On Sunday night March 23 I returned from China where I had been leading an 11-day environmental law field trip of Maryland law students and alums during our spring break. After spending the first four days in Beijing (as discussed in last week’s blog post), the group left for Qingdao on Tuesday March 18. I stayed behind in Beijing to testify on as one of three invited foreign experts before representatives of China’s National People’s Congress (NPC) and Ministry of Environmental Protection (MEP) on March 19. The other foreign experts joining me in the consultation were David Pettit, a senior attorney with the Los Angeles office of the Natural Resources Defense Council (NRDC), and James A. Holtkamp, a senior lawyer at Holland & Hart in Salt Lake City who represents many clients in the mining industry.
Called the “Green Dialogue,” the event was an extraordinary effort to obtain expert input on proposed amendments to China’s basic Environmental Protection Law to improve its enforcement. The amendments have been under development for two years and are about to undergo their fourth reading by the Standing Committee of the NPC
Presiding over the proceedings were Yuan Jie, Director of the Administrative Law Department of the Legislative Affairs Commission of the Standing Committee of China’s National People Congress (left), and Bie Tao (center), Deputy Director General of Policies and Regulations of China’s Ministry of Environmental Protection. Ten other representatives of the Standing Committee attended the meeting along with two other representatives of MEP. Representatives of the Beijing office of the Natural Resources Defense Council (NRDC) and the Environmental Defense Fund (EDF) also observed the proceedings.
Bie Tao cited estimates that half of all regulated facilities in China violate the law and that pollution in China would be 70% less than it currently is if polluters there was full compliance. Much of the focus of the discussions was on a proposal to provide that maximum fines for environmental violations in China be calculated based on the number of days the violation has occurred. I argued that this has become a fundamental principle of U.S. pollution control law and that it provides a powerful incentive for violators promptly to stop and correct violations. I noted that it is written into the enforcement provisions of the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, the Oil Pollution Act and the Comprehensive Environmental Response, Compensation and Liability Act. I also made a pitch for China to adopt EPA’s policy that environmental settlements always should recoup at least the economic benefit of the violation to ensure that companies do not profit from their violations. This is not something that is currently in the draft amendments, but there seemed to be considerable interest in moving in this direction in the future.
At the end of the day, Ms. Yuan characterized our discussions as “very productive,” noting that China is now at a “critical moment” in the development of its environmental laws. She joked that Bie Tao had tortured her by keeping her up night and day with his advocacy in support of the amendments. We were told that the amendments were likely to be adopted by the NPC Standing Committees in April.
On the afternoon of March 18 I visited the first Tesla showroom on the Chinese mainland in the new Parkview Green mall near Ritan Park. The showroom, which opened in November, was packed with Chinese curious about electric cars. Sales of Chinese electric cars have been disappointing in part because of the paucity of EV chargers. While the Chinese government provides a generous subsidy for purchases of electric vehicles, the subsidy apparently is not available for Tesla purchasers. Tesla nevertheless should be able to sell lots of its vehicles in China because it is charging the same list price (adjusted for tariffs and the higher cost of transporting the vehicles from Tesla’s California factory) as in the U.S., unlike most other luxury car brands that double the list prices in China.
On Thursday morning March 20 David Pettit, Jim Holtkamp and I met with Yu Xiaohan, a judge on China’s Supreme People’s Court, at NRDC’s Beijing offices. Judge Yu is responsible for drafting the Supreme Court’s interpretation of the new public interest litigation provisions of China’s Code of Civil Procedure. Judge Yu indicated that China’s national environmental legislation is largely “sound and completed,” but that its enforceability is the core issue. We had a wide-ranging discussion of enforcement mechanisms used in the U.S. and in particular the recovery of natural resource damages against polluters.
I flew to Shanghai from Beijing on the afternoon of March 20 while the Maryland student group flew from Qingdao to Shanghai. While the group was sightseeing on Friday March 21, I visited the DeTao Academy on the outskirts of Shanghai. DeTao has appointed me to be one of their “Masters,” the first in the field of law. I toured their facilities and met Israeli eco-architect Haim Dotan, another DeTao Master who is designing green buildings and other structures for Chinese cities. In the afternoon of March 21 I gave a lecture to an international environmental law class at Shanghai Jiaotong University. I then rejoined our Maryland student group for a reception at the Maryland China Center in the Marriott Tomorrow Square complex in downtown Shanghai. Zhenxi Zhong (“ZZ”) from Roots and Shoots spoke to the group at the reception, which also featured members of the Shanghai bar.
On Saturday March 22 the students and I participated in the 19th Doctoral Student Forum at Shanghai Jiaotong University. The theme of the conference was “Deepending Reformation of the Rule of Law and Social Governance.” The dean of Shanghai Jiaotong Law School opened the conference with a terrific presentation about the difficulty of developing an independent judiciary and respect for the rule of law in China. I then spoke about the importance of the U.S. and China forming a bilateral partnership to respond to climate change. In the afternoon Maryland Clinic Fellow Andrew Keir spoke about the role of environmental law clinics in legal education. Maryland 3L Ilana Kerner made a presentation on provisions for environmental rights in various national constitutions. Maryland 1L Haley Peterson discussed how various countries regulate drilling in and near protected areas. Maryland 2L Renee Connor presented on approaches to regulating nuclear power in various countries and Maryland 3L Allie Santacreu discussed efforts to use planning law to adapt to climate change. Students from Shanghai Jiaotong made several interesting presentations, including one advocating that certain overextended Chinese municipalities be allowed to declare bankruptcy based on Detroit’s experience. We all flew back to the U.S. on Sunday March 23.