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Innovative measures to improve environmental law enforcement in China

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Abstract

This article examines innovative measures aiming to improve environmental law enforcement in China, with a focus on the “collaborative enforcement” mechanisms that include EPB–PSB collaboration, compulsory case transfer, and multi-party collaboration through environmental courts. Joint enforcement action by the Environmental Protection Bureau (EPB), the police and the institutionalization of the environmental police emerged as local responses to the weak enforcement powers granted to EPBs and the consequent difficulties they encounter on routine basis. The compulsory case transfer mechanism aims to tackle the problem of “substituting administrative penalty for criminal liability” as a result of administrative inaction. By strictly constraining administrative discretion, the compulsory case transfer mechanism seeks to ensure that potentially liable parties are investigated, prosecuted, convicted and penalized in a timely manner so as to deter violations. The multi-party collaboration through the operation of environmental courts is both innovative and highly controversial. Such collaboration is innovative in the sense of combining civil, criminal and administrative jurisdictions in a specialized environmental court, recognizing the standing of procuratorates and environmental NGOs to sue in public interest litigations, and alleviating financial burdens for plaintiffs in such litigations to foster more and better use of public interest litigations to protect the environment. It is, however, controversial as the strong emphasis on multi-party collaboration among the EPB, the police, procuratorate and court prior to trials has blurred the boundaries of administrative, investigative, procuratorial and adjudicative powers in operation. While these innovative measures are not flawless and should not be seen as panacea to clean up China’s damaged environment, they do offer hopes of improved and strengthened environmental law enforcement at least in the short term.

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Notes

  1. Environmental pollution is already affecting social stability. Mass incidents triggered by pollution have been on the increase at an average rate of 29 percent annually from 1996 to 2011 according to a former senior staff of the Ministry of Environmental Protection. See 杨朝飞 (Yang Zhaofei) 2012.

  2. For general discussion, see Ma and Ortolano 2000; McElwee 2011; Alford and Shen 1997.

  3. Becker, 1968, p. 169–217. As explained by Becker, “crime” should be understood broadly to cover all violations in his analysis throughout the article. See p. 170.

  4. Abbot 2009.

  5. 储皖中 (Chu Wanzhong) 2008.

  6. 阳宗海案件一审判决始末 (The Case of YangZongHai First Instance Trial Concluded), 中国环境报 (China Environment News), at p. 7 (17 June 2009).

  7. The polluter, Yunnan Chengjiang Jinye Industrial and Trading Co. Ltd and individuals in charge were prosecuted for the crime of causing serious environmental pollution. A total of 26 officials were imposed administrative disciplinary penalties, including removal from position. Three were prosecuted for the crime of environmental dereliction of duties. See 阳宗海案件一审判决始末 (The Case of YangZongHai First Instance Trial Concluded), 中国环境报 (China Environment News), at p. 7 (17 June 2009); 洪尚群 (Hong Shangqun) 2011, p. 5.

  8. 张雯雯 (Zhang Wenwen) 2012, p. 1.

  9. The local institution building was achieved under the 关于建立环境保护执法协调机制的实施意见 (Opinion to Implement Collaborative Mechanisms for Environmental Law Enforcement) (Kunming Opinion) jointly promulgated by the Kunming Intermediate People’s Court, Kunming PSB, Kunming People’s Procuratorate and Kunming EPB on 5 November 2008. The environmental units thus established are known as PSB Environmental Branch, Environment and Resources Procuratorial Unit, and Environmental Courts respectively.

  10. Zhejiang Provincial EPB and Provincial PSB jointly promulgated the 关于建立环保公安部门环境执法联动协作机制的意见 (Opinion on Building Collaborative Enforcement Mechanism Between the Environmental Authorities and the Police) (Zhejiang Opinion) in 2012, attaching 浙江省环境违法案件移送公安机关调查处理的实施细则(试行) (Detailed Implementation Rules on Transfer of Environmental Violation Cases to PSBs (for Trial Use)) (Zhejiang Implementation Rules). Shandong Provincial PSB and Provincial EPB jointly promulgated the 全省公安环保联勤联动执法工作机制实施意见 (Opinion to Implement Collaborative Enforcement Mechanism Between the Environmental Authorities and the Police) in 2013.

  11. 河北出台大气污染治理十条措施 明确牵头部门 (Hebei Promulgates Ten Measures to Control Air Pollution Clarifies Responsible Parties), 河北日报 (Hebei Daily), 5 September 2013.

  12. 汪劲 (Wang Jin) 2011, p. 164. Also see 林秀红 (Lin Xiuhong) 2012, p. 5–8.

  13. A recent high-profile case involved the brutal attack on six EPB officers who were investigating pollution caused by illegal dumping of toxic wastewater in Shandong Province. For more details, see 周雁凌 等 (Zhou Yanling et al.) 2013, p. 1. Also see 汪劲 (Wang Jin) 2011, p. 222.

  14. Where a party liable to a fine refuses to pay by the due date, EPB has no coercive power to enforce it. It has to apply to the court for enforcement. These are generally known as “non-litigation” administrative execution cases. Courts have the coercive power to detain individuals for up to 15 days, and to seize, freeze or auction assets.

  15. 孙佑海 (Sun Youhai) 2012, pp. 11–23.

  16. Kunming Opinion, sec. 3. Here emergency includes but is not limited to obstruction of environmental law enforcement with or without violence.

  17. Zhejiang Opinion, sec. 2(2).

  18. Zhejiang Implementation Rules, sec. 2.

  19. Zhejiang Implementation Rules, sec. 3(2).

  20. 周雁凌和王学鹏 (Zhou Yanling and Wang Xuepeng) 2013, p. 3.

  21. 龙玉琴和王殿学 (Long Yuqin and Wang Dianxue), 2013.

  22. Zhejiang Opinion, sec. 2(1).

  23. 周雁凌和季英德 (Zhou Yanling and Ji Yingde), 2012, p. 3.

  24. 河北出台大气污染治理十条措施 明确牵头部门 (Hebei Promulgates Ten Measures to Control Air Pollution Clarifies Responsible Parties), 河北日报 (Hebei Daily), 5 September 2013.

  25. 邢捷 (Xing Jie) 2012, p. 34–40.

  26. 资敏 (Zi Min) 2009.

  27. Environmental pollution accidents had been reported under the 报告环境污染与破坏事故的暂行办法 (Provisional Measures on Reporting of Accidents of Environmental Pollution and Destruction) (1987), which was repealed in 2006 and replaced by the 环境保护行政主管部门突发环境事件信息报告办法(试行) (Measures on Reporting of Environmental Emergencies (for Trial Use)) (2006).

  28. Environmental emergencies are reported under the 环境保护行政主管部门突发环境事件信息报告办法(试行) Measures on Reporting of Environmental Emergencies (for Trial Use) (2006), which was repealed in 2011 and replaced by the 突发环境事件信息报告办法 (Measures on Reporting of Environmental Emergencies) (2011).

  29. See official data published by the state environmental protection authority (previously State Environmental Protection Administration and now Ministry of Environment Protection) in 中国环境年鉴 (China Environment Yearbook) (2003–2012).

  30. The amended art. 338: Whoever, in violation of the state provisions, discharges, dumps or disposes of any radioactive waste, any waste containing pathogens of any infectious disease, any poisonous substance or any other hazardous substance, which has caused serious environmental pollution, shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine; or if there are especially serious consequences, be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.

  31. 中华人民共和国水污染防治法 (WPPCL) (2008), art. 90.

  32. 中华人民共和国治安管理处罚法 (SAPL) (2005), art. 10.

  33. 中华人民共和国治安管理处罚法 (SAPL) (2005), art. 30.

  34. 中华人民共和国治安管理处罚法 (SAPL) (2005), art. 18.

  35. 全国人大法工委《对违法排污行为适用行政拘留处罚问题的意见》 (NPCSC Legislative Affairs Commission’s Opinion on Punishing Illegal Discharge by Administrative Detention) (2008).

  36. 中华人民共和国环境保护法 (Environmental Protection Law) (1989), art. 43.

  37. 中华人民共和国刑法 (Criminal Law) (2011), art. 338.

  38. 行政执法机关移送涉嫌犯罪案件的规定 (Provisions on Transfer of Cases Suspected of Criminal Violation by Administrative Agencies) (2001), art. 3. It was promulgated by the State Council on 9 July 2001 to ensure timely transfer of cases by the administrative agencies to public security organs to penalize crimes.

  39. 关于环境保护行政主管部门移送涉嫌环境犯罪案件的若干规定 (Provisions on Transfer of Cases Suspected of Environmental Crimes by Environmental Authorities) (2007), art. 3.

  40. 环境行政处罚办法 (Measures for Environmental Administrative Punishment) (2010), art. 16.

  41. Kunming Opinion, sec. 4. These include environmental violations that have caused serious loss to public or private property, death or injury, or threats to human health and are potentially criminally liable, and illegal discharge or deposit of toxic, radioactive, corrosive substances or other hazardous substances such as infectious pathogeny constituting illegal disposal of dangerous substances punishable by administrative detention.

  42. Kunming Opinion, sec. 5.

  43. Kunming Opinion, secs. 4 and 5.

  44. Kunming Opinion, sec. 11.

  45. Kunming Opinion, sec. 7.

  46. Kunming Opinion, secs. 8 and 9.

  47. Zhejiang Implementation Rules, art. 2.

  48. Macrory 2013; Carnwath 1992.

  49. Yunnan Provincial High Court Minutes (2009).

  50. Kunming Opinion, sec. 13. In China, courts are typically organized into civil division, criminal division, administrative division and enforcement division with different jurisdiction. Environmental courts with combined jurisdictions are exceptional.

  51. The Qingzhen Land and Resources Management Bureau case was an example in which court action helped spur the defendant agency to perform its duty to properly manage a water source protection area, a duty the agency had failed to perform for 15 years.

  52. Wan E’Xiang 2010, pp. 30–40. Justice Wan E’Xiang has been appointed Vice President of the Supreme People’s Court since 2000.

  53. Kunming Opinion, sec. 6.

  54. 昆明市环境公益诉讼救济专项资金管理暂行办法 (Provisional Measures on Managing the Fund for Environmental Public Interest Litigation) was promulgated by the Kunming Municipal Government on 25 October 2010.

  55. 云南省法院环境保护审判庭建设及审理环境保护案件座谈会纪要 (Minutes of the Yunnan Provincial High Court Meeting on the Establishment of Environmental Courts and Adjudication of Environmental Cases) (hereinafter Yunnan High Court Minutes) was issued on 13 May 2009 and served as guidelines for all courts in Yunnan Province.

  56. Yunnan High Court Minutes (2009).

  57. Kunming Opinion, sec. 2.

  58. Kunming Opinion, sec. 1.

  59. Zhejiang Opinion, sec. 2(1).

  60. Kunming Opinion, sec. 12.

  61. Yunnan High Court Minutes (2009).

  62. For more, see van Rooij 2006.

  63. A recent high-profile case involved the brutal attack on six EPB officers who were investigating pollution caused by illegal dumping of toxic wastewater in Shan dong province. For more details, see 周雁凌 等 (Zhou Yanling et al) 2013 p. 1.

  64. 中华人民共和国水污染防治法 (WPPCL), art. 27; 中华人民共和国大气污染防治法 (APPCL), art. 21; 中国人民共和国固体废物污染环境防治法 (SWL), art. 15(1). As an improvement, SWL art. 15(2) further provides that when conducting on-site inspections, the environmental officers may carry out monitoring, collect samples, inspect or photocopy records relating to prevention of pollution by solid wastes.

  65. 中华人民共和国水污染防治法 (WPPCL), art. 70 provides for order to rectify and a fine of 10,000–100,000 yuan as punishment imposed on those who refuse inspection or provide false data; APPCL, art.46 provides for order to stop the illegal act, rectification within a time limit, warning or a fine up to 50,000 yuan; SWL, art.70 provides for order to rectify within a time limit in case of rejection of on-site inspection and a fine of 2,000–20,000 yuan in case of failure to rectify or provision of false data.

  66. 中华人民共和国治安管理处罚法 (SAPL) (2005), art. 50.

  67. 中华人民共和国刑法 (Criminal Law) (1997), art. 277.

  68. This is common in other environmental law systems, for example, in the UK where the Environment Agency and the Scottish Environment Protection Agency enjoy such powers under the Environment Act 1995, ss. 108–111.

  69. The serious arsenic pollution of YangZongHai Lake in Yunnan in 2008 happened after the liable enterprise had been fined 15 times with total sum of 710,000 yuan over the years. See 茶莹 (Cha Ying) 2009.

  70. Criminal investigation of serious pollution cases frequently leads to further investigation of agency’s failure to perform its statutory duty to supervise and monitor, which then results in prosecution and conviction of individuals for the offence of environmental dereliction of duty and even the offence of taking bribes. For example, the serious cadmium contamination of LongJiang River in Guangxi Province in January 2012 has led to the conviction of the Head and Deputy Head of local Environmental Inspection Team for the offence of environmental dereliction of duty and the offence of taking bribes. Neither was the severe leakage of wastewater by Zijin Mining in Fujian Province in July 2010 an isolated incident. The Head and Deputy Head of Shanghang County EPB had been accepting bribes from 2004 and 2002 respectively to give green lights to the environmental violations of Zijin Mining.

  71. Provisions on Case Transfer (2001), art. 16.

  72. See 汪劲 (Wang Jin) 2011, pp 297–298.

  73. Stern 2013, p. 119.

  74. Yunnan High Court Minutes (2009).

  75. Zhejiang Opinion, sec. 2(1).

  76. 袁学红 (Yuan Xuehong) 2012, pp. 173–176.

  77. This is a very small case load compared to, for example, the Kunming Intellectual Property Court that had heard over 800 cases in the year of 2012. see 胡璐曼 (Hu Luman) 2013; 庄庆鸿 (Zhuang Qinghong) 2013, p.3; 昆明中院 (Kunming Intermediate Court), 环境司法保护绿皮书 (Report on Judicial Protection of the Environment) (October 2013).

References

  • Abbot C (2009) Enforcing pollution control regulation—strengthening sanctions and improving deterrence. Hart Publishing, Oxford

    Google Scholar 

  • Alford W, Shen Y (1997) Limits of law in addressing china’s environmental dilemma. Stanf Environ Law J 16:125–148

    Google Scholar 

  • Becker G (1968) Crime and punishment: an economic approach. J Polit Econ 76:169–217

    Article  Google Scholar 

  • Carnwath R (1992) Environmental enforcement: the need for a specialist court. J Plan Environ Law 799–808

  • 茶莹 (Cha Ying), 环保审判不仅仅为净水 (Environmental Trials Not Just for Clean Water), 人民法院报 (People’s Court Daily), 28 August 2009

  • 储皖中 (Chu Wanzhong), 玉溪首创环保联动执法机制 将首审阳宗海“砷污染”事件 (Collaborative Environmental Enforcement in Yuxi to Handle YangZongHai Case), 法制日报 (Legal Daily) 9 December 2008

  • E’Xiang W (2010) Establishing an environmental public interest litigation system and promoting the building of an ecological civilization. Chin Law Gov 43:30–40

    Article  Google Scholar 

  • 洪尚群 (Hong Shangqun), 阳宗海解除三禁规定 (Bans Lifted at YangZongHai), 中国环境报 (China Environment News) 29 June 2011

  • 胡璐曼 (Hu Luman), “问症”环保法庭 (“Diagnozing” Environmental Courts), 民主与法制时报 (Democracy and Law Times), 28 October 2013

  • 昆明中院 (Kunming Intermediate Court), 环境司法保护绿皮书 (Report on Judicial Protection of the Environment) (October 2013)

  • 林秀红 (Lin Xiuhong), 我国环境执法难的原因与对策 (Causes and Solutions of Environmental Enforcement Difficulties), 海峡科学 (Hai Xia Ke Xue) at 5–8 (2012, no. 6)

  • 龙玉琴和王殿学 (Long Yuqin and Wang Dianxue), 环保警察能否根治环保执法软骨症 (Will Environmental Police Tackle the Problem of Weak Enforcement), 南方都市报 (Southern Metropolitan Daily), 24 June 2013

  • Ma X, Ortolano L (2000) Environmental regulation in China—institutions, enforcement, and compliance. Rowman and Littlefield, Lanham, Maryland and Oxford

    Google Scholar 

  • Macrory R (2013) the long and winding road—towards an environmental court in England and Wales. J Environ Law 25:371–381

    Article  Google Scholar 

  • McElwee C (2011) Environmental law in China—mitigating risk and ensuring compliance. Oxford University Press, New York

    Google Scholar 

  • Stern R (2013) Environmental litigation in China: a study in political ambivalence. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • 孙佑海 (Sun Youhai), 中国环境法治“十一五”回顾、评价与“十二五”展望 (Review of Chinese Environmental Law in the 11th Five-Year Plan and Prospects for the 12th FYP), 中国环境法治 (China’s Environmental Law) (2012 A), at 11–23

  • van Rooij B (2006) Implementation of Chinese environmental law: regular enforcement and political campaigns. Dev Chang 37:57–74

    Article  Google Scholar 

  • 汪劲 (Wang Jin) 2011 环保法治三十年:我们成功了吗 (Thirty Years of Environmental Law in China—Have We Succeeded). 北京:北京大学出版社 (Peking University Press, Beijing)

  • 邢捷 (Xing Jie), 论我国环境警察制度的构建 (On the Establishment of Environmental Police in China), 中国人民公安大学学报(社会科学版) (Journal Of Chinese People’s Public Security University (Social Science Edition)), 34–40 (2012, no. 2)

  • 杨朝飞 (Yang Zhaofei) 我国环境法律制度和环境保护若干问题 (Environmental Protection Law and Problems), seminar delivered to the 11th National People’s Congress Standing Committee members, 23 November 2012, available at the official website of the National People’s Congress: http://www.npc.gov.cn/npc/xinwen/2012-11/23/content_1743819.htm. Accessed on 4 June 2014

  • 袁学红 (Yuan Xuehong), 能动司法与联动执法 – 昆明环境司法的创新与实践 (Judicial Activism and Enforcement Collaboration—Innovation and Practice at Kunming Environmental Court), 中国环境法治 (China Environmental Law) (2012 A), at 173–176

  • 张雯雯 (Zhang Wenwen), 陈景院士:阳宗海砷污染治理要走很长的路 (Chen Jing: Cleanup of Arsenic Contamination at YangZhongHai Still a Long Way to Go), 中国科学报 (China Science News) 20 November 2012

  • 周雁凌 等 (Zhou Yanling, et al), 东明环保人员遭遇暴力抗法 (Dongming Environmental Officers Suffered from Violent Obstruction of Environmental Law Enforcement), 中国环境报 (China Environment News), at p. 1 (14 May 2013)

  • 周雁凌和王学鹏 (Zhou Yanling and Wang Xuepeng), 公安环保牵手 联勤联动执法 (PSB and EPB Joint Actions to Enforce Law), 中国环境报 (China Environment News), at p. 3 (10 May 2013)

  • 周雁凌和季英德 (Zhou Yanling and Ji Yingde), 双拳伏恶虎 合力缚苍龙:淄博行政执法和刑事司法无缝对接 (Double Punches to Defeat Evil Tiger, Joint Power to Control Black Dragon—Seamless Cooperation between EPB and PSB in Zibo), 中国环境报 (China Environment News), at p. 3 (19 June 2012)

  • 庄庆鸿 (Zhuang Qinghong), 环保法庭的公益诉讼困境 (Environmental Courts in Public Interest Litigation Dilemma), 中国青年报 (China Youth News), p. 3, 9 November 2013

  • 资敏 (Zi Min), 弥补行政执法不足 环保警察强势介入解决环境难题 (Fill the Gap of Administrative Enforcement—Environmental Police Intervene to Resolve Difficult Problems), 中国环境报 (China Environment News) 20 July 2009

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    Yuhong Zhao

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Zhao, Y. Innovative measures to improve environmental law enforcement in China. China-EU Law J 4, 155–172 (2015). https://doi.org/10.1007/s12689-014-0045-9

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