China Environmental Law

China’s Measures for the Disclosure of Environmental Information, adopted by MEP, become effective tomorrow (May 1) (now under “Laws & Regulations” in right sidebar). We have alluded to them previously, and will spend a little more time with them today. These MEP regulations operate in conjunction with (although they were promulgated before) the general Disclosure of Governmental Information, adopted by the State Council (which can be found here), which also become effective May 1.

The purpose of the State Council regulations (Article 1) is to ensure that

citizens, legal persons and other organizations obtain government information in accordance with the law, enhance transparency of the work of government, promote administration in accordance with the law. . . .

The State Council regulations provide general requirements as to the type of information that should be disclosed (Articles 9 through 12) and the procedures for disclosing it (Articles 15 through 28). Basically, the regulations envision a set of information that is routinely and automatically disclosed by agencies and also set forth a procedure for citizen requests for the disclosure of specific information. They provide plenty of reasons for justifying non-disclosure (see, e.g. Articles 5 through 8, Article 14), but they are a huge step forward in terms of transparency at the administrative level. 

The MEP environmental-specific regulations are designed (Article 1) to

propel and regulate the disclosure of environmental information by administrative departments in charge of environmental protection (”environmental protection department(s)”) and by enterprises, maintain the rights and interests of citizens, legal persons and other organizations to obtain environmental information and promote the public’s involvement in environmental protection. . . .

The regulations define (Article 2) both “government environmental information”

information made or obtained by environmental protection departments in the course of exercising their environmental protection responsibilities and recorded and stored in a given form

and “enterprise environmental information”

information recorded and stored by enterprises in a given form and relating to environmental impact arising from enterprise operational activities and enterprise environmental behavior.

Obviously, “government environmental information” can include information provided by private entities or enterprises which has been submitted by them to the relevant agency.

“Environmental protection departments” are required (Article 11) to disclose “on their own initiative” the following “government environmental information” to the public:

(1) Laws, regulations, rules, standards and other regulatory documents with respect to environmental protection;

(2) Environmental protection plans;

(3) Environmental quality status;

(4) Environmental statistics and environmental investigation information;

(5) Emergency plans for and forecast, occurrence and handling of sudden environmental events;

(6) Information on allocation of total emission quotas of major pollutants and its implementation, information on issuance of pollutant emission permit and results of quantitative examination of comprehensive improvement of urban environment;

(7) Information on type, volume and disposal of solid waste produced in medium to large cities;

(8) Information on the acceptance of environmental impact assessment documents of construction projects, results of examination and approval of environmental impact assessment documents accepted and results of environmental protection inspection and approval upon completion of construction projects, items, basis, conditions, procedures and results of other environmental protection administrative licenses;

(9) Items, basis, standards and procedures with respect to the collection of pollutant emission fees, amount of pollutant emission fees payable by and amount actually imposed on polluters and information on exemption, reduction and postponement of payment of pollutant emission fees;

(10) Items, basis, standards and procedures of environmental protection administrative charges;

(11) Letters, calls and complaints from the public about environmental issues or environment pollution caused by enterprises investigated to be true and their handling results;

(12) Information on environmental administrative penalties, administrative reconsideration, administrative lawsuits and enforcement of administrative compulsory measures;

(13) List of enterprises with severe pollution and whose emission of pollutants is greater than the national or local emission standard or whose total emission of pollutants is greater than the quota of total controlled emission determined by local people’s government;

(14) List of enterprises that have incurred serious or extraordinarily serious environmental pollution accidents or events, list of enterprises that refuse to enforce effective environmental administrative penalty decisions;

(15) Results of examination and approval of environmental protection creation;

(16) Information on the structure, responsibilities and method of contact of environmental protection department; and

(17) Other environmental information that shall be disclosed according to laws, regulations and rules.

“Citizens, legal persons or other organizations” can also  shall request environmental protection departments to release information identified by the requester in accordance with Articles 5 and 16. As with the general State Council rules, there are a several of reasons an agency can cite to justify non-disclosure (e.g., Article 12).

Of course some information maintained by an agency may have been provided or obtained from a private, regulated entity. Occasionally this information may be considered proprietary or confidential information by the private entity. How protected is this information from public disclosure?  Article 14 of the State Council regulations provides that

Administrative agencies may not disclose government information that involves state secrets, commercial secrets or individual privacy. However, government information involving commercial secrets or individual privacy may be disclosed by administrative agencies with the consent of the rightholder(s) or if administrative agencies believe that non-disclosure might give rise to a major impact on the public interest.

Article 12 of the MEP regulations parrots this language. There are no provisions for challenging a determination that confidential information should be disclosed. Given this language (and a variety of other reasons), as a practical matter, you should operate on the assumption that any information you provide to a Chinese governmental entity (even if marked confidential) will become public.

Under the MEP regulations “enterprises” are “encouraged” (Article 19) by the State to “voluntarily disclose” the following enterprise environmental information:

(1) Their environmental protection guidelines, annual environmental protection objectives and achievements;

(2) Their total annual resource consumption;

(3) Information on their environmental protection investment and environmental technology development;

(4) Type, volume and content of pollutants discharged by them and where the pollutants are discharged into;

(5) Information on the construction and operation of their environmental protection facilities;

(6) Information on the handling and disposal of waste generated from their production, information on recycling and comprehensive use of waste products;

(7) Voluntary agreement entered into with environmental protection departments for environment improvement behavior;

(8) Information on their performance of social responsibilities; and

(9) Other environmental information voluntarily disclosed by them.

Pursuant to Article 20, if an enterprise is included on the list of enterprises with severe pollution and whose emission of pollutants is greater than the national or local emission standard or whose total emission of pollutants is greater than the quota of total controlled emission determined by local people’s government (the “name & shame” list)(as referenced in item 13 of Article 11 above), it “shall” disclose to the public the following information:

(1) Its name, address and legal representative;

(2) Name of major pollutants, method, content and total volume of emission, information on emission that has surpassed the standards or total emission that has surpassed the prescribed limits;

(3) Information on the construction and operation of its environmental protection facilities; and

(4) Emergency plans for sudden environmental pollution accidents. Enterprises shall not refuse to disclose environmental information referred to in the above paragraph under the excuse of confidentiality of trade secrets.

Two cheers for China’s Freedom of Information Act! As with most Chinese regulations, the proof will be in the actual implementation.