Three hot topics to consider along with the Environmental Protection Law

The Ningbo PX project incident that occurred in October drew the attention of the public again to environmental problems. At this juncture, when comments are being sought nationwide on the bill to amend the Environmental Protection Law, this column will explore three topics of hot debate among the public.

Public interest litigation

From murky to clear. The original Civil Procedure Law restricted litigants to “immediately interested parties”, resulting in a number of environmental pollution incidents in which numerous people were harmed without, however, any obvious immediately interested parties, making it impossible to resolve the problem through civil litigation. For example, in the 2005 Songhua River pollution incident, although a scholar attempted to institute an environmental public interest action, the local court refused to place the case on the docket, on the grounds of lack of standing.

This year, the amended Civil Procedure Law finally adds a provision reading: “With respect to acts that harm the public interest, such as pollution of the environment, infringement of the lawful rights and interests of the mass of consumers, etc., the authorities specified in law and relevant organisations may institute legal actions in People’s Courts.”

This has been viewed as an important milestone in the establishment of an environmental public interest litigation system in China. However, the Civil Procedure Law is silent on who these specific “authorities specified in law” and “relevant organisations” are, causing much wringing of hands among many in the profession.

In existing legislation, only in the Marine Environment Protection Law can a pertinent provision be found: “Where the marine ecology, marine product resources or a maritime protected zone is undermined, causing the state to incur a material loss, the authority that exercises marine environment oversight powers in accordance herewith shall represent the state in demanding damages from the party responsible.” However, the foregoing provision is limited to the domain of marine ecology, marine product resources and maritime protected zones.

The current effort to revise the Environmental Protection Law could help to clarify the environmental civil public interest litigation system, for example, the vague provision of the Civil Procedure Law concerning litigants being “authorities specified in law and relevant organisations”. With respect to the “authority”, it could, borrowing from the Marine Environment Protection Law, perhaps be defined as the “authority that exercises environmental oversight powers in accordance herewith”. With respect to “relevant organisations”, as the professional requirements of environmental public interest litigation are relatively high and the public interest character strong, specifying them as “public interest organisations lawfully registered in the PRC that devote their efforts to environmental protection” would be most appropriate. Such provisions would also be consistent with practice in developed nations internationally.

How helpful are EIAs?

From construction to operation. The environmental impact assessment (EIA) system implemented since 1979 mainly applied to construction projects, and since the implementation of the Environmental Impact Assessment Law in 2003, the system has gradually been implemented in the planning sector. But that means business projects that do not involve construction or a planning stage causing great damage to the environment are not properly regulated.

In the past, we have assisted an environmental protection administration and a government in dealing with an environmental pollution case involving an iron powder trading company. The company did not fall into the category of production enterprise, and did not need to carry out project construction, only leasing a yard for storage and the buying and selling of the iron powder.

Accordingly, pursuant to existing laws, no EIA needed to be conducted in respect of the company’s establishment and operation, and it could secure its business licence directly from the administration for industry and commerce without first securing a permit from the environmental protection authority. However, in the course of its operations, the loading and unloading of iron powder generated tremendous noise and extremely serious air pollution, causing great suffering to the local population. If the enterprise had been required to undergo an environmental impact assessment stage prior to its going into operation, the generation of such pollution could have been avoided.

Currently, in practice, for certain business-type projects including restaurants, relevant government authorities expressly set an EIA approval as a condition for the securing of a business licence. And today, the time has come to formally push, at the level of legislation, EIAs from the planning and construction stages to the operation and trading stages. We call for the addition in the Environmental Protection Law of provisions on EIAs for business/operation projects and the setting of such EIAs as a precondition for securing a business licence.

Disclosure of information

From government to enterprise. In recent years, the disclosure of environmental information has also become a focus of the public. One can feel some gratification that the draft of the Bill to Amend the Environmental Protection Law adds a provision requiring the disclosure of environmental information. Regrettably, the draft only provides for the disclosure of environmental information by governments, and lacks any similar provision for the disclosure of environmental information by enterprises.

However, the environmental information of polluting enterprises, including the main pollutants emitted, method of emission, emission concentrations and total volume, exceeding of standards, exceeding of total volume, etc., is in practice usually not disclosed by enterprises on the pretext of “trade secrets”, making it impossible for the public to obtain necessary environmental information through lawful channels.

Accordingly, we would recommend that a mandatory provision on the disclosure of environmental information by enterprises be added to the Environmental Protection Law, to further improve the environmental information disclosure system.

Wang Jihong is deputy director of the Environment, Resource and Energy Law Committee, All China Lawyers Association; Shi Jie is deputy director of Environmental Law Committee, Beijing Lawyers Association