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SHENZHEN, China--A second draft of amendments to China’s Environmental Protection Law has drawn criticism from advocacy groups and legal experts for restricting the right to file public interest lawsuits to just one government-affiliated body, but also drawn their praise for increasing public disclosure requirements, ensuring public participation in impact assessments, and raising potential penalties for polluters.
The draft was officially released by the Standing Committee of the National People’s Congress on July 17, following review by the State Council's Legislative Affairs Office (36 INER 362, 3/13/13).
The amendments would be the first update to the law since 1989. The draft could be further revised after a public comment period ends Aug. 18, and it is unclear when the National People's Congress might adopt the amendments. A first draft of the amended law was released for public comment in August 2012.
The second draft stipulates that only the All-China Environment Federation (ACEF), a government-created organization directly affiliated with the Ministry of Environmental Protection, may file public interest lawsuits related to the environment in China’s courts.
Environmental groups say this would restrict the public's ability to get major environmental cases heard in court.
Ge Feng, public outreach coordinator for the Friends of Nature in Beijing, told BNA July 30 that if the amendments are approved, groups like his will no longer be able to file such lawsuits.
Ge said Friends of Nature filed a public interest environmental lawsuit in 2011 in a pilot environmental court in Yunnan province. “The case is still being processed, and the local court has accepted our request [to file the lawsuit],” Ge said. “But if ACEF is appointed [as the only official organization allowed to file such lawsuits] it might undermine the case.”
According to Chinese rules on legal procedure, the accepted case cannot be thrown out because of changes to the law. However, Friends of Nature believes it could not win the case if the provision on ACEF is adopted into law, since it would not reflect well on the government’s decision to add the stipulation.
While such groups have criticized the restrictions on public interest lawsuits, they said other portions of the second draft are stronger regarding public disclosure of environmental violations, public participation in impact assessments, and penalties for polluters.
Xia Jun, a member of the Environment and Resources Committee of the China Lawyer’s Association, told BNA that other than the public interest litigation issue, much of the second draft's environmental provisions showed actual improvement.
Xia said the National Development and Reform Commission “had too big of a say in the first draft, but the MEP [Ministry of Environmental Protection] has had some impact” on the latest draft.
In October 2012, the ministry issued a public letter raising 34 specific objections to the first draft of amendments. That measure went to the State Council earlier this year for another round of revisions (35 INER 1121, 11/20/12).
Ge said other than the provision on public interest litigation, the latest draft takes better advantage of judicial practices and is more consistent with recent environmental regulations, in particular in articles on disclosure of pollution information and on public participation in impact assessments, which she called a “positive move.”
A full chapter, Chapter V, is now devoted to environmental information disclosure and public participation. It includes articles that would require companies to make public their major emissions and pollution information and would require environmental impact assessments to include a public participation process.
Xia pointed out the addition of an article which says that if companies fined for polluting do not make efforts to remediate the pollution problem, authorities can increase the penalties. “Only Chongqing and Shenzhen [municipalities] have had similar regulations,” Xia said, “so this is the first time it is promoted at the national level.”
A long-standing problem in enforcing existing environmental regulations in China, even many that experts say are progressive, involves local governments protecting local companies because the governments do not want to lose the revenue the businesses generate. In addition, local environmental protection bureaus do not have much authority because they are directly under the jurisdiction of local governments.
The latest draft has language that suggests local officials would be held administratively responsible if they do not act on serious pollution incidents and could be forced to resign, but it does not specifically say what the legal consequences would be for those officials if they fail to act or resign, Ge said.
“I’m not sure [the amended law] can effectively reverse the trend of local protectionism,” Ge said. “Personally, I think public participation and changing our views about development are the best ways to treat the problem from the bottom up.”
On July 22, People’s Daily, the official newspaper of the Communist Party of China, published a front-page article about the “awakening of ecological civilization” due to pressures put on the environment. It appeared under the pseudonym Ren Zhongping, which is often used for articles meant to both push public opinion and guide official behavior.
Xia said tackling local protectionism will require both more public participation and improved judicial and legislative channels for regulations to be enforced.
The second draft of amendments to China's Environmental Protection Law is available at http://bit.ly/161YlLJ.
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