At a forum last week in Shanghai devoted to the “Legal Provision for Building a Environment-Friendly Society,” the inadequacies of China’s environmental laws were discussed. According to my favorite source for news and opinions, the Shanghai Daily (this link will soon be dead and the article will be behind a pay wall), Bie Tao, a senior MEP official responsible for legislation, reported that
The current law [it is unclear whether he was referring to China's environmental laws in general or specifically the Environment Protection Law] can do little to influence the government’s policy making process.
“For instance, to foster an ‘easy-going’ ambience for investors, some government decree that environmental departments should be allowed to enter industrial parks only once a year - and with prior permission at that,” Bie said.
This makes some “high-tech” industrial parks “sinks of iniquity,” which provides a haven for heavily polluting enterprises.
As grassroots environmental enforcement monitors have to negotiate with the security guards before they are allowed to enter any factories, the guilty parties have ample time to start up their dormant waste treatment facility, Bie said.
Some factories have hidden sewage discharging pipes installed while the plants are being built, and unless the whole factory is pulled down, there is little chances of these criminals being caught red-handed.
Other problems include:
- Inadequate penalties that make it cheaper to pollute and pay the fines, than install the equipment necessary to prevent the pollution.
- Unclear legal mechanisms which make it difficult for victims of pollution to be amply compensated.
- Too much discretionary power in “prosecutors” which makes it easy for them [presumably when improperly influenced] to bend or ignore the law.
What to do? The article suggests “codification.” Excuse me? Come again? Codification?
A remedy for these problems is to codify the current environmental law, as proposed by professor Zhang Zitai, who heads a research center for environmental legislation at Fudan University.
Whoa Mr. Shanghai Daily commentator, put down those big legal words before you hurt somebody!
Codification of Chinese law in any subject area would be a very, very good thing. I would volunteer to help put together a Chinese Environmental Law code. Codification, for instance, would make it easier to amend Chinese laws. Thus, it would be easier to fix the penalty provisions of China’s environmental laws to make it cheaper to stop polluting than pay fines. But, codification alone will not help to correct any of the problems identified above. In fairness, the Shanghai Daily piece recommends codification and “tightening” of China’s laws. The tightening part (not addressed in the body of the article) may help, the codification bit won’t get you very far.
10 responses so far ↓
1 Dan // Nov 13, 2008 at 3:14 pm
What about double codification?
2 cmcelwee // Nov 13, 2008 at 3:56 pm
You’re right of course Dan; “double codification” (cf. “barely legal”) would certainly help with the secret discharge pipes, but what would it do for the “sinks of iniquity?”
3 Adam Minter // Nov 14, 2008 at 12:39 pm
Whether codification occurs or not, it seems to me that the real issue will continue to be the most difficult one: enforcement.
If I could wave a magic green wand over China, I’d cast a spell that took responsibility for enforcement of national environmental standards from everyone but the national authorities (no more local corruption of regulators). And then, for my next trick, I’d add roughly 50,000 employees to SEPA (or whatever they’re calling it now), to make it roughly equal in enforcement staff to the US EPA (SEPA currently has less than 1000 staffers, total). And then, for my final trick, I’d make sure that anybody involved in enforcement earns a salary high enough (RMB 15,000/month, starting?) to make them think about how much they’ll lose if they’re ever tempted to take a bribe.
Just need to find that magic green wand …
4 cmcelwee // Nov 15, 2008 at 5:04 pm
Adam: you’ve summed up the needed changes nicely. It’s really not that complicated. Thus, I think its fair to conclude that the national government doesn’t yet value a clean environment above some of its other priorities. We should get together and talk about this over a Tender Beef Pentagon; I’ll contact you off-blog.
5 Joel B. Eisen // Nov 15, 2008 at 9:43 pm
Hi Charlie:
I’m finding this site (this discussion & the climate change white paper, etc.) very informative. I am going to be in Beijing in Feb. through July on a Fulbright teaching energy and environmental law at CUPL. Let’s communicate off-site about ways to get in touch.
– Joel
Professor Joel B. Eisen
University of Richmond School of Law
Richmond, VA, USA
6 Greg // Nov 16, 2008 at 5:48 pm
@ Adam and Charlie
Officials from Beijing are no less vulnerable to corruption or harm. They aren’t paid much and have little if any authority. They also must travel with PSB or PAP contingents to far flung areas because in rural China, no one can hear you scream. The local power structure in many instances has absolute power and support from the provincial capital to boot.
Stronger federal powers is a good idea but there is a monkey wrench in the machine: Provincial officials have been coming to US state governments and learning the art of autonomy by filling in as government workers in minor roles. When they return to their province, not only do they have a better idea of how to run their province with greater autonomy, they also carry copies of US state constitutions and the US constitution with complete and accurate translations into Chinese to wave in front of Beijing’s face.
All of China’s provinces are demanding greater autonomy in running their economies, budgets, attracting companies etc and aren’t waiting for edicts from the Central Committee to get started. They LOVE how US states and blocs of states can operate with so much freedom.
And this will be another great big problem for Beijing and its “to do” list regarding sustainable economic development.
7 cmcelwee // Nov 17, 2008 at 7:02 pm
Greg: Good point, but I read Adam’s “magic green wand” conceit as transcending the need to deal with the structural weaknesses in China’s environmental governance structure and, well, magically, imposing a strong national regime with the ability to whack local recalcitrants into line. I may be wrong, but I think a “magic wand” is likely to be more effective against an agressive Chinese bureaucrat than copies of the US and California constitutions, however well translated.
8 Greg // Nov 18, 2008 at 3:50 am
Well Charlie, China’s central rulers have often used a magic wand in the form of a sword or gun. That may be what it takes because that is often the only thing local boss’ understand.
9 cmcelwee // Nov 18, 2008 at 6:10 pm
Greg: I’m in complete agreement with you about local obstructionism. I think the most prevelant form, however, is not the overtly confrontational, but the smiling “yes man.” You want a reduction in SO2, we’ve got a reduction in So2. It is much harder to combat the “yes man,” because its harder to prove he’s being an obstructionist. On the other hand, a truly confrontational local leader will ultimately get squashed if push comes to shove, but I don’t think any local leader would yet let it come to shove. Therefore, I think a situation a la Little Rock 1957 would be a little surprising in China, but not unthinkable I guess if things got really bad. Very interesting discussion!
10 Greg // Nov 20, 2008 at 1:49 pm
Charlie:
My impression of local officials in China (and a few other places I merely visited) is a dual “yes man” to higher ups and an outright thug to those beneath them. Local leaders dare not push central authorities too far, instead they use intimidation to mask what is going on in their local area. The GLF is a good illustration of that. The reporting of how the “one child policy” was dealt with is another.
Environmental inspectors from Beijing have little if any real power and everyone knows that. If they would show up with a couple of higher level PSB guys or a squad of PLA soldiers, the behavior of local officials would surely change. But one person with some sample vials and a clip board is in a perilous situation.
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