By Michael Lelyveld
As China implements its first reform of environmental law in 25 years, the government faces questions about how far the enforcement will go.
On Jan. 1, tougher pollution rules and stiffer penalties came into force under revisions to China’s Environmental Protection Law enacted last April in the first overhaul of the statute since 1989.
“The new amendments to China’s bedrock environmental law put powerful new tools into the hands of environmental officials and the public,” said Barbara Finamore, Asia director at the U.S.-based National Resources Defense Council, in a blog posting when the measure was enacted last year.
The law’s passage by the National People’s Congress (NPC) fulfilled part of Premier Li Keqiang’s promise in March to launch a “war against pollution” after months of smothering smog in China’s cities raised an outcry against environmental neglect.
Among the extensive provisions, the new law lifts a previous cap on environmental fines by imposing daily penalties for continued non-compliance.
Violators can face detention for up to 15 days, and officials can be fired for cover-ups and falsified reports.
Polluting equipment can be confiscated, and in severe cases, enterprises can be suspended from operating.
Environmental impact assessments for new construction projects must be made public for scrutiny and comment.
The law also requires operators of “key pollutant- discharging units” to disclose their emissions by type, concentration and volume, potentially forcing thousands of factories to clean up their acts.
NGOs empowered
And in a breakthrough for the public interest, qualified nongovernmental organizations (NGOs) have been empowered to file suits for environmental damage, as long as they do not seek compensation for themselves.
The amendments were designed to deliver “a blow … to our country’s harsh environmental realities,” said Xin Chunying, deputy director of the Legislative Affairs Commission of the NPC’s Standing Committee, as quoted by Reuters last April.
The changes have raised hopes among activists, in part because three earlier draft revisions failed to win passage, reportedly because they were “too vague” and not tough enough.
In comments to The South China Morning Post, advocates voiced a mix of optimism and pressure to do more.
“Investors do not care about pollution problems unless the prospects of returns are threatened. The new penalty mechanism is a starting point for change,” said Ma Jun, director of the Institute of Public and Environmental Affairs, a Beijing-based NGO.
But Song Guojun, a Renmin University professor of environmental economics, said the law should go further by confiscating the “illegal gains” of companies made from their polluting operations.
The demand raises the question of how far China will go, and how quickly it can afford to go, in punishing pollution that has been tolerated for decades.
Record fine
In an early sign that the government means business, a court in eastern Jiangsu province upheld a lower court ruling against six companies for dumping chemicals into two rivers, imposing a record fine of 160 million-yuan (U.S. $26 million), state media reported on Dec. 30.
The case against the companies in Taizhou City was brought by a recently formed NGO with 60 local members, according to The New York Times, although the finding predates the effective date of the new law by two days. Qualified NGOs are also required under the law to have been active for five years.
Under the 1989 law, one-time fines were generally capped at 1 million yuan (U.S. $161,000), giving polluters little incentive to comply.
But the consequences of the tougher new fines and penalties could be staggering if they are imposed across the board.
On Dec. 23, the Ministry of Environmental Protection (MEP) said it had issued the lesser penalties under the old law to some 190,000 enterprises for violations over the past two years, the official Xinhua news agency reported.
The potential impact of revisiting such an enormous volume of cases under the new law makes it unclear whether the war against pollution will be pursued with the same intensity as the ongoing anti-corruption campaign.
‘Name and shame’
So far, the revised law is seen as giving citizens and NGOs more leverage and government support to “name and shame”
polluters, said Daniel Gardner, a China scholar and history professor at Smith College in Northampton, Massachusetts, who writes frequently on environmental affairs.
“At the moment, the Environmental Protection Law is a very promising document,” Gardner said. “When you take all of these incremental steps and put them together, you conclude that they are really quite serious about enforcing the new pollution law.”
But if the Jiangsu penalties turn out to be the opening salvo in a campaign as broad as the government’s crackdown on corruption, the social, economic and political impacts could be unsettling.
“We don’t know how this is all going to play out,” said Gardner. “How many campaigns can China withstand?”
Communist Party members are already reeling from President Xi Jinping’s anti-corruption campaign, which handed out punishments to 71,748 officials last year, according to the party’s Central Commission for Discipline Inspections (CCDI) at a Beijing press conference earlier this month.
Last week, Xi told a CCDI plenary session that the war on corruption was “far from over,” calling it “a matter of life- or-death for the Party and the nation,” according to Xinhua.
“We will also continue to hold the sharp sword of counter- corruption high,” said Xi.
Uncertainties
Although few doubt the need for anti-graft measures, many officials have either fled China or hedged their bets by investing in overseas property, driven by uncertainties about possible political motivations and how far enforcement will go, Gardner said.
Questions about the extent of liabilities and environmental enforcement under the new law will only add to officials’ anxieties.
Gardner argues that the pollution and corruption crackdowns are already linked.
“There’s a real tie between the anti-corruption campaign and the anti-pollution campaign. I don’t think they should be disentangled entirely,” he said.
“After all, who is responsible for pollution? There are polluting companies, but then there are officials who turn a blind eye to pollution because they want the income and the taxes from those companies,” Gardner said.
Official figures released last year give a hint of the massive scope of pollution problems.
A report by the Ministry of Land and Resources (MLR) in April said that 59.6 percent of underground water resources in China’s cities tested as “very poor” or “relatively poor” in 2013.
The 15.7 percent rated as “very poor” cannot be used for drinking, even after treatment, under government standards, official media said.
Another report in April by the MEP and the MLR found that 16.1 percent of China’s land and 19.4 of its farmland is polluted, based on surveys conducted from 2005 through 2013.
Other reports have sparked fears that contamination could be far worse.
‘State secret’
Despite public pressure in 2013, the MEP repeatedly refused to release results of a soil study from 2006 to 2010 on the grounds that the findings were a “state secret.”
The new amendments require “environmental protection administrations of the people’s governments at various levels … (to) disclose environmental information pursuant to the law.”
But it is too soon to say whether the government will pursue the war against pollution on its own or as an extension of the anti-corruption campaign.
One major obstacle to stricter enforcement is extreme understaffing of the MEP, Gardner said.
According to a joint study by the World Bank and the Development Research Center of the State Council, or cabinet, the MEP has some 400 personnel in Beijing, another 2,000 in “affiliated institutions,” and 500 in five regional offices.
That compares with over 17,000 staffers at the U.S. Environmental Protection Agency, the study said.
MEP inspectors at lower levels are subject to pressures from local officials and governments that frequently frustrate disclosure and enforcement, said Gardner.
The new amendments that allow NGOs to take polluters to court may bolster the MEP and make it harder to avoid fines.
On Jan. 6, China’s Supreme Judicial Court issued an interpretation of the new law that may further strengthen NGOs by cutting court costs for environmental suits and making defendants pay the charges if the plaintiffs prevail, state media said.
Harsher penalties?
But numerous reports in recent weeks suggest that polluters have not been deterred by environmental laws, and that the press and public will demand harsher penalties.
On Dec. 25, 14 people from six mining companies were put on trial in central Hubei province for discharging arsenic that poisoned 49 villagers over a five-year period, Xinhua reported.
Five environmental protection officials were among seven people sentenced to jail terms, the news agency said.
Another 12 people were arrested in eastern Zhejiang province for dumping heavy metals into the Oujiang River from a recycling company in Wenzhou City, Xinhua said on Dec. 18.
On the same day, the environmental group Greenpeace reported that Shanghai’s largest coal-fired power plant has been routinely exceeding emissions standards for nitrogen oxides (NOx), a key smog component, since new limits came into force last July.
And in another case that inflamed public anger on Jan. 4, state media published photos of an outfall pipe in southwestern Chongqing Municipality as it dumped raw sewage into the Yangtze River near a pumping station for the city’s drinking water supply.
“Why does such a practice still exist despite the threat of punishments?” Xinhua asked in a report.
The coming months may answer questions of how aggressively the government will wage its war against pollution and how much effect the new law will have.
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