Last week China’s National People’s Congress (NPC) adopted far-reaching amendments to China’s basic Environmental Law. The amendments incorporate many of the recommendations I made when testifying before the Standing Committee of the NPC on March 19 (see March 25, 2014 blog post). A prominent Chinese environmentalists emailed me that “we are all so incredibly excited, over the moon, really” about the new provisions, which are the product of years of advocacy by Chinese environmentalists. Here are some of the specifics of the new amendments, as described by NRDC’s Beijing office:
(1) Daily penalties. The new law has established a "blacklist" system, which records environmental law violation information in a new record system and a list of violators will be released to the public. More importantly, the new law has adopted daily penalties, providing that from the next date when a competent administrative agency ordered a violator to correct its illegal behavior but the violator fails to, the agency may order continuous penalties on a daily basis, according to the original amount of penalty. The new law also provides local governments with more discretion to increase the types of activities may incur daily penalties.
(2) Environmental public interest litigation. The law establishes the environmental public litigation provision and grants the standing of plaintiffs in environmental public interest litigation to social organizations which have registered with the governmental civil affair departments above city level, have specialized in environmental public interest activities for more than 5 years, and do not have any law-breaking record. To tackle difficulties in having cases accepted by courts, the new law also clearly provides that courts must accept cases filed by qualified social organizations in accordance with the law. This breakthrough is a strong supplement to the public interest litigation clause in the Civil Procedure Law.
(3) Basic concept of the Environmental Protection Law. The new EPL elevates the importance of environmental protection; "the work of environmental protection must be coordinated with economic construction and social development" has been changed to "the work of economic and social development must be coordinated with environmental protection."
(4) Environmental information disclosure and public participation. The new EPL dedicates an entire chapter to provisions for environmental information disclosure and public participation. It makes specific provisions for the disclosure of environmental supervision information, monitoring information, corporate environmental information, and also for citizens' access to environmental information and participation and supervision of environmental protection.
(5) Permitting system. The new law establishes the pollutant discharge permit system and clearly stipulates that enterprises, institutions, and other production operators under the pollution discharge permit management system must discharge pollutants within the stated range of emissions on their permits. Without obtaining emission permits, an operator is not allowed to emit any pollutant.
(6) Ecological red lines. The new law provides that the nation sets ecological bottom lines ("red lines" as referred to in the law) and implements strict protection for key ecological function zones and ecologically sensitive or vulnerable zones. Also, according to the law, governments above provincial level are obliged to organize investigation and evaluation of environmental conditions, and to establish early warning mechanisms to detect environmental problems. The new law requires that environmental protection departments must suspend approval of construction projects' EIA documents in areas where pollutants exceed national total emission control targets for major pollutants or in areas that fail to accomplish national environmental quality objectives.
(7) Strengthened enforcement authority. The new EPL clearly strengthens the authority of environmental protection departments to strengthen the deterrent effect of environmental law:
* It clarifies the administrative enforcement measures environmental protection departments can take. For the illegal discharge of pollutants causing or likely to cause severe pollution, environmental protection departments above the county level and other departments responsible for environmental supervision or management can close down or seize facilities and equipment causing the pollution.
* it clarifies the legal status of environmental monitoring institutions entrusted by the competent departments of environmental protection administration, empowering them to make on-site inspections of enterprises and other producers that discharge pollutants.
* it provides for four types of serious cases of environmental violations where responsible persons could face administrative detention, including: if their company didn't undertake an EIA and refused to suspend production after being issued a ban, discharged pollutants without a pollutant discharge permit, falsified monitoring data, or continued to use pesticides banned by the state after being ordered to make corrections.”
On Saturday April 26 I flew from Washington to Dubai to give a lecture on “Environmental Law in an Era of Globalization” at the American University of Sharjah in the United Arab Emirates (UAE). Professors Mohamed Abouleish and Gary Gold, who served as my hosts, are co-teaching what is believed to be the only environmental law course offered in the UAE. As I pointed out in my lecture, which was given on April 28, the UAE has the second highest per capita emissions of greenhouse gases in the world, second only to Qatar. The country uses oil to provide for virtually all of its energy needs and its water is provided by energy-intensive desalination plants. An experiment with solar power apparently was abandoned after it was determined that desert dust storms made it too expensive to clean the panels frequently. Fortunately I was in the UAE for what the locals called a “cool spell.” The temperatures, which can range from 120 to 130 degrees Fahrenheit in summer months, were only approximately 100 degrees. The sheik who rules Sharjah has placed a particular emphasis on education and the American University of Sharjah is one of seven schools located in a beautiful “University City” complex. I arrived back in the U.S. on the morning of April 29. Photos that I took while in the UAE have been posted in the “Photo Albums” portion of my parallel website at: http://www.globalenvironmentallaw.com. This was my first visit to the UAE, the 83rd country I have visited.
On April 29 the U.S. Supreme Court delivered an important victory to the U.S. Environmental Protection Agency by reversing the D.C. Circuit’s decision that had struck down the EPA’s interstate air pollution rule. (See the December 16, 2013 blog post concerning the oral argument before the Supreme Court). The D.C. Circuit’s decision had represented a new height of judicial activism by the D.C. Circuit, which imposed such demanding requirements on EPA that it would have been extremely difficult for the agency to implement the interstate air pollution provisions of the Clean Air Act (CAA). The Supreme Court reversed the D.C. Circuit, reinstating EPA’s rule, in a 6-2 decision with Justice Alito recusing himself. What seems particulary significant is that both Chief Justice Roberts and Justice Kennedy joined Justices Breyer, Sotomayor and Kagan in embracing in full Justice Ginsburg’s majority opinion. Justice Ginsburg has been the Justice who in the past has been the most sympathetic toward environmental concerns. The case turned in large part over whether EPA had violated the CAA by basing states’ obligations to control transboundary pollution on what measures can be undertaken most cost-effectively. EPA’s rule thus avoided penalizing states that already have done the most to control interstate air pollution.
Justice Scalia dissented, in an opinion joined by Justice Thomas. He even read his dissent from the bench to emphasize how strongly he rejected EPA’s arguments. However, Justice Scalia made a major blunder in his slip opinion. He accused EPA of having previously tried to incorporate costs into the Clean Air Act, citing the 2001 American Trucking decision. However, it was industry groups and not EPA who had made this argument in American Trucking, a decision authored by Justice Scalia. Apparently Scalia was sufficiently embarrassed by his mistake to change this portion of his dissent because a new sentence and subheading were substituted on the Court’s website this morning. Not since 1983 when Justice Rehnquist’s slip opinion in Ruckelshaus v. Sierra Club inadvertently disclosed that the Justices originally had voted the other way (see my article “Environmental Law in the Supreme Court: Highlights from the Marshall Papers,” 23 ELR 10606, 10621 (1993)) has such an embarrassing mistake been made by a Justice in an environmental case.
Tens of thousands of protesters have succeeded in temporarily halting the construction of two nuclear reactors at a site outside of Taipei. Protesters overwhelmed police and took over control of an eight-lane highway. Taiwanese President Ma Ying-jeou has pledged to call a referendum to determine whether to complete construction of the plants whose proximity to earthquake faults has raised public concern.