BARRIERS AND SOLUTIONS TO BETTER ENVIRONMENTAL ENFORCEMENT
IN CHINA
WANG, JIN 1and YAN, HOUFU 2
1
Professor, Peking University Law School, No.5 Yiheyuan Road, Haidian District, Beijing
100871, P. R. China. Email: wangjin_law@pku.edu.cn
2
Assistant Professor, Beijing Normal University Law School, No. 19 XinJieKouWai St.,
HaiDian District, Beijing 100875, P. R. China. Email: ysyan0826@gmail.com
SUMMARY
Environmental deterioration in China is the byproduct of China’s fast economic
growth and weak environmental enforcement. If environmental enforcement were rigorous
enough, China’s environmental situation would not have deterioriated to the current extent.
In the past decade, environmental enforcement has definitely been strengthened. However,
in China, compliance with environmental law is still seriously affected by the “low cost of
environmental violation”
The reason for the inefficacy of environmental enforcement is very complicated. It is
related to subjective “omission” as well as objective “incapable of action” of the
environmental protection agencies. The effectiveness of environmental enforcement is
directly affected by the following factors: (1) the performance evaluation system used by
government officials that overemphasizes economic development, the fiscal mechanism
which divides revenue and expenditure among the central and local governments; (2)
unreasonable legislation; (3) the deficit of administrative systems; and (4) the weakness of
judicial support. This article will explain each factor hereinafter and provide corresponding
suggestions for the future.
1
DEVELOPMENTS OF AND BARRIERS TO ENVIRONMENTAL
ENFORCEMENT IN CHINA
China began to enforce environmental laws in 1979. Since 1979, China has
enacted nearly thirty laws concerning environmental protection and natural resources
conservation, energy conservation, clean production and circular economy promotion.
Numerous regulations, policies and environmental standards have also been enacted during
the last thirty years. The Party Central Committee and the State Council have emphasized the
importance of environmental protection in recent years. The 1980s marked China’s
declaration of environmental protection as a fundamental national policy. In the early 21st
century, President Hu Jintao called for scientific development and construction of an
“environmental friendly society.”Furthermore, for the first time the “Eleven-Five (2006-2010)
Plan” listed binding targets for “energy saving and emission reduction”.
However, the environmental situation in China is still challenging. Environmental
violations and major environmental pollution incidents occur frequently and there are more
and more “massive disturbances” taken by the public to protect their own environmental
rights and interests. It seems that the environmental protection in China has fallen into a
situation of “more law with less order.” The popular expression: “industrial and commercial
enforcement depend on licenses; taxation enforcement depends on invoices; public security
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enforcement depends on handcuffs; environmental enforcement depends on slogans”,
accurately describes this phenomenon.
In November 2010, Zhou Shengxian, the Minister of the National Ministry of
Environmental Protection commented to a journalist that the current environmental situation
could be summarized as “partly improved but remains uncontrolled as a whole, with
increasing pressures."1On April 21, 2011, the Macro Strategic Research Report on China's
Environment, which took over 50 academicians from the Chinese Academy of Sciences, the
Chinese Academy of Engineering, the Ministry of Environmental Protection and hundreds of
experts three years to compile, noted that "China's environmental pressure is bigger than any
other country's”.2
2
ENVIRONMENTAL ENFORCEMENT AFFECTED BY PERFORMANCE
EVALUATION SYSTEM OF GOVERNMENTAL OFFICIALSAND FISCAL
SYSTEMS
There are many factors that could impact the effectiveness of environmental
enforcement, but two factors of primary importance are (1) the use of performance
evaluations for government officials that overemphasizes economic development, and (2) the
fiscal mechanism that divides revenue and expenditure among the central and local
governments.
In China, government officials are not directly elected by citizens but appointed by
their superiors. Therefore, it is the superiors’ opinions, not the public’s feelings or “vote,”
that determines the future of an official. Because the superiors’ opinions of an official are
captured in “evaluation indexes”, naturally these indexes will become the guidelines of
officials’ behavior. Whether the “evaluation indexes” are designed reasonably and enforced
strictly will directly affect the effectiveness of environmental enforcement.
Since the reform and opening-up policy, the Chinese Communist Party has pursued
“focusing on the central task of economic construction” and has stated that “development is
of overriding importance.” Thus, the performance evaluation system of government officials
in China overemphasizes the economic indexes while ignoring the environmental protection
indexes. This causes local officials to only be concerned about GDP growth. Because
environmental protection fails to stimulate or may even hinder GDP growth, and
environmental protection indexes only constitute a small part of performance evaluation,
environmental protection is still “important in word, secondary in doing and nothing when
busy ” in practice. Environmental protection continues to be neglected in China even though
the Party Central Committee and the State Council have often emphasized the importance of
environmental protection.
In addition, the fiscal mechanism in China divides revenue and expenditure among
the central and local governments. The fiscal mechanism in China is often described as
“eating at different kitchens.”The taxes are divided into central and local government taxes
respectively. The central government taxes are much bigger compared to the local
government taxes. However, the public service function is mainly financed by local
governments. Thus, the level of local public service and the local government officials’
income are directly determined by the local fiscal status, which is directly connected to
economic development.
Only through rapid economic growth can local governments enhance the level of
public service and officials’ income. Therefore, local officials have to concentrate on
economic growth, business invitation and investment attraction and construction program
development, often resulting in heavy environmental pollution. Because environmental
protection and environmental enforcement may not increase fiscal income, but instead may
consume considerable fiscal resources, coupled with the fact that the environmental indexes
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are not important in officials’ performance evaluation, local governments have little
motivation to strengthen environmental enforcement.
3
ENVIRONMENTAL ENFORCEMENT AFFECTED BY LEGISLATIVE
FACTORS
Two thousand years ago, Aristotle pointed out that the “rule of law” means “rule of
good law.”Environmental enforcement needs considerate and reasonable legislation as
safeguards. Since 1979, China has enacted nearly 30 laws, more than 600 regulations and
more than 1000 standards concerning environmental protection. China has enacted
environmental laws comparable in amount to other developed countries.
However, these numerous and comprehensive environmental laws only “look
beautiful.”In fact, although they have no major mistakes, they do not have any major impact
either. They can hardly protect the environment or improve environmental enforcement. The
legislative factors affecting environmental enforcement include but are not limited to the
following:
3.1
A lack of legislation in certain areas
Although China has enacted many environmental laws and regulations, there are still
many environmental protection fields that do not have any laws or regulations, such as the
management of natural reserves, hazardous chemicals, alien invasive species and climate
change, as well as the prevention and treatment of soil pollution. In these fields, the legal
basis for environmental enforcement is not sufficient, which will absolutely harm the
effectiveness of environmental enforcement.
3.2
Laws that are too abstract to enforce
This problem not only exists within the environmental legislation, but is also a
common failing of China’s legislation. Environmental laws in China are full of abstract or
ambiguous provisions that authorize the State Council, the Ministry of Environmental
Protection or the provincial governments to make specific regulations or rules, without any
time limit. Environmental enforcement will encounter an awkward situation of
“having-no-legal –basis-in-fact” before these specific regulations or rules are enacted. Some
statistics show that there are more than 140 authorizing provisions in about 30 environmental
and natural resources protection laws. However, the State council, the Ministry of
Environmental Protection and the provincial governments have utilized less than 70% of the
provisions Additionally, among enacted regulations or rules, many were enacted long after
being implemented, which severely limits the effectiveness of environmental enforcement.3
3.3
Some environmental law provisions are unreasonable or contrary to the legislative
purpose
For example, China’s Environmental Impact Assessment Law has a provision that
allows construction programs to go through the relevant environmental impact assessment
procedures after beginning construction. Because the environmental impact assessment is the
main measure that may be used to fulfill the prevention principle, “go through the relevant
environmental impact assessment procedures after having begun to construct” the original
intention of having environmental impact assessment has been misconstrued. In practice, this
article encourages the phenomenon of “buying tickets after taking rides” which tends to cause
irreversible environmental harm. It also opens the floodgates for the local governments to
blindly develop the economy. A lot of construction programs that have significant
environmental impact acquire other agencies’ construction approvals before the
environmental impact assessment may be approved by the environmental protection agencies,
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rendering the “environmental impact assessment first” procedure meritless. Under such
circumstances, it is very difficult to enforce environmental laws and regulations.
3.4
Environmental penalties are too lenient to deter environmental violations
The so-called “low cost of environmental violation” means that penalties are too
lenient for environmental violations. Take the administrative penalties as an example.
Currently, the fine amount is wildly disproportionate to the benefit of environmental violation.
Guilty enterprises would rather be fined than correct their violations. This kind of
enforcement, which encourages environmental violations, has long been criticized by
scholars and the public. During the amendment of the Law on the Prevention and Control of
Water Pollution in 2007, many scholars, including the authors of this article, proposed to
establish a “daily penalty” in the law that would raise the cost of environmental violations.
However, the legislature did not adapt this because a “daily penalty” would increase the
burden of enterprises and harm the economic development. When environmental violators are
not afraid of penalties, environmental enforcement will surely fail.
Finally, the environmental laws overemphasize the interests of governmental agencies
and ignore the environmental rights and interests of the public.
4
ENVIRONMENTAL ENFORCEMENT AFFECTED BY ADMINISTRATIVE
FACTORS
The administrative supervision system has the most direct impact on the efficacy of
environmental enforcement. During the past three decades, the environmental enforcement
agency at the national level was upgraded from the vice-ministerial level of the National
Environmental Protection Bureau to the ministerial level of the National Environmental
Protection Administration, then to the cabinet department level of the National Ministry of
Environmental Protection. However, upgrading he agency did not strengthen environmental
enforcement or improve the environmental situation. Major administrative issues which
impact environmental enforcement include:
4.1
Local environmental protection agencies are subject to local governments
In the Chinese government system, environmental protection agencies are
components of the local governments, meaning the agency directors are appointed by local
governments, the agencies report to the local governments, and their funding comes from the
local governments. Therefore, the local environmental protection agencies basically follow
all the instructions from the local governments. With the motivation of governmental
official evaluation system which put the GDP at the top of the list, the local governmental
officials take various measures to interfere with environmental enforcement actions against
the enterprises, in order to promote economical development.
Local environmental
protection agencies are forced to comply with the local governments to keep their jobs and
the agency’s funding support. In recent years, both the governments and academia have
been actively discussing the possibility of vertical leadership in the environmental protection
agencies, which could reduce the interference from local governments. However, this
hasn’t been enacted in practice.
4.2
Environmental protection agencies have encountered difficulties in fulfilling their
responsibilities for “unified supervision and administration” of environmental
protection
The Chinese environmental administration system is composed of a unified
administration and an agency with divided responsibilities, which appears to be quite flexible.
4
In reality, the responsibilities of the different agencies sometimes overlap, which frequently
results in a lack of accountability in environmental enforcement.
4.3
Limited government funding affects the capacity of the enforcement agencies
Based on the experiences of developed countries, for a country with fast economical
development, the investment in environmental protection shall be 1-1.5% of national GDP for
a period of time to effectively control pollution, and reach 3.0% to significantly improve
environmental quality.4 However, until the end of the eleventh five year period, the
investment in environmental protection did not t reached 1.5% of the national GDP in China.
The lack of environmental protection investment is a direct cause of insufficient staffing and
funding for environmental protection agencies, which can hardly meet the needs of
environmental enforcement.
5
ENVIRONMENTAL ENFORCEMENT AFFECTED BY JUDICIAL
FACTORS
Most of the researchers have blamed the failure of environmental enforcement on
systematic issues, legislative deficiency and the inner and outer limits on the environmental
protection agencies during the process of environmental enforcement. These are all sound
arguments. However, few researchers have focused on the judicial aspect. In fact, under the
current judicial system in China, the attitude of the courts directly impact or even determine
the actual results of environmental enforcement.
According to current environmental laws in China, if a person or entity refused to
comply with the penalty decisions made by environmental protection agencies, the
environmental protection agencies need to apply to the courts for mandatory implementation,
instead of taking direct measure including foreclosure, detention or freezing bank accounts
for mandatory enforcement. However, it is unrealistic to expect that the courts will cooperate
with the environmental protection agency’s request for mandatory enforcement. In fact, many
courts are not very cooperative when it comes to mandatory enforcement of the penalty
decisions or other decisions by environmental protection agencies. The courts do not
cooperate because of the low implementation fee5 for courts, great barriers to
implementation6, and in many cases non-litigation implementation7 is not one of the main
criteria to evaluate judges. Without the cooperation of courts, penalty decisions made by
environmental protection agencies are unenforceable. This also wastes resources, discourages
the environmental protection agencies and is detrimental to the credibility of the
environmental protection agencies.
In other circumstances, it may take a very long time for the courts to implement
some decisions, which also seriously impacts the efficacy of environmental enforcement.
According to the legal provisions, environmental protection agencies can only apply for
judicial mandatory enforcement 60 days after they issue penalty decisions. It also takes a
period of time (within 30 days) for the courts to review penalty decisions. If it also takes a
period of time for implementation after courts’ review, the implementation may ultimately be
useless anyway. At the same time, pollution and its adverse impact on environmental and
human health continue. It may even be too late where the courts implement the decisions
within the time period required by laws---because sometimes the environmental violations
may impose imminent threat to human health or environment itself---not to mention the
delayed implementations.
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CONCLUSIONS AND RECOMMENDATIONS
Although over the past 30 years, China has adopted more environmental protection
and resource conservation laws, regulations and various environmental standards, and
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environmental protection agencies have been strengthened, unfortunately the reality is still
tough. On one side, environmental laws and regulations are increasing and environmental
protection agencies are upgrading. On the other side, environmental quality is getting worse
in general, and environmental enforcement is seriously compromised by the “low cost of law
violation.” In order to solve this problem, we need to work on all aspects of the
environmental enforcement, legislative, administrative and judicial systems.
In the future, a number of areas need improvement. First, we need to improve the
official evaluation system to raise the ratio of environmental protection. Also, we should
adjust the way that financial resources and administrative responsibilities are divided among
central and local governments, so that local governments will have enough funding for
environmental protection. In addition, we should ensure legislative efficiency and quality, in
order to make sure the legislation can provide better support for environmental enforcement
and effectively resolve the environmental enforcement challenges we are facing. Furthermore,
we should strengthen and guarantee that all levels of environmental protection agencies have
the power to perform environmental supervision and administration. In the end, there is a
great need for better judicial support for environmental enforcement in order to fully
implement the decisions made by environmental protection agencies.
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REFERENCES
Wu Jingjing, “The Environment has been Partly Improved but Remains Uncontrolled as a
whole: Zhou Shengxian Talked about Exploring a New Way for Environmental Protection”,
available at http://news.xinhuanet.com/mrdx/2010-11/27/c_13624608.htm, last visit:
2011-4-23.
1
Wu Weizheng, “the Macro Strategic Research Report on China's Environment released,
China’s environmental pressure is bigger than any other country’s”, People’s Daily,
2011/4/22.
2
Sun Youhai, “Rule of Law and the Construction of ‘A Resource-conserving,
Environment-friendly Society’”, Environmental Protection, 2006(11), Pp46-51.
3
Wu Shunze et al., “Analysis and Suggestions on the Lack of Environmental Protection
Funding in China”, 3 China Human Resources and Environment (2007).
4
5
In China, if the administrative agencies apply to the courts for mandatory implementation,
they need to pay “implementation fee” to the courts in advanced. The “implementation fee” is
usually calculated by the amount of the penalty. The “implementation fee” is 50 RMB if the
penalty is below 10,000 RMB. If the penalty is more than 10,000 RMB but less than 500,000
RMB, the “implementation fee” will be 0.5% of that amount. If the penalty is more than
500,000 RMB, the “implementation fee” will be 0.1% of that amount. About 90% of the
environmental penalties in China are less 20,000 RMB.
6
Many environmental violators are simultaneously the local major taxpayers. Therefore, in
many cases the local governments will obstruct the courts to implement environmental
penalties.
6
In China, “non-litigation implementation” means that an administrative agencies made a
penalty decision against a person or an entity who had violated the laws or regulations, and
the violator didn’t challenge the penalty decision through litigation or administrative review
within the limitation, then the agency apply to the courts for mandatory implementation of its
penalty decision.
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BIBLIORGRAPHY
OECD, Environmental Performance Review: China, China Environmental Science Press,
2007;
Sun Youhai, Beyond the “Environmental Storm”: Research on the Legislation of
Environmental and Natural Resources Protection in China, China Legal Publishing House,
2008;
Wang Jin, Explain the Environmental Law: Problems and methods, Court Press, 2006;
Wang Jin, The Chinese Path of Rule of Environmental Law: Reflections and Exploration,
China Environmental Science Press, 2011;
Wang Jin, et al, Thirty Years of Environmental Law in China: Have We Succeeded? Peking
University Press, 2011(in press).
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