Law and the Environment in China

On June 2, Wang Canfa, Director-Founder of the « Center for Legal Assistance for Pollution Victims » (CLAPV), and professor at the China University of Political Science and Law, gave a talk at McGill University on the challenges and solutions in the field of environmental rights in China. Cliquer ici pour version française.

Named « hero of the environment » by Time Magazine in 2007, Wang began his talk by noting the apparent failure of the environmental movement in China. Despite considerable effort since the beginning of the reform period, the environment continues to deteriorate. Before 1978, the concept of environmental legislation was completely nonexistant. The situation has greatly changed over the past thirty years. Whether it is a question of sea pollution, water tables, or air pollution, from a legal standpoint, China is on a par with most industrialized countries.

Nonetheless, in the past few years, ground pollution, caused by heavy metals, has led to a reduction of ten million tons in grain production, losses which are the equivalent of millions of Chinese yuan. Barely 200 kilometers north of Peking, a desert is replacing what was once a green countryside. In many regions of China, desertification is advancing at an alarming rate. The production of animal waste is also increasing at a troubling rhythm, surpassing the production of household waste, which is growing at at 12.5% annual rate. In terms of water pollution, we note the phenomenon of the “red tides,” toxic tides caused by an overabundance of agricultural pesticides or industrial detergents in the water, and which are on the increase since the 1960s. Finally, in Southeast China, emissions of nitrous oxide account for important problems linked to the acid rains that fall on nearly one third of the county. Such rains are harmful to both flora and fauna.

According to Wang, the problem is not with China’s laws. The laws are severe, but China lacks the means to assure that the laws be respected. According to Wang’s research, less than 60% of China’s enterprises respect the present environmental laws. Having participated in several court cases, Wang has had occasion to witness the incapacity of the legal system to render adequate judgements. In 250 cases of major pollution followed by the CLAPV, only 10% of the enterprises involved were called to account.

Wang deplores the fact that environmental laws cannot act independently from economic considerations. Because of China’s centralized structure, local leaders do not have to account for their actions to the Environment Ministry, but rather to the central government, which naturally favors economic growth. Currently in China, environmental costs are not factored into calculations of the economic profitability of a region.

The same logic holds for individual office-holders. Local leaders, hoping to get ahead in their careers, are judged exclusively on their ability to contribute to GNP growth, which leads to all sorts of irregularities. Improvement on the environmental front is thus held hostage to a larger reform of China’s meritocracy. In addition to statistics, the quality of a leader should be judged by the people under him, and these people should consider the environment. In general, the people should assume an ever-increasing role in the process of decision-making, so that power will no longer be concentrated in the hands of a few officials concerned only with economic growth.

At another level, the system of taxes and fines is also faulty. In the current system, there are few monetary constraints on pollution, nor on non-respect for environmental laws. In many cases, fines paid for non-respect for environmental laws are but a drop in the bucket compared to the profits made through pollution-ridden production. A system of taxation which would tax companies according to how much pollution they are engaged in could solve the problem. Similarly, damages to be paid in the case of non-respect of environmental laws should be decided in terms of the profits realized by the companies involved, and these fines should be increased if the companies continue to break the law.

At present, NGOs like CLAPV or the EPA have no real power. Even if they report cases of industrial pollution to local leaders, their recommendations are rarely considered. Given the shortage of specialists in environmental law, Wang would like to see the EPA given the right to take direct action. Popular culture in China leads too many Chinese to view the government as having unlimited power, and to believe that all will be well if only the laws are respected. Yet the reality has demonstrated that few Party members have the professional competence necessary to ensure environmental protection. To solve this problem, Wang argues that a certain number of environmental experts should be sent to serve in China’s legislatures, where they would have the right to speak during debates and deliberations.

Despite this depressing portrait, Wang remains indefatigable and more than ever determined to advance the cause of the environment in China. The CLAPV continues to offer a telephone service providing legal aid to victims of pollution. This service has already responded to more than 10,000 requests for aid, and also offers free training in environmental law to Chinese lawyers, as well as continuing to organize symposiums and conferences, like the one we attended June 2.

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