Protecting who?

Changes to the Environmental Protection Law have implications for the economy and businesses large and small, not to mention public health and quality of life. But changes have not gone far enough, writes Nicolas Groffman

In May 2014, China released a revised version of its 1989 Environmental Protection Law, offering hope to those who have suffered from noxious air, or polluted land and water – or so it has been said. A more realistic view would be that this law, which comes into effect in January 2015, offers almost nothing of value for environmental protection in China.

There is very little in this law that can’t be found in existing laws and regulations, and those who saw earlier drafts have been disappointed at how much was removed before the law was promulgated. Yes, the new law has provided for stiffer fines – but only in cases where the local government deems it appropriate to levy them. Since the right to shut down a polluting factory already existed – and that hardly ever happened – then this new fining right won’t change much. In fact, one key problem faced by enforcers is that factories can simply shut their gates on them without fear of reprisals.

The revised law also gives NGOs the right to bring public interest litigation and to have these actions accepted by the courts. But that applies only to NGOs that are registered with the civil affairs bureau in their respective location – and effectively controlled by vested interests where the pollution is occurring.

Nicolas Groffman is a partner at DLA Piper’s Shanghai office. He has lived and worked in mainland China for 20 years, and handles foreign direct investment and disputes