In a story entitled “Arming up in the battle for a greener future,” China Daily today provides some additional information about the new MEP’s authority and initial priorities.
Money quotes:
While the ministry’s new responsibilities have not yet been announced in detail, Zhou summed them up by saying that it was going “to deal with mounting environmental woes caused by previously rapid growth, and to try innovative means and tools to curb new problems”. The solution, Zhou said, lay in measures including law enforcement and market mechanisms. . . . Giving top priority to law enforcement, Zhou said the MEP will have greater authority to crack down on environmental crimes by including the expansion of enforcement and monitoring teams.
The new MEP has also said it will put the quality of drinking and waterway resources as one of its top priorities. A new requirement for pollutants discharged into the Taihu Lake basin in Jiangsu province aimed at reducing and eliminating blue-green algae outbreaks in the region will be published soon, an MEP source said.
The ministry is also working to rid itself of the friction from other ministries. The old administration, for example, reportedly faced such difficulties in water pollution control. While several agencies, including the water resources, construction and agriculture ministries, had been involved in water management, the MEP is now expected to take full responsibility dealing with water pollution, sources close to the government reshuffle have said. Similarly, the MEP’s extended duties now include biodiversity management such as the approval and assessment of national ecological protection zones, the sources said.
And as part of its broader strategy to ensure that the country attains a balance of economic growth and environmental protection, the MEP is setting out to have local leadership and the public discard the idea that “development is king” - widely viewed as the main contributor of environmental degradation and a shortage of resources following the 30 years of the country’s rapid development.
Take away points:
- The Ministry has been granted some new responsibilities (all of which have not yet been revealed), including, having apparently wrested primary authority for water pollution from the water resources, construction and agriculture ministries. Good.
- More carrot and stick: increased resources devoted to enforcement and more market mechanisms to encourage environmental compliance. Good.
- A green public relations offensive is on the way to topple the “development is king” mentality among cadres and the masses. OK, but let’s hope it’s more successful than recent public relations efforts.
5 responses so far ↓
1 Tom Chow // Mar 28, 2008 at 11:46 pm
Charlie:
I just added a response to your comment on my blog, but I felt it would be worth cannibalizing (though repetitious) to post it here as well since it seems on topic. My thought is that a plaintiff’s bar would greatly enhance any sort of regulatory enforcement that MEP can come up with:
I also see the lack of an established plaintiff’s bar, which is encouraged to be private watch dogs. I know that my former chemical clients were far more careful because of the lawsuits. (major chemical companies back when I was doing environmental and toxic tort law) Yes, they did respect the law. But it was that fear of losing even more money to plaintiffs (and their lawyers) that made them very careful to be compliant. China seems to be far from having such a plaintiff’s bar, but if it ever learned to embrace and encourage such activity, I could see that having as much effect as strong regulatory enforcement, if not even greater effect.
2 Brad Luo // Mar 29, 2008 at 10:42 am
First, I’m thrilled that your blog is devoted to this important issue of environmental law(s) in China. It is a breath of fresh air (no pun intended).
Second, with tougher enforcement and a more coordinated regulatory system, situations might improve in certain areas, but another result might be that polluters will simply move away to areas of China where enforcement is lax. I’m referring to an analogy with the IP law and enforcement in China. Surely, I hope that won’t happen.
Third, I agree with Tom to a certain extent. True, increased cost of environmental pollution in the form of attorneys’ fees, damages, fines, etc., might lead to a reduction of pollution in certain areas (taking into consideration of my second comment above). But, I don’t think that kind of powerful plaintiffs’ bar will ever emerge in China as it did in the United States. Fundamentally, the Chinese concept of law, order, rights, obligations differ from those in the United States. I concede that many more people are using the courts to protect themselves, but in the main, people in China are not going to use the Courts to enforce their rights, thereby effecting social changes and corporate social responsibility. At least, not very soon.
Great blog, Charlie!
3 cmcelwee // Mar 29, 2008 at 12:13 pm
Thanks guys! I agree with both of you on the plaintiff’s bar issue. I agree with Tom that the real threat of civil lawsuits for damages would have a salutary effect on compliance efforts. The laws themselves encourage such suits; some Chinese environmental laws have imposed very plaintiff-favorable burdens of proof for civil damage actions. I agree with Brad, however, that we are unlikely to see the growth of a significant plaintiff’s bar in the near future. If the MEP can’t get its laws and regulations enforced at the local level, the private lawyer is going to have an even harder time getting and keeping his action in court. And, as Brad notes most Chinese do not yet consider lawsuits as viable remedial options for any number of reasons. Things will change, but slowly. Now if we could just figure out a way to encourage civil lawsuits in China without creating plaintiff’s lawyers. . . .
4 Brad Luo // Mar 30, 2008 at 12:20 am
“Now if we could just figure out a way to encourage civil lawsuits in China without creating plaintiff’s lawyers. . . .”
Now, that’s an idea:)
Costs are always a concern. Somehow, I don’t see China following the European model (Germany in my mind) of attorneys’ fees arrangement, i.e. the loser pays the fees on both sides. Governments set aside funds to pay for attorneys’ fees for “indigent” plaintiffs. It is hard to imagine, although not impossible, for China to do the same (whether China current has this system is unknown to me)(do you know?).
On the other hand, contingency fee as as used in the U.S. seems a pretty good thing in the context of creating a legal environment conducive to enforcing rights, at least courts will be made more accessible. Of course, that will unavoidably result in the creation of “plaintiff’s lawyers.”
Is there a middle ground? Maybe China will create something “revolutionary,” enabling plaintiffs to avail themselves of the benefits of the law yet avoid creating plaintiff’s lawyers (assuming they are as “unpleasant” as Charlie hints).
I think so. How about only allowing plaintiffs to sue on environmental claims on a contingency fee basis? How about lowering the cost of filing such actions? Allow bar associations, i.e. the environmental sections, to play an active role in coordinating plaintiff’s actions.
5 cmcelwee // Mar 30, 2008 at 6:51 pm
Brad, I’m only joking about plaintiff’s lawyers (why some of my best friends are plaintiff’s lawyers), but you raise good points. Some of the private party mechanisms you mention are already in place in China. Here’s a link to a Wilson Center paper that deals with the role of Chinese environmental lawyers in resolving “water conflicts,” but I think it is generally applicable to other environmental actions: http://www.wilsoncenter.org/topics/pubs/chinatour1.pdf. It is my understanding the situation has changed slightly since the publication of this article in that there are now more restrictions on the pursuit of class actions.
Another fascinating area is the possibility of lawsuits in the US as a result of environmental harm to people and the environment in China. This is something US corporations operating in China need to be cognizant of.
All in all a fascinating topic I want to continue to follow.
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