Making a case for green over greed

By Wang Jihong and Shi Jie, V&T Law Firm
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After 20 years of frantic development, the problem of environmental pollution has become the focus of what today constitutes a threat to national and public safety in China. A complete break with the past is now imperative. The 1989 Environmental Protection Law is being amended and debate on the relationship between economic development and environmental protection has been especially heated, all of which will directly affect the future development of the economy and society.

Through an analysis of the draft Bill to Amend the Environmental Protection Law, on which the Commission of Legislative Affairs of the Standing Committee of the National People’s Congress is seeking comment, the authors hope to establish the need for China to adopt the basic principle of prioritising environmental protection over GDP growth.

Environment v development

With respect to the above, revisions made to the first and fourth paragraphs of article 12 in the 2012 draft bill are the most significant. The first paragraph specifies that the State Council’s environmental protection authority, in concert with other relevant State Council authorities, will prepare the national environmental protection plans based on outlines of the plans for the development of the national economy and society.

Wang Jihong Managing Partner V&T Law Firm
Wang Jihong
Managing Partner
V&T Law Firm

After careful consideration by the State Council’s macroeconomic control authority (i.e. the National Development and Reform Commission, or NDRC), they will be submitted to the State Council for approval, and then promulgated. The fourth paragraph specifies that the environmental protection plans should dovetail with the national plans for main functional areas, land use plans and urban and rural plans.

Clearly, the current draft reflects the legislative philosophy of development first, with the environment giving way to development. The provisions of the first paragraph signify that the issuance of the environmental plans will be comparable to a difficult birth, due to the long back-and-forth seesawing with numerous authorities, and more prominently highlight the policy of the environment giving way to economic development, according the NDRC precedence over the state’s environmental protection authority, which originally ought to have been at the same level of authority. This in fact strips the environmental protection authority of its duties.

The requirements in the fourth paragraph mean that an environmental protection plan needs to be carried out under the existing national plan for main functional areas, land use plan and urban and rural plan, and will be hemmed in by those plans. From this, one has an inkling of how low a priority the environmental protection plans are given, which represents a step backward for environmental protection in China.

The existing provision in article 4 of the Environmental Protection Law (1989), reading: “national environmental protection plans must be included in the plans for the development of the national economy and society” should be retained and inserted into article 12. The first paragraph of article 12 thus revised would read as follows: “The State Council’s environmental protection authority shall be responsible for preparing the national environmental protection plans and shall submit them to the State Council for approval, whereupon they shall be published and implemented.

National environmental protection plans must be included in the plans for the development of the national economy and society, and the national plans for main functional areas, land use plans and urban and rural plans must dovetail with the environmental protection plans”.

This would ensure that environmental plans are elevated to the same level as plans for the development of the national economy and society, becoming part of fundamental national policy and forming the basis and precondition for the formulation of all other development plans.

Pollution control targets

China began to implement the total volume control system at the end of the 20th century. In the 11th and 12th Five-Year Plans for the development of the national economy and society, all key pollutant reduction targets were listed as binding targets.

Shi Jie Partner V&T Law Firm
Shi Jie
Partner
V&T Law Firm

The Law for the Prevention and Treatment of Water Pollution and the Law for the Prevention and Treatment of Air Pollution also contain provisions addressing the total volume control system. The setting of targets for controlling the total volume of pollutants, and the determination of the authority responsible for distributing such targets is a critical indicator of whether China is implementing the principle of environment first, or development first.

Regrettably, the draft puts forward the following perspective: “the State Council’s development and reform authority, in concert with relevant authorities, shall propose its opinions on the distribution of binding targets for the control of the total volume of pollutants that the state deems key, and submit them to the State Council for its approval”. This delegation further demonstrates China’s continued adherence to the “development first principle”, which will undoubtedly further sharpen the conflict between economic development and environmental protection.

If one genuinely wishes to control the total volume of pollutants, it is necessary to stress the principle of environment first and delegate the duty of drafting the opinions on the distribution of targets to the environmental protection authority.

Legislative opportunity

After having experienced an overheating economy and severe environmental degradation, “environment first” has become the mantra of people of conscience. China’s economic might has also laid a solid material foundation to place environmental protection above the single-minded pursuit of economic development and make a wise legislative decision for future sustainable development.

It is hoped the legislative authority will grasp the opportunity to revise the Environmental Protection Law and make the correct choices in the relationship between the environment and development, establish a legislative philosophy that places the environment first and fully implement and reflect this in specific provisions.

Wang Jihong is the managing partner at V&T Law Firm; Shi Jie is a partner at V&T Law Firm

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