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China Environmental Law Rewrite Reflects Conflicted Agenda

A third draft of proposed amendments to China’s Environmental Law was tabled at the bi-monthly meeting of National People's Congress (NPC) Standing Committee yesterday, addressing some of the criticism of the previous draft but opening new areas of controversy.

The key criticism of the last draft, that it severely limited the right to bring public interest litigation against polluters, has been reversed but only somewhat.

While by some readings of the 2nd amendment draft it appeared that only the state-backed All-China Environmental Federation would be able to sue, the 3rd draft says environment agencies (read NGOs) that have registered with the Ministry of Civil Affairs for five years running and are deemed to have a good reputation will be able to file lawsuits against polluters. At this time 13 agencies are qualified to file a lawsuit if the amendment becomes law.

According to Yang Sujuan, deputy head of the Environmental and Natural Resources Law Research Institute at the China University of Political Science and Law, however, the five-year requirement is a significant impediment for many environmental NGOs as registration procedures have been open to most organizations nationwide for less than two years. She also has concerns about the "good reputation" criterion as it is unclear as to what a good reputation is and which organization is entitled to give this accreditation.

It remains unclear whether China’s first ever public interest case against a polluter would have been allowed to proceed if the latest draft of the Environmental Law amendments had been enacted at the time.

Another legal expert told the China Daily that the 3rd draft is actually worse than its predecessor in restricting organizations qualified to initiate public interest cases. At least 30 organizations might have been qualified if all China’s provinces, municipalities and autonomous regions established their own environment federations, according to the expert, who asked not to be named.

The new draft amendments put more responsibility on government officials to protect the environment, with a new clause stipulating that governments at all levels should increase financial input in improving the environment and preventing pollution, and use funds in a more efficient way.

The latest draft also says that that the state should support the development of the environmental protection industry with policies and measures in finance, taxation, pricing and procurement.

Furthermore, the draft amendment also aims to increase the importance of environmental protection in the evaluation of government performance. It says government should view environmental protection work as a criterion when evaluating related departments and governments at lower levels, as well as officials in charge of subordinate authorities. The results should be open to the public, says the draft amendment.

The amendment also tries to address relations between economic development and environmental protection, adding a new clause which says related departments of the State Council, or the cabinet, and provincial-level governments should fully consider the environmental impact and listen to expert opinion when making policies.

Currently, environmental impact reviews focus on individual projects, but no environmental restriction has been placed on overall development plans. Experts said the proposed amendment is a good step forward.

"It is important to assess the environmental impact of government policies and to evaluate how much impact a region can withstand to avoid any harm from government policies," Chen Guoying, director of the Environmental Protection Bureau in Hebei province, told The China Daily.

Jin Hua, a member of the NPC Standing Committee, said some government policies have led to large-scale, even irreversible, ecological damage. "We have drawn a profound lesson from this. Arbitrary government decisions without taking the environment into consideration should never be allowed," she said.

Cao Mingde, an environmental law professor at China University of Political Science and Law, said a review of government strategies is important because it can influence a generation. Reviews on a project-by-project basis may only affect a community.

He noted that, more than a decade ago, the environmental impact assessment of government strategies included in an early draft of the 2002 Law on Appraising of Environmental Impact, but the article was removed due to strong objections from government.

Cao told China Daily that it is "still unlikely for the government to endorse environmental impact assessments of government strategies at the moment. It seems the legislature is settling for a compromise on the issue."

Others experts are worried that that it may be too difficult to apply new strategy review procedures.

"There have already been loads of rules and regulations concerning environmental impact assessments. The problem is that such rules and regulations have never been implemented strictly," said Zhao Zhangyuan, a former member of the Ministry of Environmental Protection’s environmental and engineering appraisal center. He said the environment can be improved if all existing rules and regulations are heeded.

Monday's draft does make environmental assessments of projects stricter. It holds both the environmental assessment firm and the company undertaking a project responsible if the report they deliver about a project is found to have faults.

Zhao approved of this clause and described the country's environmental impact assessment industry as "messy". He suggested that government bodies responsible for overseeing the environment should also be held accountable if they approve of projects that later turn out to be major polluters.

China’s Environmental Law was first proposed in 1979 and formally enacted in 1989, since when it has never been amended. When the NPC set up its Environmental and Resources Protection Committee in 1993 the plan was to revise the law, but this didn’t happen at the time.

The current move to amend the law was initiated at the beginning of 2011 and was due to have been completed earlier this year at the annual meeting of the full NPC. Continuing conflict between different interest groups within the Chinese government look like keeping the amendments in play for some time to come, with reports suggesting a 4th draft is imminent.

It seems unlikely, however, the final amendment of the Environmental Law will iron out China’s environmental conflicts. Since the early 1990’s the NPC has passed nearly 30 other laws regarding the environment, resources, energy, clean production and the circular economy, led by the ministries for land, water, marine and forestry Ministries, among others.