November 3, 2011
Source: Time Weekly
It is generally assumed that the outlook for China’s environment is grim. A recent report about air and underground water pollution in Beijing reinforced this view.
The Chinese are increasingly concerned about the quality of their environment, but they don’t know who to turn to for help. This became evident when the Bohai Bay oil spill in June 2011 was not sufficiently cleaned up and a series of environmental accidents resulted. Events like this raise the question of who should assume responsibility for the environment. Although the question seems basic, it has no easy answer. Take management of underground water, for example. Many departments exercise some authority over water resources—giving contemporary expression to the “nine dragons controlling water” found in Chinese legend—yet their duties are not clearly defined. And none of them wants to take responsibility for pollution when it becomes a problem.
Yet responsibility matters. The oil spill in Bohai Bay made me think. When China’s Marine Environment Protection Law was being drafted, several departments spared no effort in claiming authority over the sea, but none was willing to accept legal liability when pollution problems occurred. With power comes responsibility. Each department, however, competes for power and influence and avoids taking responsibility when problems arise.
Why was it that we stopped building so many nuclear facilities after the Fukishima accident? Could it be because, over the last 20 years, we developed nuclear power without basic legal safeguards? If a nuclear accident happens, there is no Chinese law we can turn to. The country planned to draft an atomic energy law in 1984, yet to this day it has not been written. One reason we do not have this legislation is because some departments strive to manage power rather than accept responsibility. It is absurd that there is still no law regulating a sector as dangerous this.
Is it a lack of environmental legislation that is causing so many problems? Actually not. Since reform and opening, many laws safeguarding the environment have been enacted, bringing an end to the days when there were no laws offering protection. Now the challenge is to improve upon existing laws and execute them more effectively. Currently a combination of factors has created a deadlock that severely limits the enforcement of environmental protection.
One such factor is Article 16 of the Environmental Protection Law. It states that local governments are responsible for the environment in their area of jurisdiction. For example, Beijing Municipal People's Government should be responsible for Beijing’s air pollution. But the law does not clearly regulate how local governments are to take responsibility and be subject to legal liability. Governments have too much power and too little responsibility, and the few responsibilities they do have are seldom enforced.
It is difficult for citizens to challenge governments. The courts will not deal with their complaints because clear evidence is lacking. For this reason, the next step in holding governments accountable must involve making environmental responsibilities clearer and more enforceable. But governments alone cannot be held responsible for our environmental problems. Every individual should assume some responsibility for the environment. We are not only victims of pollution, but also its cause.
The root cause of China’s environmental problems lies in the structure of its energy system. Currently coal meets 70% of the country’s energy needs, followed by petroleum, natural gas and other fossil fuels. Clean sources of energy, such as hydroelectric, nuclear, and solar power account for only 8% of the total. Under these conditions essential changes are difficult to make.
Another primary cause is the structure of China’s industry. The industrial sector occupies a large proportion of the whole and is dominated by chemical manufacturing. This is certain to cause serious environmental pollution. Laws can do little to address problems as long as this general structure remains in place. Furthermore, to spur economic growth and development, local governments sometimes take action that violates the law. For example, only a few projects of those supported by a four trillion yuan investment in 2008 passed the Environmental Impact Assessment. Environmental problems ensued.
Finding the solution to environmental problems is a huge undertaking. Our government and society should take responsibility for addressing the problems, and individuals should reflect on their role as well. Although we cannot solve all problems with one stroke, we should not shy away from the challenges we face. Many of our current environmental standards are below international levels. For example, our standard for the atmosphere was set in 1996. After more than a decade of economic and technological development, we have the ability to meet higher standards. Yet no revision has been proposed. There is fear that the government’s image might be tarnished if status reports show a failure to meet the standard. But a higher standard must be set to protect public health.
We need to enhance the mechanisms for investigating accidents and assigning blame for them. In the case of the Bohai Bay oil spill, we will investigate companies’ administrative and civil liability, as well as their criminal culpability. So far no department has called for an investigation into the criminal liability of ConocoPhillips. Some observers consider the 200 thousand yuan fine for pollution to be too little. This reflects a misunderstanding of China’s environmental penalty. The Administrative Punishment Law says no one should be punished twice for the same offense. But how do we define the “same offense”? Is such long-term and large scale pollution the “same offense”? If one day’s pollution deserves a fine of 200 thousand yuan, think how much the fine should be now, after more than 100 days.
The author is Vice President of the Environment and Resources Law Research Center of the Chinese Law Association and a professor at Fudan University.
Translated by: Cui Yafeng, Zhang Huan
Proofread by: Sandra Chaney