China's New Environmental Law and the U.S. Clean Air Act
China recently overhauled its basic environmental law in a way that brings it closer to the structure of the U.S. Clean Air Act. The new law also contains a provision authorizing public interest litigation by certain Chinese NGOs -- this is a huge step forward. You can read a summary of the law by my colleague Wang Yan here.
In the U.S. system, the EPA sets national air quality standards for the so-called criteria pollutants such as small particulates (PM 2.5) and ozone (smog). A state or region that does not meet these federal standards must prepare and get EPA's approval for a plan to reach the standards by a certain date.
In China, it is the job of the State Council to establish national environmental quality standards (Article 15, China Environmental Protection Law). Provincial governments may set stricter limits. Similar to US practice under the Clean Air Act, regions in China that have not met the national standards mist formulate an attainment plan showing how they will meet the standards by a certain date (Article 28).
In addition, under new Article 44, if areas exceed their quota for discharge of pollutants or have not attained the environmental quality targets set by the State, the Chinese equivalent of the US EPA must suspend the approval of required environmental reviews (called environmental impact assessments in China) for projects that will increase the discharge of key pollutants. A similar remedy in the US, where the federal government steps in to control local air quality directly and may suspend the delivery of federal transportation funds, occurs very rarely. In addition, under new Article 60, an offending company may be shut down.
Under the US clean Air Act, a polluter may be subject to daily fines. For the first time, this principle appears in new Article 59, providing that a Chinese administrative agency that makes an order that is being violated may impose daily fines on the polluter until the violation is cured.
Article 63 of the new Chinese law goes beyond US law in providing that responsible managerial personnel of a company may be "detained" under a variety of circumstances, including refusing to stop construction when ordered to do so because no environmental review had occurred (not uncommon in China), discharging pollutants without a permit, falsifying emissions data, or illegally using pesticides, herbicides or fungicides.
Also new is a provision that legitimizes public interest litigation in China under certain circumstances. We are used to this in the US -- indeed, this is what NRDC was created to do. An earlier version of this provision limited standing for public interest litigation to the All-China Environmental Federation. Now, Article 58 provides that:
"As to acts of environmental pollution and ecological disruption that harms the public interests of the society, social organizations meeting the following qualification may bring a lawsuit in a people’s court:
"Registered according to the law at the competent department of civil affairs of the people’s government of a municipality that is further divided into more than one district.
"Specifically engaged in the public interest work of environmental protection for more than 5 consecutive years and having no records of violations of the law...
"The social organizations that initiate the lawsuit shall not seek economic gains through lawsuits."
Estimates of the number of NGOs meeting these qualificationS average around 300. NRDC is not one of them -- we do not practice law in China.
In addition, Article 58 requires the people's court to accept lawsuits "initiated by social organizations meeting the qualification prescribed in the preceding paragraph..." This is a big change because, previously, Chinese courts had standardless discretion to refuse to accept cases for filing.
Implementation of this new law will take time. NRDC and our China program hope to be at the table to help.
I would like to thank Prof. Mingquin You of the Zhongnan University of Law and Economics (http://www.znufe.edu.cn/eng/) for his translation of and advice about the new Chinese environmental law, and also for his great hospitality on my recent trip to Wuhan, China.
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