China's environmental laws receiving greater attention

Jin Mao PRC Lawyers
Jie Yuan and Rogers Wu
[email protected]; [email protected]

With the rapid development of the Chinese economy, environmental issues have become more serious than before. Both the government and the public are paying more attention to them.

Overview

The framework structure of environmental laws is composed of three sectors: (a) the comprehensive environmental protection (EP) law; (b) individual EP laws such as the pollution prevention and control laws of water, air, solid waste, noise, etc; and (c) resource conservation and protection laws such as forest and grassland protection law, mineral resource law, etc.

The key systems of environmental protection include: (a) environmental impact assessment; (b) 'three simultaneousness' system – environmental protection related facilities and equipment shall be designed, constructed and completed at the same stage as the manufacturing equipment/facilities; (c) pollutants discharge registration; (d) waste discharge licence; (e) pollutants discharge fee; and (f) rectification within a specific limited period.

Key issues

The first issue for China environmental protection laws is to pay more attention to the legislation rather than enforcement. On the one hand, more laws are being legislated and amended, while on the other hand, enforcement is relatively poor. One of the possible reasons for this is 'local-protectionism' i.e. local government focuses on GDP growth while neglecting environmental protection.

The second issue is to pay more attention to legislating laws in preference to legislating detailed regulations and rules, which results in confusion and/or non-alignment when enforcing. For instance, with the waste discharge licence, the laws of water and air pollution prevention and control regulate this as an important system. However, no detailed regulation and rule is available for implementation. Therefore, different provinces have different practices while some do not even do anything for it. The drafted Regulation of Waste Discharge License was issued in 2007 for public comment but it is still at the 'discussion' stage.

Trends

These days, the NPC and the government are putting more focus on optimising environmental laws and enhancing liability, not only to business units but to responsible individuals. Previously, since the penalty was so low, a number of manufacturers preferred to violate the law and pay the penalty rather than invest in environmental facilities/equipment. In recent years, the penalty has significantly increased following promulgation of the new revision. For instance, in 2008, the new Law of Water Pollution Prevention and Control increased the penalty to RMB50,000 – 500,000 (US$7,600 – 76,000). For those whose actions result in severe environmental damage, the penalty is 30% of the economic loss as well as a fine of 50% of the previous year's salary for those individuals who have direct responsibility. The NPC is discussing lowering the criteria for environmental crimes that are subject to criminal liability.

So, environmental issues are becoming more crucial than ever before. Local governments are subject to pressure from the central government as well as from the public and residents. As a result, enhancing enforcement has become a growing trend. More and more enterprises, including MNCs and SOEs, are now inclined to voluntarily implement environmental laws, regulations and standards.

Professional experience

The stricter legal requirements, heavier legal liability and increased environmental public awareness all require more professional services from lawyers. With their strong educational background in environmental matters together with their environmental management working experience, PRC lawyers have for many years provided professional and comprehensive environmental legal services to clients. For instance, Jin Mao has helped MNCs and local companies secure permission such as the EIA, trail-run permission and acceptance permission. Lawyers assist clients to deal with their relationship with the community regarding potential environmental complaints and disputes. Jin Mao Lawyers are also able to provide training and consultation to clients on the latest environmental and safety laws, regulations and standards, and share their knowledge and experience. Conducting environmental compliance audits to help clients find the implementation gap and take corrective action is another aspect of environmental legal advice.