Environmental Governance and Sustainable Development

Achievements, Drawbacks and Further Development of Environmental Law in China

CAI ShouqiuProfessor in Law, Wuhan University

President of China Environmental Law Society

caishouq@public.wh.hb.cn

Outline

Achievements of environmental law in China

Drawbacks of environmental law in China

Further development

Achievements of EL in China

Prominent achievements in environmental law in China have been gained since the foundation of this country in 1949, particularly since Reform and Opening up in 1978.

1. Environmental legal system,horizontally and vertically, has been built up

10 pieces of laws on pollution control 14 pieces of laws on nature conservation and

resource (including energy) utilization 20 pieces of other relevant law 1600 pieces of departmental rules and resolutions 10 pieces of military law and regulations 1100 pieces of national standards on environmental

protection

60 treaties on environmental protection and nature conservation

40 pieces of bilateral environmental agreements and memorandum of understanding on environmental affairs

10 bilateral environmental agreements or memorandum of understanding on nuclear safety

Special committees ,say Committee on Environment and Resource, which are in charge of environmental legislation and related issues are set up by National People’s Congress and Chinese People’s Political Consultative Conference.

Ministries and committees specifically responsible for the functioning of environmental law are also established in State Council.

2． Sustainable development, which is characterized by integration, environmental democracy, ethic concern, and economic tools within the social and cultural context in the country, has become a guiding notion for environmental law in China.

Priority of environmental law in ensuring sustainable development

New concepts such as prevention, precaution, life-cycle management, clean production, source control, quantity management and recycling economy all demonstrate China’s objective and practical endeavors to sustainable development.

Sustainable development is depicted in some legal documents

China’s Agenda 21: White Paper on China’s Population, Environment, and Development in the 21st Century

Land Administrative Law of P. R. C Marine Environment Protection Law of P. R. C (revised in 1999) Law of P. R. C. on Prevention and Control of Atmospheric

Pollution (revised in 2000) Law of the P. R. C. on Prevention and Control of Desertification

(2001) Law of P. R. C. on cleaner production (2002) Law on EIA (2002), Law of P. R. C. on Prevention and Control

of Water Pollution (revised in 2008) Water Law (revised in 2002) Law on Promotion of Recycling Economy (2008)

3. The emergence of environmental governance in China

Article 6 of the Environmental Protection Law of P. R. C. stipulates that every individual and entity has a duty of care for environment, they also have the right to accuse polluters and those who brings other damages to the environment. This is the principle base for public participation in environmental protection.

China’s Agenda 21, Decision of the State Council on Several Issues of Environmental Protection (1996), Legislation Law (2000), Regulation on Procedure of Making Administrative Regulation (2001), Regulation on Procedure of Making Rules (2001), Regulation on Disclosure of Government Information (2007), Interim Measures on Disclosure of Environmental Information (2007), Environmental Protection Law and so force have provisions on public participation and environmental information disclosure.

Interim Measure on Disclosure of Environmental Information enacted on April 4th, 2007 provides the administration, principle, scope and procedure with respect to environmental information disclosure. It also explicate requirement of information disclosure by industries, and the inspection need.

4． Basic principles and basic regulatory regime are gradually developed

integration of economic, social and environmental concerns; integration of exploitation, utilization, protection and improvement; precautionary and preventative principle; PPP; Principle of public participation

environmental standard; Environmental Impact Assessment; administrative permit; mandatory construction of pollution control facilities; emission registration; fixed-time treatment; environmental emergency response etc..

5．Roles of environmental law in environmental protection, New-society construction and international environmental corporation Provides legal basis for environmental government of the

country Protects citizens from pollution, resource shortage and other

environmental degradation Integrates economic, social and environmental dimensions Educates people and helps to improve their environmental

awareness Offers foundation to corporation within international

community

6． Environmental law education in China

In nowadays China, environmental law has become a new, cross-cutting whereas independent discipline. Since 1970s, it was growing as one of the most active areas in legal research and education. Special regulative system, concepts and theoretic framework come into place in the last few decades.

67 master degree programs and 15 doctoral degree programs in environmental law are established up to 2008;

1,000 graduate students for master degree and another 100 for doctoral degree enroll every year;

Environmental Law Society have successfully hold 11 annual conferences with more than 200 participants;

100 professors and several hundreds of associate professors, lecturers and doctorate students;

Research Institute of Environmental Law, co-founded by State Environmental Protection Administration (renamed as Ministry of Environmental Protection in 2008) and Wuhan University is a National key Discipline as well as Key Research Institute of Humanities and Social Science approved by MOE.

Drawbacks of EL in China

1. Drawbacks in Environmental legislation Incomplete environmental legal system Regulatory gap and weakness Unenforceable provisions Insufficient regulation on governmental behavior Ignorance to environmental governance and

environmental good governance Weak government environmental responsibilities Too nice to offenders

2. Drawbacks in functioning of environmental law

Not all the laws and regulations are complied with, not all of them are strictly implemented, not all behaviors against the law are prosecuted

Heavily fragmented administration. Over-reliance on power overshadows faith in law. Outside disturbances, such as bribe, pressure or

private relationship result in defective functioning of environmental law in China.

The courts’ role within the process is far from satisfactory.

Unregulated governmental liability and environmental localism are two prominent barriers.

Disobedience to environmental law prevails in current China.

Further development

1． Environmental legislation

Umbrella environmental legal system Current Environmental Protection Law of P. R. C New legislations on soil pollution, chemical

management, wetland protection, natural reserve, coast management, animal protection, river catchment management etc.

2． Implementation of environmental law

The environment and its environmental protection administration keeping on dominating implementation of environmental law. However, transparency, accountability and efficiency are challenges that they have to be faced with.

2． Implementation of environmental law

The government and its environmental protection administration keeping on dominating implementation of environmental law. However, transparency, accountability and efficiency are challenges that they have to be faced with.

Since 2004, environmental courts were set up successionally in several provincial and local courts in Hebei, Guizhou, Jiangsu and Yunnan province.

It is worth mentioning that environmental policemen came into being in Kunming, Yunnan province in last year.

Up to October 2008, 3539 environmental organizations have been set up in China, including Hong Kong, Macau, and Taiwan. 1309 of them are sponsored by government; 1382 of them are school oriented; 508 of them are grassroot environmental organizations; 90 of them are division of international environmental organizations. The total number was increased by 771 compared with that in 2005. 300 grassroot environmental organizations, mainly lying in Beijing, Hubei, Yunnan and Xizang, were also established in the same two years.

3． Future development in environmental research

A transcendence from Subject-object Dichotomy rooted in modern science and society to paradigm of Subject-object Integration (Subject-object holism) is vital to future environmental law research. Subject-object dichotomy is characterized by artificial division between self-other, human beings and other beings, idea and matter, I-thou relationship and relationship with other beings. Subject is mechanistically equivalent to human beings and object is to other beings. A conceptual confusion between subject/object and human beings/other beings is embedded in this metaphysics. If we explore the core of it, we will notably find anthropocentrism and human chauvinism.

The conversion from economic man, subjective man to ecological man helps to escape from worship of economic growth, superstition of absolute power of human, and both of which undoubtedly result in imbalance between human and nature.

The construction of Harmonious Society， Ecological civilization, Resource-Efficient Society, Environment-Friendly Society and Cycling economy Society provides solid background and deep insights for environmental law research. One of them is incorporation of environmental law and environmental ethics.

Further research on the guiding notion, basic concepts and basic principles of environmental law is needed.

Further research on comprehensive regulatory mechanisms of environmental law including administrative regulatory mechanism dominated by government, market mechanism led by enterprises and social mechanism mainly operated by Non-governmental Organizations should be enhanced. Ecological regulatory method and mechanisms in environmental law within the context of environmental governance and good governance is one of the most important ways forward.

Integrated Ecosystem Approach, specified into Integrated Ecosystem Management in environmental law and bases on modern theory of Ecology and Governance is a critical application of ecological regulatory methods and mechanism.

Researches on regulatory regime, environmental legal responsibilities, particularly government environmental responsibilities, public participation and so force need to be further enhanced. Environmental liability aiming to prevent and remedy environmental damages should be paid special attention to among other.

Thanks for your attention!