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Comparing and Contrasting U.S. and Chinese Environmental Law

New York Law Journal

February 23, 2012

In November, eight American environmental lawyers had the opportunity to participate in an environmental law study tour of China and teach Chinese practitioners about U.S. law.[1] This column describes several Chinese legal tools, and compares them to their American counterparts.

China has a robust compilation of national, provincial, and local environmental laws, some dating back to the beginning of China’s reform period in the late 1970s following the chaos and lawlessness of the Cultural Revolution. Many of those laws are modeled on U.S. environmental laws.

However, despite fairly comprehensive laws on the books, there are significant differences between implementation and enforcement of the Chinese and American laws: Chinese standards are generally lower than in the United States, enforcement is inconsistent, political incentives favor economic growth, public access to information is restricted, the NGO (non-governmental organization) and philanthropic communities are immature, the judiciary is not independent, and there is an enormous poor and rural population seeking to improve its standard of living.

Despite these structural obstacles and the enormous scale of the problem, China has made progress, and it was encouraging to learn of the many people inside and outside of the government working to improve the environment.

China’s Environment

China has industrialized faster than any nation in history. In 1981, the per capita income was $195; in 2010, it soared to $4,428.[2] In the 1970s, 80 percent of Chinese were peasants; now, more than half live in cities.[3]  While industrialization and urbanization have increased China’s global power and have benefitted many of its impoverished citizens, legal institutions for environmental protection have not kept pace with economic output.

The World Bank estimates that 16 of the world’s 20 most polluted cities are in China.[4]  China’s urban air is notoriously polluted, and 20 percent of water in China’s major rivers is too contaminated for even industrial use. Although China’s per capita greenhouse gas emissions are comparatively low, in 2006, China eclipsed the United States as the world’s largest emitter.

Pollution also harms China’s economy and international reputation. In December, for instance, 200 flights were cancelled at Beijing’s airport due to lack of visibility from the dense smog, and a recent MIT study concluded that costs to the Chinese economy from air pollution increased from $22 billion in 1975 to $112 billion in 2005.[5]

U.S. Contribution to Air Data

Although it still is possible to experience beautiful, blue skies in Beijing, the modern city of 20 million people frequently suffers from a pall of brownish-gray smog, unlike anything experienced in the United States today, short of being downwind of a forest fire. Despite the obvious air pollution, the Beijing Environmental Protection Bureau reported that last year, approximately 75 percent of days were considered “blue sky,” an improvement from prior years.

Because of the pollution, the United States installed an air quality monitor at its embassy, and publishes on its website and Twitter feed hourly fine particulate matter (“PM2.5”) readings keyed to the health-based U.S. Air Quality Index.[6]  (Although Twitter is blocked in China, the data are re-posted on Chinese micro-blog sites such as weibo.com and are widely available in China.) The air quality index ranges from “good” through “moderate,” “unhealthy for sensitive groups,” “unhealthy,” and “very unhealthy,” all the way to “hazardous.”

On particularly bad days, observers may notice the readings exceeding the maximum and reporting “Beyond Index.” In November 2010, however, at the start of the winter heating season, when tons of coal were shoveled into Beijing’s residential boilers, the automatic monitor caused a minor diplomatic incident. Apparently whoever programmed it hadn’t thought that the air would ever exceed “hazardous” levels. When particulate levels spiked, however, the normally sober Embassy data feed reported that Beijing’s air was “Crazy Bad.” This programming joke embarrassed both the Chinese and Americans simultaneously, no small feat.

The discrepancy between the American and Chinese air reports had to do principally with the locations of the monitoring stations (the Chinese discount the U.S. data because it comes from only one unit located close to a major road); the pollutants monitored (the Chinese only reported data for larger particles, PM10, not the smaller, more insidious PM2.5); and the differences in Chinese and American air standards (Chinese standards are more lax). Nevertheless, the opaque air and availability of alternative data have spurred Beijing to release its own real-time PM2.5 data last month.[7]  It will be interesting to see how the Chinese and American data compare over time.

Environmental Laws

China not only has a full range of environmental laws, but its 1978 Constitution codified its responsibility to protect the environment. Its Environmental Protection Law also was one of seven basic codes enacted following the lawless years of the Cultural Revolution.[8]  Since then, China has enacted a full range of statutes, including laws concerning the ocean, water pollution, forests, grasslands, air pollution, solid waste, radioactivity, environmental impact assessments, genetically modified crops, invasive species, toxics, urban planning, and noise. China also now reportedly is drafting a statute imposing a carbon tax, and has instituted pilot carbon trading programs.[9]

Despite these laws, nearly every Chinese practitioner we spoke with lamented that they either are not implemented well or do not have teeth: Many laws express goals rather than mandates; none have citizen suit provisions like most U.S. environmental statutes; discharge information is often treated as proprietary business information, so citizens and NGOs lack proof of violations; even when there is litigation, courts do not have the ability to interpret and develop environmental requirements; enforcement penalties are low enough that businesses consider them a business cost (local governments use them as a reliable revenue source); and enforcement agencies are understaffed and beholden to local politics. One provincial environmental enforcement official we spoke with, however, indicated that the agency now publishes names of egregious polluters in the local newspaper, a promising strategy to shame polluters into compliance.

Environmental Impact Review

A principal statute is China’s environmental impact assessment (EIA) law, which is cosmetically similar to the U.S. National Environmental Policy Act (NEPA).

EIAs must be completed for the establishment, expansion, or renovation of business facilities such as factories, as well as for certain government plans. Similar to the difference between a smaller American environmental assessment and a full environmental impact statement, there is a three-tier system for the EIAs, ranging from registration with little or no anticipated impact, a less involved assessment, and a full EIA. Like in the United States, EIAs must include mitigation, which in China seem to consist mainly of industrial pollution control equipment. The local environmental protection bureau must approve each EIA and inspect the facility to ascertain whether it is in compliance with its mitigation before full operation is permitted. The extent to which there is further monitoring to ensure that costly pollution control measures remain operational is unclear, though it is likely that there is more enforcement against foreign companies, which are seen as having sufficient financial resources.

In NEPA, consideration of alternatives is of paramount importance. The Chinese law does not require alternatives. While public participation is required in Chinese EIAs, it does not resemble NEPA’s public hearing and comment requirements. Rather than seeking comment from any member of the public, public participation in China may include only those directly affected by a project, or those with special expertise, such as professors. Moreover, although China also has laws governing public access to information, most portions of the EIAs are considered proprietary and confidential, and even government regulators do not have access to the entire document! Access to environmental information is improving, however.[10] Finally, in the United States, NEPA’s procedural and substantive requirements have been clarified through judicial decisions and regulations. In China, court decisions are cursory and hold no precedential value, so the EIA requirements are not subject to judicial interpretation.

Environmental Courts

Public interest and environmental litigation in China is still in its infancy and suffers from many legal, institutional, and cultural hurdles. As a one-party, civil law nation with a longstanding tradition of mediation over litigation, Chinese in general are less likely to seek courts to resolve differences, particularly when environmental claims conflict with economic development and local government revenue. In fact, the legal profession has only had around 30 years to become established after the Cultural Revolution, and private law firms were not common before the 1990s.[11]  Despite the prevalence of U.S. lawyer jokes, the legal profession is less respected in China, and there are far fewer lawyers. In the world’s most populous nation, there are only approximately 200,000 lawyers, about the same number in New York State. Also, lawyers can face persecution for championing controversial cases.[12]

Rarely addressing industry- or society-wide problems, most environmental cases in China involve tort compensation, not unlike early U.S. environmental litigation before the enactment of the major environmental statutes. In addition, many or most Chinese cases are resolved through mediation, rather than by a definitive judicial decision.

A primary obstacle to environmental public interest litigation is standing for individuals and NGOs. NGOs are relatively new creatures in China, and must have official government sponsorship and be registered with the government to be legal entities. Some NGOs with particularly close government ties are commonly referred to as GONGOs, or “government-organized NGOs.” Unregistered NGOs, while growing more common, are not officially recognized, have a more tenuous legal existence, and would clearly lack standing in court. NGOs are further hampered by not being allowed to have branch offices. In contrast to U.S. courts, many cases are frustrated when the court clerk either rejects a case or, even worse, simply fails to act. Without an official decision, there is nothing to appeal, and the case withers.

One interesting development in Chinese litigation is the rise of specialized environmental courts. Still largely experimental and not in every province, environmental courts experiment with expanded standing, the use of regulatory pollution limits as evidentiary standards rather than causation, long-arm jurisdiction to bring out-of-jurisdiction polluters to justice, and injunctive relief to stop pollution and restore habitats.

One of the most successful environmental courts is the Qingzhen Environmental Court in Guizhou Province, which the U.S. environmental law delegation visited. Established to protect the main drinking water sources for the provincial capital, the Qingzhen court has been at the forefront of innovative environmental litigation in China.[13]13

Conclusion

China is experiencing unprecedented growth and pollution without the legal capacity to address it. It does not bode well that China’s current growth dwarfs anything in history. On the positive side, though, China has made impressive strides in environmental protection, and many Chinese we met are encouraged by the incremental progress and are optimistic about the future.


Christine A. Fazio is a partner and co-director, and Ethan I. Strell, a senior associate, in the environmental practice group at Carter Ledyard & Milburn. Daniel Greene, senior counsel, New York City Law Department, and Daniel Murphy, senior program officer, National Committee on United States-China Relations, assisted in the preparation of this column.

This article is reprinted with permission from the February 23, 2012 issue of the New York Law Journal ©2012 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Endnotes


[1] The trip was sponsored by the National Committee on United States-China Relations, www.ncuscr.org. The American delegation consisted of lawyers from private practice, NGOs, and government, including co-author Ethan Strell. The group travelled to Beijing, Guiyang, and Wuhan and met with Chinese lawyers, judges, NGOs, scholars, officials, and journalists.

[2] “World Development Indicators: GDP Per Capita,” World Bank, available at http://data.worldbank.org/indicator/NY.GDP.PCAP.CD.

[3] Manish Bapna, Green Tech: “China’s Population Challenge: Designing Sustainable Cities for the Future,” Forbes, Feb. 15, 2012.

[4] “World Development Indicators 2008,” World Bank Online, available at http://data.worldbank.org/sites/default/files/wdi08.pdf.

[5] Matus, et al., Health damages from air pollution in China, Global Environmental Change, 22(1): 55-66, 2012.

[7] Only available in Chinese, the air quality monitoring data is available from the Beijing Environmental Protection Bureau at http://zx.bjmemc.com.cn. See also “Comparing Pollution Data: Beijing vs. U.S. Embassy on PM2.5,” China Real Time Report, Wall Street Journal, Jan. 23, 2012; “New Year Fireworks Leaves Beijing Air Smothering,” China Daily, Feb. 16, 2012.

[8] See Stefanie Beyer, “Environmental law and Policy in the People’s Republic of China,” Chinese Journal of International Law (2006), Vol. 5, No. 1, 185-211.

[9] Wei Tan, “Officials Weighing Green Benefits of Carbon Taxation,” China Daily, Jan. 6, 2012; Alvin Lin, “China’s Carbon Tax Is Very Real,” NRDC News, Jan. 28, 2012.

[10] The Chinese Institute of Public and Environmental Affairs (http://en.ipe.org.cn:90) and NRDC (http://www.nrdc.cn/english/E_index.php) publish an annual survey on environmental disclosure in China. IPE also maintains an influential interactive map of water pollution discharges.

[11] Dick Thornburgh, “China’s Harassed Lawyers,” op-ed, The New York Times, July 28, 2009.

[12] See, e.g., Stanley Lubman, “Don’t Overlook China’s ‘Ordinary’ Lawyers,” The Wall Street Journal, Aug. 31, 2011.

[13] See, e.g., Alex Wang and Jie Gao, Environmental Courts and the Development of Environmental Public Interest Litigation in China, Journal of Court Innovation, 2010.



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