Table of Contents-4Ws

Transcription

1 Developing Environmental Law in Developing China Prof. Dr. Qin Tianbao Research Institute of Environmental Law Wuhan University Linz University June 25, 2013 Table of Contents-4Ws 1. Why we need it? - Environmental Problems in China 2. What is its Growing Pains? - Historic Development Stories of E law in China 3. How it works? - Big picture Overview of E law in China 4. Where is its future? - Trends of Development of E law in China 2

2 1. Why?-Environmental Problems in China 3 1. Environmental Problems in China 4

3 1. Environmental Problems in China 5 1. Environmental Problems in China 6

4 1. Environmental Problems in China 7 1. Environmental Problems in China 8

5 1. Environmental Problems in China 9 1. Environmental Problems in China 10

6 1. Environmental Problems in China 11 1.Environmental Problems in China 12

7 2. What is its Growing Pains? - Historic Development 1. Story One: Historic Development of Conferences and Red-head Documents 2. Story Two: Historic Development of Environmental Law What?-Historic Development Story 14

8 2. What?-Historic Development Story 1. Story One: Historic Development of Conferences and Red-head Documents (Policy): (1) 1970s-1980s The State Council held 7 national environmental protection working conferences since Third Plenary Session of the 11th Central Committee of the CCP The China made up the policy of reform and opening up, also decided to learn from the lessons experiences during the past ten years and lay the emphasis on the construction of democracy and rule of law What?-Historic Development Story (1)1970s-1980s The State Council Decision on strengthening environmental protection during adjusting national economy (1981) The State Council Decision on environmental protection (1984) The State Council Decision on further strengthening environmental protection (1990) 16

9 2. What?-Historic Development Story (2) 1990s-21st Century: Sustainable Development Stage The State Council s 10 Countermeasures about Environment and Development, and China s Agenda 21 (1994) The State Council Decision on several problems of environmental protection (1996) The State Council Decision on practicing scientific development concept and strengthening environmental protection (2005) What?-Historic Development Story National Environmental Protection Working Conferences (NEPWC) is a nationwide conference to make and implement environmental protection strategy and polices, discuss pollution and ecological damage problems from economic development, arrange short term tasks, strengthen environmental management and protection As the highest level conference on environmental protection, NEPWC happens usually every 5 years. 18

10 2. What?-Historic Development Story NEPWC What?-Historic Development Story 2. Story Two: Historic Development of Environmental Law (1) Preliminary and Starting stage : Constitutional law 1979 Environmental Protection Law (for trail) (2) Developing and Forming Stage: Constitutional law 1989 Environmental Protection Law (3) Improvement and Reform Stage: 1999-Current The Development in Constitutional Law Amendment and enactment of environmental law Macro-policy 20

11 2. What?-Historic Development Story (1) Preliminary and Starting stage : The Great Steel-making, Moving the mountains to create farmlands; Reclaiming land from lakes The ideal of conquering nature; Impossible is Nothing! What?-Historic Development Story 1972 UN Conference on Human Environment The Chinese representatives began to know the serious environmental problems in the world, and found the problem in China is as serious as that in other nations, if not more severe. A trial Standard on Three Wastes from Industry, Provisional Regulations on Pollution Prevention of Coast Waters. 22

12 2. What?-Historic Development Story 1978 Constitutional Law The conception of environmental protection was for the first time introduced into the Constitutional Law (art.11) It became the fundamental duty of the state, and it also determined that the pollution prevention and natural resources protection are the main realm of environmental law. Since then the legalization of environmental protection in China started What?-Historic Development Story 1979 Environmental Protection Law (for trial) Based on the clauses of Constitutional Law and the environmental situation in China, the 1979 Environmental Protection Law (for trial) took into consideration foreign experiences, and contained the regulation about the competent authorities, task and scope, the polluter pays principle and some institutions, such as EIA, emission charges, environmental standards, and so on. 24

13 2. What?-Historic Development Story (2) Developing and Forming Stage: Constitutional Law Art.26: The state shall protect and improve the living environment and ecological environment, and prevent pollution and other public nuisance. Art.9: two kinds of ownership for natural resources What?-Historic Development Story Rapid progress of environmental legislation Pollution Prevention: 1984 Water Pollution Prevention Law 1987 Air Pollution Prevention Law 1989 Environment Protection Law 1996 Law on Prevention of Environmental Pollution caused by Solid Wastes Nature (Resources) Conservation: 1984 Forest Law 1986 Fishery Law 1986 Mineral Resources Law 1986 Land Management Law 1988 Water Law 1988 Wildlife Protection Law 1991 Soil and Water Protection Law 1996 Coal Act. 26

14 2. What?-Historic Development Story Formation of a system of environmental law 1989 Environmental Protection Law : Chinese environmental law comes into a new stage (quasibasic environmental law) : sustainable development concept was accepted and play key role in environmental law. It is said that environmental law system in China began to shape in the end of 1990s What?-Historic Development Story (3) Improvement and Reform Stage: Current The Development in 1999 Amendments of Constitutional Law: The ideal of rule of law, establishment of a country under the rule of law was introduced into Constitutional Law, which is the milestone of Chinese ruling concepts. 28

15 2. What?-Historic Development Story Amendment and enactment of environmental law Amendment: Forest Law 1998 Land Management Law1998, 2004 Fishery Law 2000 Law on the Prevention of Environmental Pollution from Solid Wastes,2004 Water Pollution Prevention Law Enactment: Law on Combating Desertification 2001 EIA Law 2002 Cleaner Production Promotion Law 2002 Renewable Energy Law 2005 Law on promotion of Circular Economy What?-Historic Development Story Coming into 21 century, China environmental legislation also goes into a new stage. Its basic nature is to lead society respect to nature, to seek harmony between human being and nature. Conclusion: From the number of the environmental policy and law in different stages, we can draw an interesting conclusion : the policy was a super hero to deal with environmental problems from 1970s to 1980s,however from 1990s on, the law has played a more and more crucial role in environmental protection. 30

16 3. How it works? - Big picture Overview 1. Legislation and Legal Framework 2. Administrative Structure 3. Fundamental Principles and Legal Regimes How it works? - Big picture Overview 1. Legislation and Legal Framework (1) Legislation regime of China: National Level Constitution: made by NPC (National People's Congress) Law: made by NPC or NPC standing committee (161/2987) Regulation: made by the State Council Department rule: made by a ministry of the State Council Local Level Rule: made by a LPC or its standing committee Decree : made by a local government, basically provincial government 32

17 3. How it works? - Big picture Overview How it works? - Big picture Overview (2) Legal Framework (System) 34

18 3. How it works? - Big picture Overview (2) Legal Framework : Progress & Problem Progress: It has been an independent legal department. It has formed an system with the Environment Protection Law as a core and containing the subsections of pollution prevention law, nature resources use and management law, land remediation law, nature disaster restoration law,etc. Problem: On one hand, the legal system of Chinese environmental law needs further development. For example, the 1989 Environment Protection Law has many disadvantages in both its enacting organ and main content. On the other hand, there are some internal conflicts between the different environmental laws, especially the laws which were enacted earlier How it works? - Big picture Overview (2) Legal Framework : Future Roadmap One main trend is to improve the quality of environmental legislation, to avoid new shortcomings and deficiencies Integrated pollution control, integrated ecosystem management will be introduced into environmental law. Comprehensive Environmental Law or Basic Environmental Law is under discussion. 36

19 3. How it works? - Big picture Overview 2. Administrative Structure state power system in PRC Legislative power Administrative Power Judicial power How it works? - Big picture Overview State Power System in Most Western Counties 38

20 National People's Congress State Council Environment and Resources Protection Committee Environment Protection Minister Environment Protection Committee under the State Council (abolished in1998) Relevant sections such as land, forestry and water resources ministries Provincial Municipal and Rural Environment Protection Committee Municipal Municipal and Rural Environment Protection Committee Provincial Environmental Protection Bureau Municipal EPB Relevant sections Relevant sections 2. Administrative Structure for Environmental Protection in P.R.China Municipal and Rural Environment Protection Committee at County Level EPB at County Level Relevant sections How it works? - Big picture Overview 2. Administrative Structure : Environment Protection Leading Group : Construction Ministry-Environment Protection Department : National Environmental Protection Agency (NEPA, Vice ministry level) : State Environmental Protection Administration (SEPA, ministry level) 2008-now: Ministry of Environment Protection-MEP 40

21 3. How it works? - Big picture Overview 2. Administrative Structure :Progress & Problem Progress: China has established an administrative system, where the National People's Congress legislates and supervises, the government enforces. And the unified administration and management combines with division of responsibility, centralized regulation combines with local administration. Problem: The duty among different departments conflicted and intersected, which is aggravated by the lack of leadership between them. Thus it leads to the mission creep competition and buck passing How it works? - Big picture Overview 3.Fundamental Principles and Legal Regimes (1) Fundamental Principles progress The idea of sustainable development has permeated into every aspect of daily life and become the guiding ideology in development environmental law. In past years the concepts of prevention and precaution, polluter pays and public participation has been introduced into environmental law and become its principles. 42

22 3. How it works? - Big picture Overview Problem The guiding ideology and principle keeps in tough with the shift of national policy and development strategy in China, which may affect the stability and the authority of environmental law How it works? - Big picture Overview 3. Fundamental Principles and Legal Regimes Progress (2) Legal Regimes The classic conclusion: the old three (EIA, Three- Simultaneous Regulation, Pollution charge); the new five (pollutant discharging license, centralized pollution control, undertaking treatment within a prescribed limit of time ) New emphasis: environmental tax and charges, integrated eco-system management, cleaner production, payment for environmental services 44

23 3. How it works? - Big picture Overview Problem There are only abstract regulations but not practical and operational rules. Eg. The SEA, postevaluation are not contained in 2002 Environment Impact Assessment Law. This is also true with the regime of payment for environmental services. This is also the main reason of the bad achievements of effectiveness of these legal regimes Where s its future?-trends of Development 1. Scientific and Economic Incentives Scientific technology and economic incentives will play a more important role in environmental law. 2. Public Participation: Civil right progress will strengthen supervision to environmental law enforcement. 3. Environmental Protection Court: Judicial department will play more important role in environmental protection. 4. Internationalization of Environmental Law: International cooperation spurs stricter environmental legislation. 46

24 4. Where s its future?-trends of Development 1. Scientific and Economic incentives Science and technology will play a more role in environmental law. The institutions, such as environment standard, environment label, environment monitoring, reflects the combination of science and law. More attention has been attached to economic incentives, such as pollution charge, environmental tax, emissions trade and deposit. Eg. Plastic Bags Ban Where s its future?-trends of Development 2. Public participation China has realized gradually, given the limited ability of government and market failure, China shall establish and maintain a strong and active third sector, the civic society. Access to information Participation in Decision-making Access to justice? 48

25 4. Where s its future?-trends of Development Where s its future?-trends of Development 50

26 4. Where s its future?-trends of Development Where s its future?-trends of Development The Regulation on the Disclosure of Government Information ( 政府信息公开条例 ) was formulated by the State Council in 2007 and is a comprehensive and separate legal regime for the disclosure of government information. Measures for the Disclosure of Environmental Information (for Trial Implementation) ( 环境信息公开办法 ( 试行 )were formulated in 2007 in accordance with the Regulation on the Disclosure of Government Information and the Law on Promoting Clean Production. 52

27 4. Where s its future?-trends of Development To better implement the provisions on public participation in the EIA Law, the former State Administration of Environmental Protection formulated the Interim Measures on Public Participation in Environmental Impact Assessment, which entered into force on 18 March Where s its future?-trends of Development 3. Environmental Protection Court: Judicial department will play more important role in environmental protection. The pilot work of environmental protection court in recent years brought new hope. In recent years, to deal with the multiple environmental pollution incidents,guiyang Wuxi Kuming Yuxi in China founded environmental court in succession, which is a good exploration.. 54

28 4. Where s its future?-trends of Development Environmental protection court in Guiyang intermediate people's court and environmental protection court in Qingzhen people's court were set up simultaneously on November 20th Where s its future?-trends of Development 4.The Internationalization of Environmental Law The interaction between domestic environmental law and international environmental law and foreign environmental law is increasing greatly. The increasing EU s influences in China s Environmental law. Politically the Chinese officials often feel safer to refer the European models rather than the US model; EU has been the leaders in many environmental regimes; the US s self-isolation in environmental cooperation. 56

29 CONCLUSION Environmental law obtained more priority position in the whole legal system with the implementation of sustainable development strategies and the construction of the Green Society. The philosophy of environmental law will continue to be updated, such as the concepts of ecological civilization, environmental democracy and integrated decision-making. 57 Thank you! Comments and Questions? 58

30 Contact Information Associate Dean for Research and International Affiliations, School of Law, Wuhan University Secretary-General, China Society of Environmental and Resources Law (CSERL) Tel/Fax: (O)