Assessing the Dragon's Choice: the Use of Market-Based Instruments in Chinese Environmental Policy

Georgetown International Environmental Law Review, Summer 2004 by Shuwen, Jolene Lin

There is a broad range of "environmental liabilities" in Chinese law - criminal, civil, economic and administrative sanctions may be imposed by a variety of law enforcement agencies according to the details of the particular case; the most serious cases of environmental pollution are dealt with as criminal issues. However, most environmentally-related disputes are brought to the courts in the form of ordinary civil litigation. The General Principles of the Civil Law 1986 provide, in Articles 124 and 134, the right for any individual to apply to the courts for an order requiring the polluter to remove the source of pollution and pay damages.16

B. THE INSTITUTIONAL FRAMEWORK

1. The State Environmental Protection Administration (SEPA)

The SEPA is the chief agency addressing the country's environmental issues. It falls under the direct control of the State Council,l7 from which it receives almost all its funding. The Committee on Natural Resources and Environmental Protection under China's chief legislative body, the National People's Congress, supports the SEPA in policy-making. The main responsibilities of the SEPA include: formulating and implementing the national plans for pollution control, ecological conservation, protection of the marine environment, wetland conservation, prevention and control of desertification, advising the State Council on the establishment of new national natural reserves, formulating national environmental quality standards, environmental monitoring and data collection, and conducting environmental impact assessments of major economic and technological policies, as well as actual development and construction activities as required by relevant regulations.18

The SEPA sits at the top of a hierarchy of Environmental Protection Bureaus (EPBs) or Environmental Protection Offices (EPOs) at the provincial, city, county, and, in some places, township levels.19 However, this should not imply that it exercises strong central authority and coordinates the activities of the EPBs or EPOs. As will be discussed below, the SEPA has minimal influence over the local environmental agencies. It is this lack of influence, coupled with the strength of local authority, that impedes effective environmental regulation.

2. The Environmental Protection Agencies

The SEPA is represented by Environmental Protection Bureaus (EPBs) or Offices (EPOs) at the local level.20 The main responsibilities of these local environmental units are to enforce laws, implement SEPA-designed policies and draft local regulations to supplement those issued by the SEPA.2' Thus, EPBs and EPOs work directly with local factories, industrial bureaus and local government bodies (including planning commissions, economic commissions, People's Congresses and mayors). Due to the country's vastness and economic decentralization in the past twenty years, there are significant disparities in the size, funding, staffing, and even work methods of EPBs in different parts of the country. On a national level, environmental protection is inadequately funded, but the EPBs in the wealthier coastal provinces and cities tend to be better staffed, more adequately funded and have more technically-trained personnel than those in poorer, more remote regions.22