcement activities. Many EPBs have largely relied on court assistance for collecting pollution levies and administrative fines; very few have used courts for pollution reduction purposes. Moreover, courts have received a significantly smaller number of lawsuits filed by citizens (compared with a large number of cases filed by EPBs) to challenge EPB decisions or against EPB’s inaction; this has greatly limited the judicial oversight of environmental administrative enforcement (Zhang & Ortolano, 2010).

 

Conclusion

 

 

 

References

Abigail Jahiel. 1998. “The Organization of Environmental Protection in China,” The

China Quarterly, no. 156, p. 757-787.

 

 Kenneth Lieberthal. 1997. “China's Governing System and Its Impact on Environmental Policy Implementation,” China Environment Series, v. 1, p. 3-8.

 

 Mara Warwick and Leonard Ortolano. 2007. “Benefits and Costs of Shanghai’s

Environmental Citizen Complaints System.” China Information, Vol 21, 237-268.

 

 Xiaoying Ma and Leonard Ortolano. 2000. Environmental Regulation in China:

Institutions, Enforcement, and Compliance, Rowman & Littlefield Publishers.

 

 Xuehua Zhang, Leonard Ortolano, and Zhongmei Lv. 2010. “Agency Empowerment Through the Administrative Litigation Law: Court Enforcement of Pollution Levies in Hubei Province, China,” The China Quarterly (forthcoming in June).

 

 Xuehua Zhang and Leonard Ortolano. 2010. “Judicial Review of Environmental

Administrative Decisions: Has It Changed Agency Behavior?” The China Journal

(forthcoming in July 2010).