The Environment and Climate Change Law Review: China
2020 is the last year for the implementation of the 13th five-year plan, which features robust actions in the field of environmental protection and governance, and the motto of President Xi Jinping that 'green mountains are gold mountains'. The efforts are paying off: according to data released by the Ministry of Ecology and Environment (MEE), the past five years have been the golden age of the environment protection sector, marked by the best performance of ecological improvement in history, and in 2019 energy use per unit of GDP reduced by 13.2 per cent compared to 2015; 337 municipal cities across the country enjoyed good air quality on 82 per cent of the testing dates; and 74.9 per cent of surface water had quality at or better than level III.2
The covid-19 pandemic that started in late 2019 and the consequent recession, while causing a short disruption in the first quarter, did not stop China from taking more ambitious and determined actions to tackle environment challenges, including climate change. Notably, the government is mindful of integrating environment protection efforts into its massive poverty alleviation campaign.3 Still, it came as a surprise to many when President Xi pledged, in a speech at the General Debate of the 75th session of the UN General Assembly via video link, to bring carbon emissions to a peak by 2030, and to achieve carbon neutrality by 2060.4
The suspected link between the illegal trading of wild animals and the outbreak of the covid-19 pandemic triggered a public outcry against the trading and consumption of wild animals, and the unsubstantiated allegations of a lab leak, rebuked by the science community, also increased awareness of biological safety issues. As a result, special legislation imposing a complete ban on the hunting, trading and transportation of wild animals was passed in February 2020, and a new law on biological safety, which had been on the agenda of the Standing Committee of the National People's Congress (SCNPC) before the pandemic, was also enacted.
The Civil Code, passed by the National People's Congress (NPC) in May 2020 and taking effect on 1 January 2021, and the only legislation titled as a 'code' in China, made a solemn declaration of a novel principle of civil law that 'all civil subjects engaging in civil activities shall help save resources and protect the ecological environment'.5 How such a principle will impact the actual operation of the law is something to watch in the coming years and decades.
The environmental protection law comprises various legislation by the NPC and the SCNPC, administrative ordinances by the state council, regulations and rules promulgated by the MEE and other ministries and departments, and regional regulations and rules by local authorities.
The Environmental Protection Law (EPL) is the primary source of law for environmental protection; there is also legislation targeting specific areas of ecological preservation and environmental protection, such as the Laws on the Prevention and Control of Air/Water/Soil/Noise Pollution, the Law on the Protection of the Maritime Environment, the Law on Environmental Impact Assessments and so on. The narrow branch of environment protection law is further supported by related provisions in other bodies of legislation not specifically regulating environmental issues, such as the Civil Code, the Criminal Law, the Administrative Sanctions Law, the Resources Tax Law and so on.
These laws are implemented with detailed rules supplemented by administrative ordinances, and ministerial and regional regulations and rules.
According to the MEE, China has formed a system of laws and regulations for ecology and the environment, covering all major fields of the regulation of environmental factors, with the aim of safeguarding green development which is of better quality, efficiency, fairness and sustainability.6 However, the MEE recognises that the legal system is far from perfect and plans to improve the system with care and diligence because:
- there is a lot of overlap between these pieces of legislation, owing to the pattern of making specific legislation for specific environmental factors;
- there are quite a few conflicts in the application of laws;
- there are still gaps in the legislation, in the areas of adaptation to climate change, permission for pollution, environment monitoring, etc.; and
- the laws in certain areas are out of date, and the administrative penalties therein are toothless according to today's standards.7
The MEE is the central authority in enforcing environment and climate change laws and regulations in China. As of November 2020, the MEE takes major responsibility for the implementation of 14 laws, 30 administrative ordinances, 88 ministerial regulations and 203 environment-related compulsory standards.8 Provincial, prefectural and county governments have their own departments of environmental protection that work under the supervision of the MEE. That said, other departments are taking responsibility for environmental protection in matters within their jurisdiction. The State Oceanic Administration is responsible for maritime ecosystem and environment protection, while the Ministry of Water Resources, the Ministry of Land Resources, the Ministry of Agriculture and the Administration of Forestry have certain authorities and duties in environmental protection related to water resources, land and mining resources, agriculture and forestry respectively.
These agencies may issue administrative licences, compel preventive or remedial measures and impose administrative penalties in their law enforcement if the authority is empowered to do so by laws and regulations. Generally, administrative decisions rendered by the regulatory authorities may be challenged before the people's courts, which decide whether the decision (and the underlying procedure leading to the decision) is legitimate, but generally should not interfere with the exercise of discretionary power of the agency.
The Ministry of Public Safety and its local bureaus are responsible for the investigation of environment-related crimes, and the people's procuratorates (state organs of legal supervision) are responsible for the prosecution of crimes.
According to Opinions on Strengthening Ecological Environmental Protection by the State Council,9 local governments are now explicitly encouraged to legislate ahead of the central government in the field of environmental protection.
Pollution of the environment, as a tortious act, may also give rise to civil liabilities that may be referred to the courts. Traditionally, ratio decidendi in prior court judgments do not have stare decisis (though, in practice, they are usually followed by the same court or lower courts for judicial conformity). But the newly implemented 'Guiding Cases' system allows the Supreme People's Court to publish guiding cases with binding authority over the courts to unify the application of laws in judicial practice. Based on the Opinions of the Supreme People's Court on Providing Judicial Services and Supports for the Protection of the Ecological Environment, dated 4 June 2018,10 certain qualified high and intermediate people's courts may set up environmental resource divisions separately; if not qualified, they may set up specialised collegiate benches or judicial teams in relevant courts to take charge of environmental resources judicial works. The end purpose is to have the criminal, civil and administrative cases concerning environmental resources handled by special judicial agencies or professional trial teams.
i Administrative proceedings
The provincial, prefecture and county environmental protection authorities (EPAs), being local branches of the MEE, are responsible for the investigation and enforcement of environmental protection-related matters within the region according to the EPL. A monitoring mechanism of environmental protection has been formed, with collected data to be stored and managed by the Information Centre of the MEE. According to Opinions on Strengthening Ecological Environmental Protection by the State Council,11 the government has set up an integrated law enforcement team dedicated to the protection of the ecological environment, to be included in the queue of government administrative law enforcement agencies to promote the standardisation of law enforcement through the unification of public images, identifications, certificates, vehicles and equipment. It further empowers the environment law enforcement agencies, thus being better positioned to curb the influence of regionalism and short-sighted economic development.
If an EPA finds violations, it could take administrative coercive measures and impose administrative penalties against the offenders according to the EPL, the Administrative Penalties Law, the Administrative Coercion Law and other relevant laws and regulations. Commonly imposed penalties include fines, consecutive penalties aggregated on a daily basis, restoration, seizure and detention of facilities and equipment, restricting operations and suspending production for renovation.12 Continuing 'illegal discharge of pollutants' will be subject to consecutive daily fines, the amount of which is decided based on the actual needs.13 The concept of 'control targets for the total emission volume of major pollutants' was adopted in the EPL to specify the consequences corresponding to excessive emissions, where EPAs are empowered to directly order the offending enterprises to restrict or even stop the operation and production for rectification.14 Moreover, local EPAs may transfer the case to public security bureaus and impose a detention on the persons directly in charge of the offending entity along with other persons directly responsible for the pollution under certain circumstances listed in Article 63 of the EPL, so that criminal prosecution may follow.
In addition, according to the Administrative Review Law, private citizens or entities may challenge the administrative acts taken by administrative organs before competent governments or administrative agencies to contest the administrative act.15 When refusing to accept a specific administrative act taken by a department of the government at or above county level, the applicant may choose to apply to the government at the same level or to the same department at a higher level for an administrative review.16
ii Administrative actions
Private citizens or entities may bring administrative actions before competent courts against such administrative organs to contest administrative decisions or acts.17 In most circumstances, district courts have jurisdiction over administrative lawsuits of first instance.18 Defendants shall be the administrative organs that rendered the administrative decisions or conducted the administrative act (including action, non-action or omission) or, in cases of a prior administrative review, the review organ, depending on the outcome of the review.19
In addition, in accordance with Article 25 of the Administrative Procedure Law, the People's Procuratorate is empowered to file actions against those administrative organs or agencies that fail to perform their statutory duties to protect the ecological environment.
iii Criminal investigation and prosecution
With regard to the criminal aspect, public security bureaus take charge of criminal investigations, usually based on cases transferred to them by the environmental protection authorities, and the People's Procuratorate prosecutes individuals and entities who committed crimes in relation to the environment.
The Criminal Law lists crimes that natural persons, either in their individual capacity or as persons directly responsible for behaviours of entities, might be prosecuted for impairing the ecology, environment and resources;20 spreading poisonous or radioactive substances;21 smuggling waste;22 illegally dumping, piling up or disposing of solid wastes from abroad within the territory of China;23 importing solid wastes without permission;24 and crimes for dereliction of duty in environment administration.25 Article 346 of the Criminal Law also provides that an entity that commits the above-mentioned crimes shall be fined.
iv Private civil actions
Victims may bring tort action against environmental tortfeasors to seek civil remedy directly. Where any damage is caused by environmental pollution or ecological damage, the relevant persons shall bear tortious liability under the relevant provisions of the Tort Liability Law.26
In environment-related tort lawsuits, strict liability applies, and the burden of proof for causation, or the lack of causation, is shifted to the accused tortfeasor,27 and the plaintiff only needs to prove tortious conduct and damage to establish a prima facie case. The most commonly used defences under the Tort Liability Law are force majeure, contributory liability28 and third-party liability.29
Remedies available in civil actions include monetary damages, and injunctions ranging from cessation of infringement, removal of obstruction, elimination of danger and restoration to the original state, to apology.30
The statute of limitation for bringing civil actions in relation to environmental pollution is three years, starting from the time when the plaintiff is aware or should be aware of the harm.31
v Public interest civil actions
The EPL established the environmental public interest lawsuit regime, which entitles competent social organisations to bring environmental public interest lawsuits for tortious behaviours that pollute the environment and harm the public interest, even though they would not have standing for a private civil action. Article 58 of the EPL specifies the conditions for a social organisation to bring public interest lawsuits.32
Social organisations with nationwide influence such as the China Environmental Protection Federation and Friends of Nature, as well as numerous local environmental protection associations, have brought a number of environmental public interest lawsuits in different areas of the country. Article 18 of the Interpretations of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Environment-related Civil Public Interest Lawsuits provides that, in addition to regular civil remedies, courts may issue injunctions compelling the tortfeasor to restore the environment or pay the costs for such restoration to a public fund.
The effectiveness of such public interest lawsuits is still under scrutiny. It was reported in August 2020 that a public interest lawsuit, claimed by some as the first of its kind, brought by Friends of Nature against a local manufacturing company in Yunnan for solid waste pollution, was only settled in 2020, after nine years of prolonged legal battle, with the lack of resources for the plaintiff and the high costs for expert determination of the causation and damage to the environment harm highlighted as the main causes for the delayed justice (and to a large extent denied).33
Reporting and disclosure
The disclosure requirements and public involvement in connection with environmental protection can be found in Chapter 5 of the EPL. The MEE and the EPAs are responsible for disclosing information regarding environmental quality, supervision, emergencies, permits, penalisation, fee charging and usage issues, as the competent department of environmental protection at different levels. The EPAs also take charge of recording environmental violations in the social credit archives and publishing the list of offenders to the public under Measures for the Disclosure of Environmental Information.34
Key pollutant-discharging entities are required to truthfully disclose the names of their major pollutants, discharge methods, emission concentration, total emissions and excess emissions, as well as the construction and operation of pollution prevention and control facilities.35 More details can be found in the Measures for the Disclosure of Environmental Information by Enterprises and Public Institutions.
i Air quality
The State Council sets the ultimate goals for air pollutant emission control periodically, and local governments are permitted to determine the emission control goal for their territory, for each entity, especially key pollutant discharging entities, and issue relevant permits. The Law on the Prevention and Control of Atmospheric Pollution is the primary source of law that governs air pollution-related environmental problems. It stipulates that air quality standards and emission targets shall be set by the MEE or local governments,36 and violations to the law will be subject to fines.37 The Integrated Emission Standards for Air Pollutants (GB16297 – 1996) set forth emission standards for 33 kinds of different air pollutants, together with specific air pollutant emission standards for boilers, industrial furnaces, thermal-power stations, automobiles, motorcycles, etc. Local authorities are encouraged to establish more stringent emission standards for air pollutants.
To further implement the Law on the Prevention and Control of Atmospheric Pollution, the government issues, enforces and updates various standards of air pollutants. The Limits and Measurement Methods for Emissions from Light-Duty Vehicles (China V Emission Standard), in force since 1 January 2018 and equivalent to EU Stage 5 emission standards, was replaced by the China VI Emission Standard on 1 July 2020, with a six-month transition period for vehicles produced under the China V Emission Standard to be sold and registered.38
ii Water quality
The Law on the Prevention and Control of Water Pollution comprises chapters regarding regulating water pollution with regard to industrial, urban, agricultural and rural, and vessel activities, and the Implementing Rules of the Law of the PRC on the Prevention and Control of Water Pollution details corresponding requirements. As required by the Law on the Prevention and Control of Water Pollution, entities are not allowed to discharge industrial or medical effluents without obtaining a permit from the government beforehand, and entities that perform centralised disposal of urban effluents should obtain permits in advance as well.39 The amendment to the Law in 2018 places special focus on agricultural water waste and drinkable water safety, while also increasing the cost of violation to a maximum of 1 million yuan.40
A draft legislation on the protection of the Yangtze River, the mother river of south China running from alpines in Tibet to the river mouth near Shanghai and connecting 19 provinces, was under discussion at SCNPC.41
Current effective laws and regulations for hazardous chemicals mainly include the Work Safety Law, the Regulations of the Work Safety Licence, the Fire Protection Law, the Emergency Response Law and the Regulations of the PRC on Administration of Chemicals Subject to Supervision and Control. While most rules target safety issues under the jurisdiction of the Ministry of Emergency Management (MEM), environment-related aspects are at the hands of the MEE.
Entities engaged in hazardous chemicals-related business shall obtain certain permits, conduct safety assessments, conduct environmental impact assessments and provide a responsive emergency plan at the initial stage of the project. There are also domestic laws and regulations implementing the Stockholm Convention on Persistent Organic Pollutants and the Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
The MEE is drafting a new regulation on the environmental risk assessment and control of chemicals. 42
iv Solid and hazardous waste
The Law on the Prevention and Control of Environmental Pollution Caused by Solid Waste, amended on 29 April 2020, concretely directs the work for the prevention and control of industrial solid waste and domestic garbage. Permits must be acquired for collection, storage, disposal and utilisation of hazardous waste, and discharge of hazardous waste must be completed in conformity with the regulations.43
The amendment in 2020, taking effect on 1 September 2020, imposed a complete ban on the importation of solid waste from foreign countries, which contributed to billions of GDP in the waste disposal industry. It also announced the establishment of a nationwide household waste sorting requirement, including in rural areas, and strengthened the management of electronic waste, medical waste, tailings and urban construction waste. On industrial solid waste, the amendment imposed stricter liabilities on polluters, and incorporated a pollution permit system that did not exist for solid waste.
The MEE also updated the list of hazardous waste according to the new law.
v Contaminated land
The Law on the Prevention and Control of Soil Pollution is the primary legislation in the area.44 Compared to atmospheric pollution and water pollution, soil pollution is more invisible and accumulative, and it is the most difficult to detect instantly. The law provides that any organisation or individual has the obligation to protect the soil and prevent soil pollution, and effective measures should be taken to prevent and reduce soil pollution, otherwise legal responsibilities will incur according to the law.45
i Source of law and policies
Since China ratified the United Nations Framework Convention on Climate Change, China's action in the field of climate change is, primarily, guided by many policy documents by the ruling Communist Party, the state council and the responsible ministries. The drafting of the Law on the Adaptation to Climate Change has been in hibernation for a few years, and has not been put into the recent schedule of the legislature.
ii Regulatory authorities
The Department of Climate Change in the MEE, moved from the National Development and Reform Commission (NDRC) in 2018, spearheads climate change-related regulatory work. However, since there has not been any act of the MPC or ordinance of the state council, climate change-related law enforcement is very limited, and the authorities are still focusing on rulemaking, capacity building and the establishment of a national carbon market.
iii Policy focus
China's National Climate Change Programme illustrates that greenhouse gas (GHG) mitigation should focus on key areas of energy production and transformation, energy efficiency improvement and energy conservation, industrial processes, agriculture, forestry and municipal waste.
iv Regulated activities
As per the National Action Plan on Climate Change (2014 to 2020) issued by the NDRC, the regime for addressing climate change-related issues includes control of GHG emissions, adapting to climate change, low-carbon pilots and demonstrations, supporting policies, etc. In particular, concerning control of GHG emissions, various industries are specifically regulated, including the energy industry (including electricity and fossil energy), iron and steel industry, architectural material industry (including cement, glass and ceramic), chemical industry, non-ferrous metal industry, paper industry, food and medicine industry and textile industry. Urban and rural construction, transportation, agricultural activities, commercial activities and waste disposal are also regulated, though there are few mandatory emission reduction requirements.48
v Domestic carbon trading
The national carbon trading market is likely to take off in 2021, and the power industry is expected to be the first to enter the market. The MEE started a public consultation in November 2020 for the draft of the Provisional Measures on the Administration of National Carbon Emission Rights Trading.49 According to the draft rules:
- the national system will cover all entities with an annual GHG emission of 26,000 tons CO2e, which can no longer trade in regional markets;
- the MEE will build and maintain a national registry, which is connected to the national environment information platform for environment monitoring;
- the measures for the allocation of allowances will be promulgated by the MEE with integrated consideration of the overall control target, economic growth, industrial structure adjustment, and other relevant factors;
- the MEE will also build and supervise a national carbon emission rights trading system connected to the registry;
- monitoring requirements are imposed, with verification by designated entities and supervision by provincial EPAs; and
- Certificated Carbon Emission Reductions generated from projects and activities beyond the coverage of the national system can be used to offset 5 per cent of the emissions.
The eight pilot markets in seven provinces are still operating. According to the MEE,50 in the first eight months of 2019, the total carbon trading volume in eight pilot markets, including Beijing and Tianjin, reached 406 million tons CO2e and 9.28 billion yuan, setting new records.
Outlook and conclusions
The determination displayed by the government to improve the environment and the achievements made in the past few years are unprecedented. With a good environment regarded as one of the pillars of the 'moderately prosperous society', there is a general consensus in China that we must act for the environment and the climate, for the better lives of all. We believe the trend will continue.
For the purpose of in-depth implementation of environmental protection laws and regulations, technical specifications and operational standards that cover more and more industries are being promulgated by the MEE in pursuit of building a 'green economy', especially to combat and keep in check air pollution that haunts most of China. Resources for law enforcement in the sector have also been greatly strengthened in recent years. Private actions will continue to be a pivotal part of the enforcement of environmental laws and regulations.
The taking effect of the Paris Agreement, and the pledge by China on emission peak in 2030 and carbon neutrality in 2060, are very encouraging after years of standstill on rule making and feeling of uncertainty in the area. The first national carbon market will create the largest carbon market in the world, and provide economic incentives for carbon emission reductions in and beyond the controlled sectors. The 14th Five Year Plan, to be released in middle of 2021, will provide additional insights into how China will project its environmental protection and response to climate change.
1 Hu Jian, Hu Ke and Sun Shiqi are partners at Jingtian & Gongcheng.
2 The Ministry of Ecology and Environment, www.mee.gov.cn/ywdt/hjywnews/202011/t20201118_808637.shtml.
3 'A Green Poverty Alleviation Approach of Chinese Character', http://env.people.com.cn/big5/n1/2020/1016/c1010-31894610.html.
11 Supra note 9.
12 The Environmental Protection Law, Articles 59–61.
13 The Environmental Protection Law, Article 59.
14 The Environmental Protection Law, Article 44.
15 The Administrative Review Law, Article 2.
16 The Administrative Review Law, Article 12.
17 The Administrative Procedure Law, Article 2.
18 The Administrative Procedure Law, Article 14.
19 The Administrative Procedure Law, Article 26.
20 The Criminal Law, Article 338.
21 The Criminal Law, Articles 114, 115.
22 The Criminal Law, Article 152.
23 The Criminal Law, Article 339(1).
24 The Criminal Law, Article 339(2).
25 The Criminal Law, Article 408.
26 The Environmental Protection Law, Article 64.
27 The Tort Liability Law, Article 29.
28 The Tort Liability Law, Articles 26, 67.
29 The Tort Liability Law, Articles 28, 68.
30 The Tort Liability Law, Article 15.
31 The Environmental Protection Law, Article 66.
32 There are two conditions under Article 58: the social organisation is registered in the civil administrative departments of the people's government at the city (divided into districts) level or above in accordance with the law; and the social organisation has been specially engaged in public environmental protection activities over five consecutive years, without record of any violation of laws.
33 Lessons from the First Environment Public Interests Litigation, www.chinacourt.org/article/detail/2020/08/id/5397541.shtml.
34 The Environmental Protection Law, Article 54.
35 The Environmental Protection Law, Article 55.
36 The Law on the Prevention and Control of Atmospheric Pollution, Article 8.
37 The Law on the Prevention and Control of Atmospheric Pollution, Chapter 7.
38 MEE: Circular on the Adjustment of the Implementation Requirements of China VI Emission Standards for Light-Duty Vehicles, www.mee.gov.cn/xxgk2018/xxgk/xxgk01/202005/t20200515_779409.html.
39 The Law on the Prevention and Control of Water Pollution (amended in 2017, effective from 1 January 2018), Article 21.
43 The Law on the Prevention and Control of Environmental Pollution Caused by Solid Waste, Article 57.
44 The PRC President Order No. 8, 2018, www.npc.gov.cn/npc/xinwen/2018-08/31/content_2060158.htm.
45 The Law on the Prevention and Control of Soil Pollution, Article 4.
46 The Law on the Prevention and Control of Soil Pollution, Article 86.
47 The Law on the Prevention and Control of Soil Pollution, Article 90.
48 Fa Gai Qi Hou  No. 2347.