Environmental Protection Law Draft Revisions: Authorities Remove Language Regarding Strengthening Public Participation, Accountability, and Transparency

Drafters Removed Proposed Language Encouraging Public Participation
Authorities removed language from draft revisions to the 1989 Environmental Protection Law (EPL) that stipulated stronger support of public participation in environmental affairs. Between February and September, they reportedly removed the phrase "the state encourages public participation in environmental protection" from Article 6 (Caixin, via Sina, 05 December 11 and Caixin, via QQ.com, 6 December 11). In February 2011, the Ministry of Environmental Protection [MEP] reportedly provided a draft for limited circulation and review by select central- and local-level officials and experts before sending a revised draft to the Environmental Protection and Natural Resources Conservation Committee (EPNRC) of the National People's Congress in September, according to the same articles. It is unclear exactly who wanted the language removed or why. There may be a link between the lack of public participation before construction of polluting projects and citizen grievances afterward. One Chinese scholar drew a connection between the lack of public oversight and public opposition later in several cases involving polluting enterprises (Chinadialogue, 6 September 11). According to another Chinese scholar, disputes about environmental pollution have increased by 20 to 25 percent each year since the mid-1990s (Chinadialogue, 23 September 10).

Drafters Remove Proposed Language Regarding Enforcement, Accountability, and Transparency
Drafters of the EPL also removed some language that could have strengthened incentives conducive to improved official accountability and enforcement in the environmental sector at the local level, including making the performance of local governments more transparent (Caixin, 8 December 11 and 6 December 11), as the following examples illustrate:
 

1. By September, authorities had removed proposed language in Article 22 which stated that "the national government should assess the environmental performance of local governments," and that the MEP "in conjunction with State Council supervisory agencies will meet with relevant responsible government officials from provinces, autonomous regions, and municipalities and circulate nationally the names of local governments that do not meet environmental targets."
2. Authorities removed language from Article 23 contained in the February draft, which reportedly stated that governments at all administrative levels would report to people's congresses at the same level regarding their progress toward achieving environmental targets and accept supervision from the congresses.
3. Authorities also removed language regarding official assessment of fines on a daily basis for enterprises that do not rectify illegal polluting behavior within a specified time frame, which weakens the incentive for compliance.

The lack of compliance with and weak enforcement of environmental laws reportedly are problems China has faced for many years (Benjamin van Rooij, Development and Change, 26 April 06 and Chinadialogue, 23 September 10). In addition, many viewed the EPL as inadequate because the pollution fines it provided for have been insufficient to deter polluting behavior, according to an October 2011 Winston & Strawn Law Firm briefing.

Scope of Revisions Limited, Government and Expert Input Sought in Drafting Process, NGOs’ Role Not Yet Clear
The EPNRC dictated the scope and main directions of revisions when it first requested the MEP to draft proposed language in January 2011. The EPNRC requested a draft focusing on specific areas ("eight plus one" topics) with "limited goals and a focus on key points," according to the same article. (For one version of the list of the "eight plus one" focus points, see the October 2011 brief by Winston & Strawn.) Many Chinese scholars reportedly believe that the EPNRC limited the scope of revisions in order to avoid conflicts among central-level ministries, commissions, and local governments, according to the December 6 and December 8 Caixin articles.

Authorities conducted research and solicited suggestions from select central- and local-level officials in the period between the February and September drafts. In April 2011, the EPNRC in conjunction with MEP conducted research on implementation of the EPL in at least two provinces—Hunan and Hubei (Caixin, via QQ.com, 6 December 11). In addition, the organizations held at least three forums to discuss the proposed revisions and to collect suggestions from central-level ministries, legal experts, and local people's congresses and governments in Wuhan city, according to the December 6 Caixin article, and in two locations in Hunan province (NPC, via Yueyang Daily, 18 April 11 and National People's Congress, 13 April 11).

It appears that authorities have not yet solicited input from the public or the environmental non-governmental sector. One organization, however, the MEP-affiliated All-China Environmental Protection Federation (ACEF), apparently has on its own initiative, tried to engage in the drafting process. In March 2011, the United Nations Development Program and the ACEF convened a small forum with ACEF representatives and a few legal experts to discuss the MEP proposed draft revisions, according to a 7 March 11 ACEF article. The same article did not provide information about if or how the opinions voiced at this meeting were incorporated into the drafting process. Authorities have not yet solicited suggestions from the general public and will not likely do so until the NPC Standing Committee completes the first reading of the draft revisions. A 2008 Standing Committee mandate stipulates that, in general, authorities make draft laws available to and solicit suggestions from the public (NPC Standing Committee. 21 April 08). China's Legislation Law also provides for public input on draft laws (Article 35). A September 2009 article by Jamie Horsley includes a discussion of public participation in legislative processes. According to this article, soliciting public input on most draft laws has become a fairly standard practice.

Background and Drafting Process
Chinese lawmakers passed the Provisional EPL in 1979 and the EPL in 1989, which they have not amended since, despite worsening environmental problems and calls to amend the law, according to the December 8 Caixin article. In the interim, the article argues, lawmakers enacted almost 30 other environmental laws, the provisions of which reportedly became surrogates for the EPL. According to the same article, one Chinese scholar noted that the EPL has existed in name only for many years. In recent years, calls to revise the law came in rapid succession, according to the December 6 Caixin article, via QQ.com. The NPC received 75 motions to revise the EPL between 1995 and 2011, according to the April 13 NPC article.

The drafting process consists of several major steps, is ongoing, and the proposed revisions still contain new language related to environmental transparency. In January 2011, the EPNRC formally requested the MEP submit draft revisions to the EPL for review during the 2011 legislative session that ended in March 2012, according to the December 8 Caixin article. In February 2011, after MEP officials drafted proposed revisions, the ministry reportedly provided a draft (xiugai jianyi chugao) for limited circulation to gather suggestions from ministries, commissions, and local officials (Caixin, 5 December 11 and 6 December 11). On September 7, after considering research findings and suggestions, the MEP sent the revised draft to the EPNRC, according to the December 5 Caixin article. In early November, after the EPNRC made revisions, it sent the EPL "examination draft" (songshengao) revisions to the NPC Standing Committee, according to the same article. According to the December 6 Caixin article, authorities are still making changes to the draft. While scholars believe the new draft revisions still may be unenforceable because they lack explicit penalties, the revisions for the time being still contain some “bright spots.” For example, the September draft reportedly still includes some new language related to governmental and enterprise environmental transparency.

For more information on environmental law and its implementation, as well as public participation in environmental policymaking and environmental transparency, see Section II—The Environment in the CECC 2011 Annual Report.