The Statutory Deficiencies

The language used in environmental legislation in China is often criticised as too vague and broad. Beyer argues there are too many encouraging words, like ‘should’, rather than required actions, like the stronger term ‘shall’ or ‘must’ used in the environmental statutory

provisions. Sufficient guidance is also absent on the procedures in practice.69 _{For example,}

the Law on Prevention and Control of Atmospheric Pollution 2000 Article 10 states that ‘the local governments should redouble their efforts in afforestation, grass-planting, urban and rural greening and take effective measures to do well the work pollution and sand control.’70 _{The Law on Prevention and Control of Desertification 2002 Article 20 lays}

down that ‘farmers and herders located in protected desertified areas should be resettled’71_;

and Article 22 adds that ‘new cultivations on desert margins should not be permitted.’72

Even in the 2014 new Environmental Protection Law, some articles are still vague and too broad, which might cause potential overlap and uncertainty in the enforcement. For example, 2014 Environmental Protection Law Article 6 requires that all local people’s governments at various levels, enterprises, public institutions, any other producers/business operators as well as individuals have the obligations to protect the environment. The vagueness in the statutory provisions lead to lax enforcement and difficulties over implementation. The environmental laws in China sometimes are short of detailed provisions. They are too general and broad, more like a catchword. The absence of relevant framework legislation leads to the difficulties in implementation and compliance in the practice.73

In addition, the immature design of the environmental legal framework causes the overlap of the provisions in some fields, whereas in some other fields the provisions are absent.

69 _{Beyer, Stefanie. ‘Environmental law and policy in the People's Republic of China.’ Chinese Journal of International} Law 5.1 (2006): 185-211.

70 _{P.R. Law on Prevention and Control of Atmospheric Pollution Article 10} 71 _{P.R. Law on Prevention and Control of Desertification 2002 Article 20} 72 _{Ibid, Article 22}

Before the revision of the 2014 Environmental Protection Law, Mu observes that 31 articles out of the total 47 articles in the old version of the old Environmental Protection Law74 _{were also repeated in other environmental pollution control law. The repetition rate}

was 66 per cent, which showed the overlap of the environmental legal statutory provisions. However, in some other fields, such as soil pollution control, toxic chemical management, nuclear safety, bio-security nature conservation, environmental damage compensation and some environmental technical specification and standards, the relevant provisions are still absent75_.

Furthermore, some provisions are not updated and lack implementing regulations. As Beyer notes, China’s environmental law normally gives little guidance on implementation76_{. The little detailed legislation requires the fulfilment of the relevant}

regulations or rules to guide the different government departments to fulfil their duties in the practice. Wang points out, some environmental statutory provisions still lack the means of implementation, even though they have been approved for many years.77 _{A good}

example is that the Law on Prevention and Control of Environmental Noise Pollution 1996 still has no relevant implementing regulations, which causes lax enforcement. Without the effective implementation, these provisions are more like a catchword.

Overall, as a part of Chinese legal system, the environmental legislation is also suffering

74 _{P.R. Environmental Protection Law 1989}

75 _{Mu, Zhilin;Bu, Shuchun and Xue, Bing, ‘Environmental Legislation in China: Achievements, Challenges and Trends.’} 2014 Sustainability 6, no. 12: 8967-8979

76 _{Beyer, Stefanie. ‘Environmental law and policy in the People's Republic of China.’ Chinese Journal of International} Law 5.1 (2006): 185-211.

77 _{Wang, Canfa, ‘Chinese environmental law enforcement: current deficiencies and suggested reforms.’ Vt. J. Envtl. L. 8} (2006): 159.

from the systemic defects. The incomplete, ambiguous and conflicting legislation leads to the difficulties in implementation. China’s environmental legal framework is still fragmentary and ambiguous. There is a long way to go to reform the Chinese environmental legal system. The revision of the 2014 Environmental Protection Law can be regarded as a positive step towards the reform.

2.2 . Weak Implementation and Poor Compliance

Besides the statutory deficiencies, weak implementation and poor compliance is also a main challenge to the effective environmental legal system in China. Weak implementation and compliance makes China’s legislation look like ‘no big mistakes but also no obvious effects.’78

The success or failure of law depends whether the law could be implemented effectively in the practice. The lax administration and weak compliance should be blamed for the failure to fully implement environmental law in China. However, the weak implementation is contributed by the systemic problems, which is difficult to overcome in a short term.

First of all, local protectionism contributes to the weak implementation. Since national policy needs to be implemented at the local level, the environmental protection agencies also need to co-ordinate with the local governments; the local enforcement becomes the

78 _{Wang, J. ‘ Thirty Years Rule of Environmental Law in China: Retrospect and Reassessment’, J. China Univ. Geo-Sci.} (Soc.SCI.ED.)2009,9,P3-9

key to the effective implementation. However, guided by the principle of economic first, local officials will potentially choose to sacrifice the local environmental protection to achieve the economic development, especially in some industries, which are energy intensive but have high fiscal returns.79 _{Tax revenue and economic development causes}

the local protectionism in the practice. Since in China the government officials are not elected by the votes, each higher level government official appoints the officials at the lower level directly,80 _{which leads to the officials at a lower level being only accountable}

to the officials at higher level, instead of being accountable to the local people. High tax revenue and rapid economic development means the promotion for personal career. ‘Economic interests above all’ and ‘pollution first, treatment later’ are still typical leading ideology for many local officials. The concept of sustainable development has not truly been regarded as an important guiding principle in the practice, especially at the local level. The goal of the central government, environmental protection and sustainable development, is not compatible with the goal of the local government, economic development and high tax revenue. When the two goals conflict, the environment is normally considered to be the cost to be paid for economic development. In China’s traditional officials’ cadre evaluation system, economic, social stability and one child policy have been always at the top of the list. This is why local officials tend to choose economic, rather than environment.

However, the severe environmental pollution has already caused public discontent and unrest, which is considered to be a potential harm to the social stability. Consecutive public protests clearly show the public attitude towards on the environmental pollution

79 _{Xu, Yan, ‘China’s Stir Fry’ of Environmentally Related Taxes and Charges: Too Many Cooks at Work’, Journal of} environmental law 23.2 (2011): 255-283.

issues. The Chinese government has already realised the importance of the environmental protection and has paid unprecedented attention to the environmental issues. Faced with the severe public discontent and the consecutive public protest, the Chinese government responded by adding the environmental protection target to the traditional cadre evaluation system. Local officials at each level are asked to be accountable for binding energy targets in the annual evaluations.81 _{The high-priority, quantitative pollution reduction and energy}

efficiency targets were also introduced in the 11th _{five-year plan.}82 _{It is the first time the}

environmental protection policy was stressed in the national five-year plan, in which only prior policies, such as economic growth, social stability and one-child policy had been mentioned before. Environmental and energy targets are used as a tool to minimising the social unrest and to achieve social harmony.

Since the environmental target was newly introduced to the officials’ cadre evaluation system, compared to the other traditional targets, such as the economic growth, it is still too early to fully estimate the change it brings. In practice, it has not yet completely prevented the local protectionism. However, it, at least, shows great concern from central government and it leads economic development in a right and sustainable direction.