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opportunity-china.co.uk
December 2014
INTERVIEW
Changes Still Required
There are a number of further changes that are still needed.
Take the issue of local protection. Local governments inChina
and theUS often feel a lot of pressure to prioritise economic
development over environmental protection. In theUS, a big
change came in the 1970s when the federal government
took amuch stronger hand inmonitoring and enforcing. The
equivalent inChinawould be if theMinistry of Environmental
Protection hadmore resources and a greater ability to define
the places where there’s very bad local implementation and
punish local governments and local polluters.
A critical element in any country’s environmental protection
is the role of the public. Local people affectedby pollution are
the ones that care themost about reducing pollution. If citizens
are able to identify problems andhave their voices heard; - to
helpput some pressure onpolluters to reduce their pollution; -
that can be an extremely powerful force.
TheProblemwith
Public Participation
The problem in the past was in terms of priorities, economic
development trumped environmental protection. If citizens
wrote articles or talked to themedia and raised objections,
most of the time those objections were not heard. Therewas no
response to them to improve environmental projects. The result
is the public feels that the official channels are not responsive.
Potential options are the courts –will courts be able tomake
difficult decisions against polluting factories? The history has
not been good on this. Courts have been very weak and have
not beenwilling sometimes even to accept cases that affect
very valuable economic interests. It’s an open question as to
whether courts can play a greater role in the future, and I hope
they do.
The other possibility is that the environmental regulators
might withstand pressure from economic interests and other
vested interests and actually enforce. In the last few decades
it’s been very difficult for local regulators to do it and the central
agency hasn’t had enough resources to really enforce. So that’s
an open question as towhether that will change.
Inparticular, will the central agency get enough resources
to really put pressure on local polluters?
What’s very promising about the environmental area is that
there has been the space for the public to get involved.
There aremoreNGOs probably in the environmental area than
in any other topic area. They’ve been very active in educating
the public and also in advocating for policy changes for
better reinforcement.
Citizens are interested in having a clean environment,
so they’ve been active even if they’re not experts. There are
dozens if not hundreds of cases every fewmonths inChina,
where the public gets involved and tries to affect theway the
polluters behave. If the public is allowed to continue to do
this, and educate themselves to get the information they need
to understandwhat the problems are, and also tomobilise
to express their views and create some pressure for better
enforcement, I think that will be a really critical element
andwill be essential if Chinawants to turn around its
environmental performance.
Learning from theUS
The experience in theUS in the early 70s was that a lot of polluters tried to
test the law and tried to not comply. It required the government and citizens to
take these polluters to court and courts tomake toughdecisions according to the
law to get these polluters to change their behaviour. And so that’s the key: canwe
make the polluters change their behaviour, canwemake them invest themoney
to reduce pollution? No one is saying that we don’t want to have strong economic
growth. We just want the factories to be responsible and not put the cost of their
pollution onto the public. The experience in theUSwas that pollution dropped
drastically in the 70s, 80s and 90s while economic growth continued to increase
substantially. It’s really the best of bothworlds: a stronger economy and a cleaner
environment.
TheAmendment
One highlight which has beenmentioned bymany scholars is the public-
interest litigation. Under the new law, moreNGOs have been granted the
standing to bring litigation on behalf of public interest. That’s definitely a plus.
HarshPunishments
They’re essential. If you have an arbitrary ceiling there, that has led to the
previous serious pollution inmany aspects. In the past, the polluters would judge
and evaluate the pros and cons and also the costs and benefits. If the penalty
theymight pay will be less than the benefits they obtain then they’rewilling to
pay the penalty. So, the penaltymust be high enough tomake sure that not only
will polluters not benefit at all but also that they will pay a serious price. But that’s
only one step. In the judicial cases, when they cases are brought to the court,
you need tomake sure that the judiciary will actually implement and enforce it
andmake sure they pay a big price for polluting the environment.
Lin Feng isactingDeanand
Professor of theSchool of Law
atCityUniversityHongKong
and specialises inChinese
lawandenvironmental law.
