The long-awaited amendment of the 1989 Environmental Protection Law (EPL) will likely emerge as a historic moment for environmental protection in China. The EPL amendment process had to consider and clarify a range of critical issues in environmental protection, including: the relationship between environmental protection and economic development, levels of government responsibility for environmental protection, environmental information disclosure, environmental public interest litigation, pollutant discharge permits, environmental protection departments' enforcement authority, liability of environmental assessment agencies and monitoring bodies for falsifying information, and environmental health.
Over the years, NRDC China Program's Environmental Law Project has worked to promote environmental transparency, public participation, environmental public interest litigation, pollutant discharge permits, and strengthening penalties for polluters. We are extremely pleased to see that breakthroughs on all of these issues have been reflected in the new EPL.
1. Basic concept of the Environmental Protection Law
The new EPL elevates the importance of environmental protection; "the work of environmental protection must be coordinated with economic construction and social development" has been changed to "the work of economic and social development must be coordinated with environmental protection." For the first time, legislation has confirmed the prioritization of environmental protection over economic and social development.
2. An entire chapter is now dedicated to environmental information disclosure and public participation
The new EPL dedicates an entire chapter to provisions for environmental information disclosure and public participation. It makes specific provisions for the disclosure of environmental supervision information, monitoring information, corporate environmental information, and also for citizens’ access to environmental information and participation and supervision of environmental protection. This innovation reflects that the public is playing an increasingly important role in environmental protection, and the government is applying a more open approach in its environmental protection work.
3. Established environmental public interest litigation and granted standing to qualified environmental protection organizations for environmental public interest litigation
The new law establishes the legal status of environmental public interest litigation, and grants plaintiff standing to social organizations which have registered with the governmental civil affair departments above city level, have specialized in environmental public interest activities for more than 5 years, and do not have any law-breaking record. To tackle difficulties in having cases accepted by courts, the new law also clearly provides that courts must accept cases filed by qualified social organizations in accordance with the law. This breakthrough is a strong supplement to the public interest litigation clause in the Civil Procedure Law and provides strong legal support to encourage public participation in environmental protection.
4. Established pollutant discharge permit system
The new law established the pollutant discharge permit system and clearly stipulates that enterprises, institutions, and other production operators under the pollutant discharge permit management system must discharge pollutants within the stated range of emissions on their permits. Without obtaining emission permits, an operator is not allowed to emit any pollutant. This is the first time that pollutant discharge permit system is acknowledged by the ELP, and it will promote implementation of pollutant discharge permit management nationwide.
The new law provides that the nation sets ecological bottom lines ("red lines" as referred to in the law) implement strict protection for key ecological function zones and ecologically sensitive or vulnerable zones. Also, according to the law, governments above provincial level are obliged to organize investigation and evaluation on environmental situation, and establish early warning mechanism to detect capacity of environmental and resources.
The new law requires that environmental protection departments must suspend approval of construction projects' Environmental Impact Assessment (EIA) documents in areas where pollutants have exceed national total emission control targets of major pollutants; or in areas which failed to accomplish national environmental quality objectives.
5. Enhanced punishments for violations and established daily penalties
The new law has established a "blacklist" system, which records environmental law violation information in a new record system and a list of violators will be released to the public. More importantly, the new law has adopted daily penalties, providing that from the next date when a competent administrative agency ordered a violator to correct its illegal behavior but the violator fails to, the agency may order continuous penalties on a daily basis, according to the original amount of penalty. The new law also provides local governments with more discretion to increase what types of activities may incur daily penalties. Adopting daily penalty will significantly raise the punishment on violators, and will effectively prevent and deter polluters from violating laws.
6. Strengthened enforcement authority for environmental protection departments; strengthened administrative enforcement measures
The new EPL clearly strengthened the authority of environmental protection departments. First, it clarifies the administrative enforcement measures environmental protection departments can take. For the illegal discharge of pollutants causing or likely to cause severe pollution, environmental protection departments above the county level and other departments responsible for environmental supervision or management can close down or seize facilities and equipment causing the pollution.
Second, it clarifies the legal status of environmental monitoring institutions entrusted by the competent departments of environmental protection administration, empowering them to make on-site inspections of enterprises and other producers that discharge pollutants.
Third, it provides for four types of serious cases of environmental violations where responsible persons could face administrative detention, including: if their company didn't undertake an EIA and refused to suspend production after being issued a ban; discharged pollutants without a pollutant discharge permit; falsified monitoring data; continued to use pesticides banned by the state after being ordered to make corrections.
These provisions give teeth to environmental protection departments, and will strengthen the deterrent effect of environmental law.
(This post was co-authored by NRDC Environmental Law Project)
