Steps forward, and a step back

A revision to the draft amendment to the environmental protection law has aroused a heated outcry from the public

On July 17, after one year of review, discussions and revisions, the Legislative Affairs Commission of the National People’s Congress solicited the public’s opinions on the second draft of the Amendment to the Law of the People’s Republic of China on Environmental Protection. It is unusual for China’s legislative authorities to twice solicit public comments on a law, which shows the significance and complexity of the amendment.

China’s environment has deteriorated sharply in the 24 years since the existing environmental protection law was officially adopted in 1989, and an amendment to the law to meet the environmental situation today has been highly anticipated by the environment protection authorities, academia, environmental protection NGOs and the public.

However, the first draft of the amendment released last August failed to meet their expectations and it was heavily criticized for “being too mild and lacking any fundamental change and improvement”. After the original amendment was released for public comments on Aug 31 last year, it received 11,748 comments from 9,572 citizens within a month; most of them unfavorable. The Ministry of Environmental Protection also officially made four major comments and 34 specific suggestions to the first draft.

The harsh criticism led to the revision of the first draft.

The second draft of the amendment has undergone a major “operation” in the 10 months of revision, and several significant changes have been made. In the second draft, protecting the environment has been defined as a basic State policy for the first time, which reflects the government’s pledge to “construct an ecological civilization”. The second draft also strengthens the regulations that cover the government’s environmental protection responsibilities, especially supervision and accountability. Including environmental protection into the assessment system for officials and punishing their malpractices according to the law will effectively help protect environment. More notably, the disclosure of environmental information and public participation have been included in the law as a separate article for the first time.

The response to the second draft has been a lot more positive, with the general impression being that it is “on the right track”, as it gives four major participants — local governments, the local environment protection authorities, enterprises and the public — roles in protecting the environment.

However, one article has proved to be a bad apple in the barrel. Article 48 has sparked a furious public outcry, as it is regarded as a regressive move. The article would restrict the filing of public interest lawsuits to a government-affiliated body, the All-China Environment Federation and its provincial-level subsidiaries. This has been fiercely criticized by experts, NGOs and the public, who claim the article undermines the purpose of the amendment.

Certainly it is rare to see a law directly empower a single organization in its articles in this way. And making a single organization the sole vehicle for the public’s interests hinders public participation, especially the participation of environmental protection NGOs, in protecting the environment.

Less than 1 percent of environmental disputes have been settled through judicial channels since 1996, a retired official with the environment ministry told State media last year. Giving the federation a monopoly on environmental litigation is unlikely to change that, as its relations with the government mean it will not be independent, especially since it is environment protection departments at all levels that are being taken to court.

The federation’s complicated relations with the environmental protection authorities and enterprises have led to accusations that it covers up for polluters and engages in rent-seeking. The federation’s ties with enterprises have also caused concern. There have been media reports that some polluting enterprises pay membership fees to the federation. The federation also runs a company named ACEF (Beijing) Environment Protection Co Ltd, which provides environmental assessment services to construction projects.

Moreover, as a country with vast territory and a huge population, it is unfeasible to expect the All-China Environment Federation and its eight local federations to be able to cope with countless, time-andmoney consuming cases involving the public interests. Grassroots environmental protection NGOs, which are more familiar with local situations, have fewer conflicts of interests and are more accessible to the public, should also be able to bring environmental cases to court in the public interest. Closing the day on them is counterproductive.

Therefore it is imperative that there is a revision to article 48 of the second amendment so that legally registered environmental protection groups are also allowed to act in the public’s interests in court proceedings. And it is expected that amended law itself will be put into effect at an early date.