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Environmental Regulation in the People's Republic of China: The Face of Domestic Law

Published online by Cambridge University Press:  12 February 2009

Michael Palmer
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In the post-Mao era, one highly significant dimension of China's official programme of reform and integration into the international economy has been a commitment to legal construction. This commitment has included a sustained effort to fashion a basic corpus of environmental protection law alongside supportive institutions, administrative norms and policies, in order to create a “basic legal system of environmental protection” (huanjing baohu de jiben falii zhidu).' In the eyes of the authorities in the People's Republic of China, such efforts reflect a degree of environmental concern that is unusually strong for a developing society.2 China's achievements, we are often told, must be placed in the context of the considerable difficulties the PRC faces in terms of the pressing need to raise living standards, a serious problem of over-population, a shortage of natural resources, an outdated industrial infrastructure and poor industrial management.3 Of course, viewed comparatively, the PRC's embrace of environmental protection law was somewhat belated,4 only properly commencing after its participation in the 1972 United Nations Conference on the Human Environment held in Stockholm. The subsequent expansion of environmental legislation and enforcement has been some-what erratic. Nevertheless, there appears to be a continuing intent to fashion a substantial body of environmental law, and concern with the construction and revision of this was further enhanced by China's participation in the 1992 UN Conference on Environment and Development, held in Rio de Janeiro. Following this, Premier Li Peng “made a commitment to conscientiously implement resolutions adopted at the Conference”5 and, given the PRC's very substantial size and population, a positive embrace of internationally acceptable standards of environmental welfare is highly significant for future global environmental protection. This article examines the principal features and significance of the PRC's domestic environmental protection law, and considers briefly the implications of the Chinese approach to environmental law for understanding the development of law more generally in post-Mao China.

Type
China's Environment
Information
The China Quarterly , Volume 156 , December 1998 , pp. 788 - 808
Copyright
Copyright © The China Quarterly 1998

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References

1. Jin, Wang, “Zhongguo huanjing baohu de jiben falu zhidu” (“The basic legal system of environmental protection in China”), paper presented at the China-Europe Legal Seminar, Beijing, 13–14 11 1997, p. 1Google Scholar.

2. In particular, the PRC's commitment is reflected in the fact that the Environmental Protection Law 1979 (for trial use) was one of the seven major law codes promulgated by the National People's Congress and its Standing Committee after the decision by the Chinese leadership to revert to more orthodox modes of legal development and to govern through a “rule of law.” This raft of legislation was thus regarded as a symbol of the beginning of a new era of legal construction, and it is particularly significant that environmental protection was one of the areas of social life to be given priority in the legislative programme. In addition, at the second national working conference on environmental protection held in 1983, environmental protection was made a basic national policy (jiben guoce) – see Chaofci, Yang, Huanjing baohu yu huanjing wenhua (Environmental Protection and Environmental Culture) (Beijing: Zhongguo zhengfa daxue chubanshe, 1994), p. 6Google Scholar.

3. Jin, Wang, “The basic legal system of environmental protection in China”, p. 1Google Scholar.

4. That is, it only effectively commenced in the mid-1970s, significantly later than many Western societies that were already beginning to address environmental issues in a sustained manner in the 1960s.

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11. As Schwartz has pointed out, this had been preceded by the enthusiastic campaign against the Four Pests in which a “war” was waged against rats, (lies, mosquitoes and sparrows - see Schwartz, Benjamin I., “Thoughts on the late Mao – between total redemption and utter frustration,” in MacFarquhar, , Cheek, and Wu, , The Secret Speeches of Chairman Mao, p. 33Google Scholar. The mass extermination of the latter, however, permitted other insect pests to burgeon and in 1960 sparrows were replaced by bedbugs as a target – see ibid. p. 379. The official view of the environmental impact of the Maoist approach may be illustrated as follows: “such stupidities as draining lakes and ponds, building dykes in the sea, cutting down forests and destroying pastureland in order to reclaim land for planting grain ended up causing inestimable damage to forestry, animal husbandry and fishery. Grave imbalances appeared in the rural economy and the natural ecology” (Hanxian, Luo, Economic Changes in Rural China (Beijing: New World Press, 1985, lr. Wang Huimin), p. 92)Google Scholar.

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19. Except at the township level, where environmental welfare is often the concern of an appointed “environmental protector.”

20. See Clarke, Donald, “The execution of civil judgments in China,” in Lubman, Stanley B. (ed.), China's Legal Reforms (Oxford: Clarendon Press, 1996)Google Scholar for an insightful analysis of the impact of local court funding on judicial work in enforcement.

21. Songqiao, Dong, “Yi fa baohu huanjing, jianshc meihao jiayuan” (“To protect the environment in line with the law and to beautify our homeland”), Zhongguo falu (China Law), No. 3 (1997), pp. 4–6, at p. 5Google Scholar. See also, more generally, Hong, Mei, “Legal gateways for environmental protection in China,” Review of European Community and International Environmental Law, Vol. 4, No. 1, pp. 22–32Google Scholar.

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27. For example, the 1988 Supplementary Provisions of the Standing Committee of the Standing Committee of the National People's Congress Concerning the Punishment of the Crimes of Catching or Killing Precious and Endangered Species of Wildlife Under Special State Protection.

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29. “1994 Xiamen shi huanjing baohu tiaoli” (“Regulations of Xiamen municipality for environmental protection”), Xiamen shi renda weiyuanhui bangongting, Xiamen shi renda wciyuanhui yanjiushi (compilers), Xiamen shi difangfagui huipian (1994–1995) (Collected Regulations of Xiamen Municipality (1994–1995)).

30. “Enterprises and institutions discharging pollutants in excess of the prescribed national or local discharge standards shall pay a fee for excessive discharge…and shall assume responsibility for eliminating and controlling the pollution.”

31. “An enterprise or institution that has failed to eliminate or control pollution by the deadline as required shall…pay an excessive discharge fee; in addition, a fine may be imposed on it on the basis of the damage incurred, or the enterprise may be ordered to suspend its operations or close down.”

32. “A unit that has caused an environmental pollution hazard has the obligation to eliminate that hazard and to make compensation to the unit or individual that has suffered direct losses.”

33. “Zhonghua renmin gongheguo shui wuran fangzhi fa, 1996” (“Prevention of water pollution law of the PRC, 1996”), in bianjibu, Zhongguo falii nianjian, Zhongguofalü nianjian 1997 (Law Yearbook of China 1997) (Beijing: Falii chubanshc, 1997), pp. 272–76Google Scholar.

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35. Among the most important administrative rules arc the 1986 Provisions on Environmental Protection Management in Capital Construction Projects, the 1990 Administrative Measures for Supervising Pollution by Exhaust Fumes from Automobiles, the 1991 Implementing Provisions on the Prevention and Control of Air Pollution, the 1992 Measures on Administrative Penalties for Environmental Protection, and the 1992 Administrative Measures for Marks of Environmental Supervision and Management and Enforcement of Law.

36. For a general account of the process of dispute transformation see Felstincr, William, Abel, Richard and Sarat, Austin, “The emergence and transformation of disputes: naming, blaming, claiming,” Law and Society Review, Vol. 15 (1980–1981), pp. 631 ffCrossRefGoogle Scholar. Sec also Palmer, Michael and Roberts, Simon, Dispute Processes: ADR and the Primary Forms of Decision Making (London: Butterworths, 1998), pp. 7–14Google Scholar.

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39. Arbitration proper is another possible mode of proceeding in civil cases, and there have been some calls in the Chinese legal press for the establishment of special arbitral bodies that would deal with environmental issues. However, at the moment, formal arbitration is only used in the PRC in cases of foreign-related ocean pollution – the arbitral body in such cases is the China Maritime Association Commission, and the governing law is ordinarily the 1982 Marine Environmental Protection Law and the Maritime Arbitration Rules.

40. See, for example, Robinson, David and Dunkley, John (eds.), Public Interest Perspectives in Environmental Law (London: Wiley Chancery, 1995)Google Scholar.

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47. Sec above, note 2.

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