Abstract
China’s economic miracle has been achieved at high environmental costs, including substantial air and water pollution, which are detrimental to the health of China’s citizens. A lack of strong environmental governance is part of the explanation for this state of affairs. Courts and regulatory agencies have not adequately performed their duties. Although China’s administrative system, which historically tended to prefer economic growth over environmental quality and citizens’ rights, is at the root of its environmental problems, the Chinese government has begun to show more enthusiasm for environmental and health protection. In this article, a series of principles and practices for good environmental governance are discussed. Because these principles and practices contribute to establishing rational and effective environmental policies and governance, the Chinese government should consider them in rethinking its current system. The models and practices discussed in this article work best if they form a part of an integrated system. For environmental governance to be able to realize its full potential, however, China should also adopt political reforms and shift power from the various levels of government to ordinary citizens. Chinese society knows a number of strategies to collect and include people’s opinions into administrative decision making, these mechanisms could be strengthened.
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Notes
World Bank Report 2013, p. 217.
Economy 2007, pp. 38–59, at 59.
Gilley 2012, p. 225.
Zhang and Crooks 2012.
Garnaut et al. 2013.
He et al. 2012, pp. 25–38.
Huang et al. 2010, pp. 220–246.
Johnson 2008, pp. 93–102.
Xu 2015.
Xu 2015.
World Bank Group 2010.
Cf. European Commission 2002a, pp. 3, 4 and 11.
For a more sophisticated classification, see Craig 2012, pp. 149–153.
European Commission 2001, p. 23.
Craig 2012, pp. 144.
Tiebout 1956, pp. 416–424.
Sunstein has aptly observed that pollution prevention is inadequate as a global approach, would impose extremely high costs - sometimes including environmental costs - in some cases, and, if taken literally, would be a social disaster. Sunstein 1997, pp. 376, 377.
Huber has noted, however, that uneven environmental regulation “has already moved electric power plants from New York to Quebec and from California to Utah, with high-voltage transmission lines slashing across the country to ship power back to the communities too green to generate their own. This has not done the environment any good at all. Relocating steel factories to China and petro-chemicals to Dubai will - quite obviously - harm the environment, not help it”. Huber 1999, p. 127.
Revesz 1992, pp. 1210–1254.
The prisoner’s dilemma is the best known game of strategy in social science. Two crime suspects, A and B, have been arrested and are to be interrogated by the police in separate rooms. If neither confesses, each will be sentenced to 2 years of prison. If both confess, they will each be sentenced to a three year term. If one of them confesses, but the other one does not, the one that confesses gets only one year and the other one eight years. Thus, confession is the dominant strategy for each of them. Assuming the defendants act rationally, they would each confess, although they would be better off if neither were to confess. See Nalebuff 1998, pp. 89–95.
Stewart 1977, pp. 1196–1272.
This argument assumes a certain degree of mobility of industry. It assumes also that the higher burdens imposed on industry through regulation are not offset by lower burdens in other areas such as taxation.
As Revesz has suggested, the strength of this argument may depend on the particular regulatory activity involved (scientific studies of adverse effects of pollution, the setting of ambient-based standards, the setting of emissions standards, and the enforcement of emission standards). Revesz 1997, p. 178.
Mill identified the tension between centralization, risk of abuse of power, and economies of scale and proposed the following strategy: “the greatest dissemination of power consistent with efficiency; but the greatest possible centralization of information and diffusion of it from the centre”. Mill 1974, p. 185.
This reason is reflected in Article 5 (ex 3b) of the Maastricht Treaty, which promulgates the “subsidiarity principle”.
Stewart proffers a fifth argument, that environmental groups may have a greater impact on policy decisions at the central level. Stewart 1977, pp. 1196–1272. Quite apart from the fact that it is difficult to see how this could be an argument supporting centralization from a public interest perspective, it is also rather speculative.
“All that can be done is to try to maximize the opportunities available to all from the outset, for which diversification, not centralization, of power is the key”. Epstein 1995, p. 321.
Yang and Hu 2008, p. 119.
Policy making in the area of clean energy, for instance, requires for each individual project the involvement of multiple national (e.g. National Development and Reform Commission, National Energy Administration, and Ministry of Environmental Protection) and local agencies.
Case 9/56 Meroni & Co. [1958] ECR 133. TFEU, Art 290.
European Risk Forum 2012.
European Commission, Transparency Portal, at http://ec.europa.eu/transparency/index_en.htm.
Prechal and de Leeuw 2008, pp. 201–242.
Yang and Hu 2008 p. 122.
The ‘YourVoice’ website can be found at http://ec.europa.eu/yourvoice/consultations/index_en.htm (last accessed on 26 November 2013).
European Commission 2002b.
OMB, Final Information Quality Bulletin for Peer Review, Washington DC, 2004 (issued under the Information Quality Act, this bulletin establishes government-wide guidance aimed at enhancing the practice of peer review of government science documents). Treasury and General Government Appropriations Act for Fiscal Year 2001, Pub. L. No. 106–554, 114 Stat. 2763 (2000), §515 (“Information Quality Act”); OMB, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 FR 8452, 22 February 2002; Office of Management and Budget (“OMB”), Administrator, Office of Information and Regulatory Affairs (“OIRA”), Memorandum, Information Quality Guidelines—Principles and Model Language, 5 September 2002; Office of Management and Budget (“OMB”), Final Information Quality Bulletin for Peer Review, 16 December 2004.
ACUS Recommendation 2013-3.
ACUS Recommendation 2013-3, pp. 4–7.
Consistent with the President’s Memorandum for the Heads of Executive Departments and Agencies, “Scientific Integrity” (March 9, 2009), and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency’s regulatory actions”. Executive Order 13563 on Improving regulation and regulatory review, of 18 January 2011. See also White House, President’s Memorandum for the Heads of Executive Departments and Agencies, “Scientific Integrity” (March 9, 2009); Director of the Office of Science Technology and Policy, Memorandum for the Heads of Executive Departments and Agencies, “Scientific Integrity” (Dec. 17, 2010) (providing guidance on how to implement Administration scientific integrity policies).
European Commission 2002c. See also Rules of Procedure of the Scientific Committees on Consumer Safety (SCCS), Health and Environmental Risks (SCHER), Emerging and Newly Identified Health Risks (SCENIHR), Brussels, April 2013.
Executive Order 12866, “Regulatory Planning and Review”, 58 FR 51735, 4 October 1993; Circular No. A-4, “Regulatory Analysis”, Office of Management and Budget, 17 September 2003, (providing “guidance to Federal agencies on the development of regulatory analysis as required under Section 6(a)(3)(c) of Executive Order 12866 “Regulatory Planning and Review”, and also providing “guidance to agencies on the regulatory accounting statements that are required under the Regulatory Right-to-Know Act”.); Executive Order 13563, “Improving Regulation and Regulatory Review”, 76 FR 3821, 21 January 2011; Executive Order 13497, “Revocation of Certain Executive Orders Concerning Regulatory Planning and Review”, 74 FR 6113, 4 February 2009; White House, “Regulatory Impact Analysis: A Primer” (“providing a primer to assist agencies in developing regulatory impact analyses (RIAs), as required for economically significant rules by Executive Order 13563, Executive Order 12866, and OMB Circular A-4”.). Cf. Löfstedt and Vogel (2001), pp. 399–405 (presenting the ‘flip-flop’ theory).
US EPA, Risk Assessment, available at http://epa.gov/riskassessment/basicinformation.htm#arisk.
Anderson et al. (2000), 89 et sqq, at pp. 90, 91 (discussing how “[r]egulatory agencies use a variety of analytic tools, including comparative risk assessment, cost-benefit analysis, and cost-effectiveness analysis, to inform their decisions and provide a degree of credibility to the decisions that are made”). “Despite differences in terminology, it is well accepted that tools such as risk assessment and cost-benefit analysis offer insight and intellectual discipline to the decision-making process. They can help to identify and evaluate decision options, and achieve more benefits at less cost than otherwise would occur. However, it is also well recognized that use of these tools is not a substitute for human judgment in decision-making. Human judgment comes into play because the structure or findings of an analysis may not be adequate to inform a decision” . Ibid., at p. 93.
See, for instance, Bergkamp 2013.
See, for instance, EPA, Guidance on Cumulative Risk Assessment (July 1997).
DG SANCO, Risk assessment and dialogue at EU level, at http://ec.europa.eu/health/dialogue_collaboration/system/index_en.htm.
White House (2011).
European Commission 2009 (impact assessment guidelines).
European Commission 2009.
Consequently, performing one joint ex-ante assessment on a comparable initiative to be used by both US regulators and the Commission would be “an immensely challenging task”. O’Connor and Mancini (2007).
European Commission, Impact Assessment, Library of Best Practice, available at http://ec.europa.eu/smart-regulation/impact/best_practices_examples/index_en.htm.
Executive Order 13563 on Improving regulation and regulatory review, of 18 January 2011.
European Commission, Smart Regulation, Evaluation, available at http://ec.europa.eu/smart-regulation/evaluation/index_en.htm.
ACUS Recommendation 2013-4.
The EU has adopted a document access regulation, but it excepts “[a]ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution (…) if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L L 145/43 (31.5.2001).
Recommendation of the European parliament and of the council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States (2001/331/EC), OJ L 118/41 (27.04.2001).
This network has a website at http://impel.eu/about/.
Article 17(1), Treaty on European Union.
Principle 3, Rio Declaration on Environmental Development, Environmental Policy and Law 22/4 (1992), pp. 268, 269.
Stanners and Bourdeau 1995.
Pursuant to Article 191 (ex 174) TFEU, European environmental policy shall be based on the principle that “preventive action should be taken”. For a discussion of this principle under international law, see Sands 1995, pp. 194–197.
Smith and Kromarek 1989, p. 13.
Krämer 2007, p. 25.
Principle 15 of the Rio Declaration reads as follows: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
However, in the Rio Declaration, this principle is subject to several qualifications. “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment”. Principle 16, Rio Declaration on Environmental Development (1992).
Article 191 (174s), TFEU.
Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56.
European Commission 1993.
Bergkamp 2002, p. 34.
European Commission 1994.
Krämer has correctly observed that a radical interpretation of the polluter pays principle would require that the cost of pollution may never be borne by the tax payers, but should always be imposed on the polluter. Subsidies for remediation would be impermissible. Due to the difficulties in identifying the actual polluters, Krämer argues, public authorities are in practice “the only ones to ensure a clean-up or to take other remedial or preventive measures to stop continued contamination”. Krämer 2007, p. 28.
Cf. the German “Kreislaufwirtschafts- und Abfallgesetz”. Gesetz vom 27. September 1994 zur Förderung der Kreislaufwirtschaft under Sicherung der umweltverträglichen Beseitigung von Abfällen, BGBl. III 2129-27-1.
OECD 2008.
See, for instance, Article 8.11, Section 3, of the Dutch Environmental Management Act (Wet milieubeheer), which imposes the ALARA-principle on the permitting authorities.
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control. OJ L 257/26 (10 Oct. 1996).
Hunter 1997.
Bansal and Gangopadhyay 2005, pp. 345–367.
Under a marginal cost/benefit test, one would spend money on environmental protection measures, if doing so is cost-efficient (i.e. the environmental benefits exceed the cost), and would continue to invest up to the point where doing so is no longer cost-efficient. In other words, one would continue to invest until an additional investment of one EURO generates exactly one EURO in additional environmental benefits. Beyond this point, i.e. where the costs of further environmental protection exceed the benefits, no further investments would be made.
Gunningham et al. 1998.
Gunningham et al. 1998, final chapter.
European Commission 2006.
These legal actions, based on article 258 FTEU, are referred to as EU Infringement procedures. For further information, please consult: http://ec.europa.eu/eu_law/infringements/infringements_en.htm (last visited on 7 January 2014).
Ibid.
Andrea Francovich and Others v. Italian Republic, Joined Cases C-6/90 and C-9/90 and C-9/90, [1991] ECR I-5357. For general remarks on “Frankovich” liability, please consult: http://ec.europa.eu/eu_law/infringements/infringements_dommages_en.htm (last visited on 7 January 2014).
http://ec.europa.eu/environment/legal/law/inspections.htm (last visited on 7 January 2014).
http://europa.eu/legislation_summaries/environment/general_provisions/l28140_en.htm (last visited on 7 January 2014).
Article 5(3), Treaty on European Union.
Article 5(4), Treaty on European Union.
http://ec.europa.eu/environment/ecolabel/about_ecolabel/pdf/work_plan.pdf (last accessed on 27 January 2014).
European Environment Agency 2012.
European Commission (2012).
Ibid.
Hart 2005, p. 11.
http://www2.epa.gov/toxics-release-inventory-tri-program/learn-about-toxics-release-inventory (last visited on 7 January 2014).
Ibid.
http://www2.epa.gov/toxics-release-inventory-tri-program/tri-around-world (last visited on 7 January 2014).
5 USC § 553(c) (Rule making); 5 USC § 556 and 5 USC § 557 (when rules are required by statute to be made on the record after opportunity for an agency hearing).
Bergkamp and Kogan 2013, pp. 493–507.
United Nations Environment Programme 2008, p. 48.
International Joint Commission 1997.
The World Bank, 1993–2002 (2005).
Ibid, p. 1,9.
Ibid, p.2.
Dutta et al. 2006, pp. 143–150.
Ibid, p. 146.
Ibid.
http://moef.nic.in/downloads/about-the-ministry/introduction-nep2006e.pdf (last accessed on 27 January 2014).
http://pmindia.nic.in/Pg01-52.pdf (last accessed on 27 January 2014).
Kurukulasuriya et al. 2013, p. 16.
Cho 2012 http://blogs.ei.columbia.edu/2012/02/14/data%E2%80%99s-power-to-spur-environmental-progress/ (last visited on 7 January 2014).
Ibid.
Kurukulasuriya et al. 2013, p. 10.
Barros-Platiau 2010, p. 74.
Cavalcanti 2008, p. 55.
Kurukulasuriya et al. 2013, p. 27.
Cavalcanti 2008, p. 60.
Ibid p. 69.
O’Connor (2010) http://www.washingtonpost.com/wp-dyn/content/article/2010/03/31/AR2010033103614.html (last visited on 7 January 2014).
West et al. 2004, p. 3474.
Ibid, p. 3475.
OECD 2013, p. 46.
http://www.sciencedaily.com/releases/2010/04/100428153256.htm (last visited on 7 January 2014).
Kurukulasuriya et al. 2013, p. 27.
Ibid.
Woo et al. 1997, p. 368.
Merrill Lynch 1993.
Ibid.
Woo et al. 1997, p. 368.
Woo et al. 1997.
Ibid.
Ibid.
Ibid, p. 100.
OECD 2000, p. 14.
Ibid.
OECD 1997, p. 24.
Pisupati 2008, p. 37.
Newig and Fritsch 2009, pp. 19, 197–214.
Flynn 2000, pp. 10, 75–84.
World Bank Report 2013, p. 246.
Lubman 2000, pp. 383–423.
Beyer 2006, pp. 185–211.
Qiu and Li 2009, pp. 10,152–10,163.
For further discussion, see Xu and Faure 2016 (Explaining China’s Environmental Disaster).
Stern 2011, pp. 294–312. Yu 2013. “zhongguo huanjing fating mianlin de tiaozhan jiqi yingdui” (The Challenges Faced by China’s Environmental Courts and Their Countermeasures), EU-China Environmental Governance Program Research Reports, China Volume, No. 7, Available at: http://www.ecegp.com/chinese/DataBase/UploadFile/20150605145006759.pdf (accessed 30 July, 2015).
Stern 2014, pp. 53–74.
See “Major Responsibilities of the Bureau of Environmental Supervision”, available at: http://english.mep.gov.cn/About_SEPA/Internal_Departments/200910/t20091015_162416.htm (accessed 2 August, 2015).
See the Annual Reports of Environmental Statistics (2010, 2011, 2012, and 2013) issued by the MEP, available at: http://www.mep.gov.cn/zwgk/hjtj/ (accessed 3 August 2015).
Qiu and Li 2009, pp. 10,152–10,163. World Bank 2009. Available at: https://openknowledge.worldbank.org/bitstream/handle/10986/12323/NonAsciiFileName0.pdf?sequence=1 (accessed 5 August, 2015). Zhang and Cao 2015, pp. 433, 434.
Lo et al. 2012, p. 228.
World Bank 2009. Available at: https://openknowledge.worldbank.org/bitstream/handle/10986/12323/NonAsciiFileName0.pdf?sequence=1 (accessed 5 August 2015).
Wang and Wheeler 2005, pp. 174–196.
Xu and Faure 2016 (Explaining China’s Environmental Disaster).
van Rooij et al. 2014 available at: http://onlinelibrary.wiley.com/doi/10.1111/rego.12074/abstract (accessed 10 August 2015).
Xu and Faure 2016 (Explaining China’s Environmental Disaster).
Xu 2015 (Institutional Foundations).
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Bergkamp, L., Xu, G. Design and implementation of a governance system for the protection of the environment and public health in China: international models, best practices, and implications for contemporary China. China-EU Law J 5, 135–174 (2017). https://doi.org/10.1007/s12689-016-0061-z
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DOI: https://doi.org/10.1007/s12689-016-0061-z