Reaching Out to the Rule of Law: China's Continuing Efforts to Develop an Effective Environmental Law Regime

William & Mary Bill of Rights Journal Volume 11 | Issue 2 Article 4 Reaching Out to the Rule of Law: China's Continuing Efforts to Develop an Effective Environmental Law Regime Richard J. Ferris Hongjun Zhang Repository Citation Richard J. Ferris and Hongjun Zhang, Reaching Out to the Rule of Law: China's Continuing Efforts to Develop an Effective Environmental Law Regime, 11 Wm. & Mary Bill Rts. J. 569 (2003), https://scholarship.law.wm.edu/wmborj/vol11/iss2/4 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj REACHING OUT TO THE RULE OF LAW: CHINA'S CONTINUING EFFORTS TO DEVELOP AN EFFECTIVE ENVIRONMENTAL LAW REGIME Richard J. Ferris Jr.* & l-longjun Zhang, Ph.D.* TABLE OF CONTENTS INTRODUCTION ................................................. 570 1. CHINA'S ENVIRONMENTAL SITUATION ............................. 573 11. CHINA'S CURRENT ENVIRONMENTAL LAW FRAMEWORK .............. 576 A. Key Aspects of China's Environmental Lawmaking System ........ 576 1. The National People's Congress ........................... 576 2. NPC Legislative Committees ............................. 577 3. The State Council and State Council Administrative Departments. 577 4. Provincial and Municipal Governments ..................... 579 5. Special Economic Zones ................................. 580 B. Key National and Local Environmental Laws .................... 581 1. O verview ............................................. 581 2. National Environmental Laws ............................. 582 Richard J.("Tad") Ferris is a Director and Co-Chair of the International Section of Beveridge & Diamond, P.C. He has advised the Chinese government, multilateral institutions, and foreign investors on numerous issues related to environmental, health and safety laws, market access, and treaty implementation in the People's Republic of China. Further, Mr. Ferris has assisted the Chinese government on comparative law projects associated with the development of China's environmental laws and related administrative and enforcement/inspection structures. Among other positions, Mr. Ferris serves as the Chair ofthe United States Council for International Business China-Environment Working Group, a Member of the Business and Industry Advisory Council to the OECD China Investment Task Force, a Member of the Boards of the Professional Association for China's Environment and the International Fund for China's Environment, and the Chair of the International Environmental Law Committee of the American Bar Association's Section on Environment, Energy and Resources. ** Dr. Hongjun Zhang is of Counsel with the International Section of Beveridge & Diamond, P.C. Dr. Zhang advises clients on compliance with a wide range of Chinese environmental, health, safety, investment, and trade laws. Dr. Zhang was formerly a Legislative Director with the Environmental Protection and Natural Resource Conservation Committee of China's National People's Congress (NPC). Among his other responsibilities at the NPC, Dr. Zhang was involved in the development of China's major environmental laws and oversaw the implementation of these laws at the provincial and municipal levels throughout China. Prior to joining the NPC, Dr. Zhang served as a Program Officer in China's State Environmental Protection Administration. Additionally, he currently serves as a senior research fellow at the Harvard University Center for Environment and a member of the Board of Directors of the Energy Foundation. * WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 11:569 3. Local Environmental Laws ............................... 4. Draft Laws: The Future .................................. III. CHINA'S ENVIRONMENTAL LAW IMPLEMENTATION .................. A. Key Law Implementation and Institutional Capacity-Building Developm ents ........................................... B. Factors Contributing to Implementation Challenges ............... 1. Local Government Protectionism .......................... 2. Public Participation and Information Access....... ......... 3. Current State of the Private Practice of Environmental Law ...... 4. Law Drafting and Technical Infrastructure for Implementation of Environmental Laws ...................... ........... 5. Personnel Resources of Key Regulatory Authorities ............ 586 587 589 590 594 595 596 598 599 600 IV. CONCLUSION: MOVING TOWARD MORE EFFECTIVE IMPLEMENTATION .. . 601 INTRODUCTION The rapid development and related environmental burdens of the People's Republic of China received widespread attention from a variety of domestic and international observers over the past two decades.' Much of this attention has When conducting research in preparation for writing this article, the authors interviewed high-level officials at China's NPC, State Environmental Protection Administration (SEPA), and other government organizations. A promise of confidentiality was made to the interviewed officials. As a result, the names and titles of the interviewees are not disclosed in this article. The interviewees are indicated by the letters "A, B, C, etc.," along with the date(s) of the interviews. Chinese-language notes covering these interviews are on file with the authors. Additionally, in order to provide a more fulsome discussion of China's environmental legal system in this article, the authors did not cover the equally important and related occupational health and safety laws. One such law is China's Safe Production Law [An Quan Sheng Chan Fa], adopted on June 29, 2002 and effective on November 1,2002. Among the measures in the Law with relevance to environmental protection is the first paragraph of Article 32, which reads "[t]hose who manufacture, deal in, transport, store, or use dangerous substances, or dispose of waste dangerous goods shall be subject to examination, approval, and supervision of the [regulatory] departments concerned in accordance with the relevant laws and regulations, as well as national or trade standards." That being said, it is worth noting that many of the challenges associated with the implementation of China's .environmental regulatory regime, noted in Part III, are relevant to an analysis of China's occupational health and safety regime. See, e.g., CHINA COUNCIL FOR INT'L COOPERATION ON ENV'T & DEV., PROCEEDINGS OF THE FOURTH MEETING (1996); QU GEPING & Li JINCHANG, POPULATION AND THE ENVIRONMENT INCHINA (Jiang Baozhong & Gu Ran trans., Robert B. Boardman ed., 1994); HONG JIANG, THE ORDOS PLATEAU OF CHINA: AN ENDANGERED ENVIRONMENT, U.N. Sales No. 99. III.A.25 (1999); MANAGING THE ENVIRONMENT INCHINA (Qu Geping & Wo-yen Lee eds., 1984); HE PO-CH'UAN, CHINA ON THE EDGE: THE CRISIS OF ECOLOGY AND 2003] REACHING OUT TO THE RULE OF LAW centered on the extent and nature of these burdens and has painted a very bleak picture of China's environmental challenges. This outlook has perhaps been (...truncated)