China’s bold new environment law will likely remain hamstrung

By China Report

On January 1, China’s new environmental protection law came into effect, marking the first time that China has incorporated environmental protection into its legislative efforts to foster social development.

Under the new law, companies that cause pollution will be subject to harsher punishments and tougher fines. The law also stipulates specific measures to safeguard the public’s right to environmental information, and to protect from retribution those who report pollution.

However, despite this progress, the new law fails to address some major issues behind China’s deteriorating environmental situation. Firstly, as the new law has been given no special jurisdiction, it may conflict with existing laws, including the country’s agriculture law, forestry law and water law, which fall under the administration of different ministries. As the environmental law does not take priority, other ministries will be able to challenge perceived contradictions between the laws.

Secondly, the new law does not address the issue of power structures within these agencies, jeopardizing the effectiveness of the law’s implementation. A major issue with China’s environmental problems is that the institutional framework regarding environmental protection is fragmented, with a variety of agencies having overlapping authority. Although the Ministry of Environmental Protection is often held responsible for all environmental issues, its power is actually rather limited, as other agencies, such as the Ministry of Land and Resources, the Ministry of Water Resources, the Ministry of Agriculture, the National Bureau of Oceanography and the State Administration of Forestry all have a major stake in environmental policy.

Thirdly, the new law does not clarify whether the public has a basic constitutional right to a livable environment. Although China’s new environmental law recognizes that individual citizens and social organizations have a right to access to “environmental information,” the right of litigation is limited to a handful of government-recognized social organizations, effectively excluding the majority of the general public from participation in the supervision of the government’s environmental protection efforts.

Finally, the new environmental law does not address the lack of independence of environmental protection authorities at the local level, a major contributing factor behind China’s environmental problems. As local environmental protection bureaus continue to rely on local governments in terms of personnel and finance, their implementation of the new law may continue to be hamstrung.  Despite tougher punishments and higher fines for polluting companies stipulated in the new law, local environmental authorities still need the approval of local governments to implement punitive measures. As polluting companies remain an important source of local revenue, local governments lack the incentive to implement the new law seriously.

To address these problems at their root, China needs to place environmental protection at the core of central policy. In doing so, China would elevate the status of its environmental law to form part of the country’s Basic Law. Moreover, it needs to reshuffle the environmental and related agencies to establish a unified and effective environmental protection institution to coordinate environmental authorities at different levels.

Besides legislation, more systemic institutional reform is required to effectively address China’s deteriorating environment.


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