| | | The Enforceability of Chinese Water Pollution Regulation
| | 环境保护 免费论文下载 Introduction During his speech at the 1997 Work Conference of the Chinese Communist Party Central Committee on birth planning and environmental protection, China''s president and CCP general secretary Jiang Zemin recapitulated the country''s efforts at implementing environmental protection law as follows:
We have to continue, within the framework of the socialist market economy, to ameliorate the legal system for environmental protection. We have to install strong legal weapons in order to strengthen environmental protection work. Over the last years we have progressed in the field of implementing environmental law. Last year we have closed down fifteen types of severely polluting small enterprises . Governments of all levels have proceeded firmly and achieved good results.
However, the enforcement of environmental law remains to be a weak link. It needs to be strengthened unremittingly in order to enhance the results of the implementation of law. The relevant environmental protection governmental authorities must exercise, based on the law, an integrated management control with regard to environmental protection. Judicial authorities must strengthen their judicial work and based on the law, firmly attack crimes relating to acts damaging the environment. Summarizing, the whole party and all citizens must work hard together to protect the environment and bring benefits to the future generation of our children and grandchildren.
More than twenty years after promulgating the first environmental protection legislation it has become apparent that enforcement is problematic in China. Chinese policy makers and academic researchers have tried to identify the causes for the difficulties of enforcement. They have indicated a wide scale of problems, ranging from local protectionism, to a lack of authority of local EP institutions; from a lack of resources for EP work, to a lack of knowledge of EP law and of environmental awareness. Most of the problems are institutional, related to the institutional setting in which the enforcement work is to be carried out. Little attention has been paid to legislation , which is supposed to form the basis on which EP enforcement is to be executed, in relation to such enforcement.
In this article we will focus on the enforceability of EP norms. We will evaluate the enforceability of water pollution regulation in China. We will try to answer two questions. The first question is theoretical: what are the criteria for enforceability of EP law? The second question is one applied to water pollution regulation in China: to what extent is water pollution regulation in China enforceable? The article will conclude with lessons and recommendations for possible improvements in Chinese water pollution law to enhance its enforceability.
Enforceability of legislation
The main assumption this article is based on is that some legislation is easier enforceable than other legislation. The quality of the legislation itself has an effect on its implementation and enforcement .
Before we go any further let us first define what we mean by enforcement. Here we will define enforcement as the reaction by a public institution to a violation of law in order to stop such violation and/or prevent such violations in the future. Central in this definition is the violation of a legal norm. It is the enforceability of such legal norms that we will evaluate.
What then are the criteria for enforceability? In this article we will try to adapt criteria for enforceability of EP law, which have been made for the Dutch context, to the Chinese context. Jong made an evaluation of the enforceability of EP permits in the Netherlands. In his dissertation he distinguishes several requirements of enforceability for such permits . We will take these requirements as the basis for analyzing the enforceability of EP legislation. As these requirements were derived from a Dutch context we will only use the basic assumptions on enforceability that lie beneath these requirements and make them applicable outside of the Dutch context. In doing so we must distinguish between the enforceability of legislation as a whole, enforceability of legislative systems, such as EIA, and enforceability of individual norms. Below we discuss the requirements of enforceability.
Necessity
The first requirement is necessity. We can distinguish between legal necessity and environmental necessity.
In our concept of legal necessity rules should be necessary in a sense that they serve to bring forth a certain behavior of those persons the rule tries to address. Rules that are written down as legally unnecessary policy statements and not aiming at setting a norm addressed at a certain regulated community describing a certain behavior are not enforceable. The more rules in the form of policy statements, the less rules that are enforceable. In extreme situations, when most of the rules are policy statements, the enforceability of a law as a whole can be undermined.
The second aspect of necessity is the necessity of certain rules in relation to the protection of the environment. Legal rules are aiming to achieve certain benefits, at a certain cost. When enforcing a rule will not provide any benefits with regard to EP, such a rule may be unnecessary. Such unnecessary rules will probably not, or not often be enforced and are therefore less enforceable. In terms of environmental necessity it is better to use less, but more effective rules than using more, but less effective rules.
Adequacy
The second criterion for enforceable EP law is the adequacy of the law for EP. The norms and legal systems contained in the regulation should provide an adequate normative framework for attaining the goals of the legislation. When the norms and legal systems are not adequate to attain the goals of the legislation, the legislation as a whole becomes less enforceable. In EP legislation such goals are EP . The fabric of combined norms and legal systems should be adequate for sufficiently reducing adverse effects on the environment. When, for example, some important pollutants have not been regulated in EP law, enforcement action against the discharge of such pollutants will fail.
The adequacy of EP norms is closely connected to the actual type of adverse effects (see Adaptability below). When new types of industry develop, older norms may no longer be adequate. Adequacy is similarly related to the development of new EP techniques and the development of environmental quality.
The adequacy of EP law is further related to the necessity. When the costs of enforcing a norm far exceed the possible benefits, a less stricter, less adequate norm, may actually be more enforceable because of the lack of necessity.
Legal Certainty
The third criterion for enforceability is legal certainty. Rules should be as clear as possible. Ambiguity and vagueness should be avoided. The vaguer a norm or a legal system the harder it is to establish whether a violation of such a norm or legal system has occurred, and the harder it is to enforce such a norm or legal system. Vague rules leave space for interpretation. Such space gives the enforcement authorities discretion on whether or not to see an act as a violation of a rule and therefore whether or not to initiate enforcement action. Such discretion may have a corrupting influence on the enforcement agent''s work.
While vagueness and ambiguity of rules can never be avoided completely , much can be done to make legislation less open to interpretation. To enhance the legal certainty of a rule, the rule should be as clear and specific as possible. Vague or ambiguous terms or sentences should be avoided, the number of exceptions to a rule should be limited, and rules should not be contradictory . Besides, rules should be accessible to the public.
In order to be clear, rules must define precisely what is subject to their requirements. Rules must provide definitions for the most important terms used. With some terms, such as for example "toxic wastes" or "hazardous chemicals", such definitions may not be possible. In those cases a legislator may issue a list of elements that fall under such a term. By providing such definitions there will generally be more legal certainty about a rule''s regulated community, scope of application, substantive requirements and measurement indicators. A second way of improving legal certainty is that a rule must clearly indicate whether any, and if so, which standards are applicable. A third way of improving legal certainty is that when there are exceptions to a rule, these exceptions should be stated clearly and not in such a way that they undermine the original norm. Finally rules should have clear deadlines for compliance and if necessary work with interim deadlines.
Another important way of enhancing the legal certainty of legislation as a whole is by enhancing the coordination of legislation. Especially in EP law there may be rules and regulations that are made by many different authorities that may not always form a clear and coherent whole. By ensuring coordination and integration during the drafting process or harmonization when revising legislation the legal certainty of rules can be ameliorated.
Adaptability
The fourth criterion is adaptability. Rules must be stated in such a way that their content can be applied to the complexities of the actual reality in which no two cases are ever truly alike. In EP law with its technological complexities this is especially true.
A special aspect of such adaptability is a rule''s actuality. Rules must be kept up-to-date in order to remain enforceable. Rules must keep pace with the latest technical and environmental developments.
The way through which rules can be adaptable is through the use of open norms. These norms can be adapted to different and changing circumstances. One way of using open norms is making laws that only contain procedural rules and general provisions and having a system of ministerial regulations that provide specific implementation regulations for the implementation of such general laws.
It seems that most environmental legislative systems must find a balance between adaptability and legal certainty. While rules must be as precise as possible, they also need to be open so that they leave room for discretion for the application of such rules. Without such discretion rules may become outdated or not be applicable, and because of that there may be a danger of unreasonableness or unresponsiveness of the agents in charge of the application.
Feasibility
The fifth criterion of enforceable rules, we will discuss here, is the feasibility of a rule. There are two main types of unfeasible rules.
The first type are rules that are so strict that compliance with such norms would lead to unreasonable adverse effects for the regulated. In such a situation the rule-addressee will not be able to comply. Moreover, the enforcement agent or subsequently the court may not want to force him to comply because they know that compliance leads to an unreasonable situation.
The second type of unfeasible rules are rules that prohibit behavior that exists at a widespread level in society. In such a case the costs for enforcing such norms may be unfeasible. The smaller the regulated community the easier a rule can be enforced.
Verifiability
The sixth criterion is verifiability. Some rules are easier verifiable than others. Rules that clearly state that a certain action must be taken (method requirements) can be verified by observing whether such action is taken. Rules that state that a certain goal must be met (goal requirements), require the inspection authorities to carry out technical tests to ensure that such goal is met. Method requirements are therefore easier verifiable than goal requirements. Goal requirements can be verified through inspections and monitoring by the enforcement agency involved but can also be indirectly verified through self monitoring by the regulated enterprise. In the case such self monitoring is used there should be clear rules on the ways and schedules of monitoring and regular check ups of self monitoring activities and sanctions for giving false data.
A second example of a difference in verifiability of rules is that rules that contain prohibitions of action are more difficult to verify than rules that require a certain action. In case of a rule which requires all industries to apply for a permit, it can easily verified whether a new industry has applied for such a permit. A rule which prohibits certain discharges can only be verified through inspections or through complaints.
Provability
The seventh criterion is provability. Enforceable rules are those rules whose violation can easily be proved. This is closely connected to the question of verifiability. Generally when violations of rules are easily verified they are also easier to prove.
For delivering proof rules must contain clear measurement indicators. When a rule is not operationalized clearly, there can be problems with proving a violation. This is especially the case with goal-requirements. Method requirements when clearly stated do not have to be measured. In cases where rules have been operationalized, we can distinguish between indicators that are relatively easily measurable and indicators that may be difficult and expensive to measure.
A second factor that can influence the provability is whether the effects of a violation of a norm are generally detectable and measurable at the time of evidence collecting. The effects of violations of norms that prohibit radio-active waste dumping will for example be longer visible and easier to detect and measure than the effects of violating a cooling water discharge prohibition norm.
One way of enhancing the provability of rules is by shifting the burden of proof from the enforcement agency to the regulated. This can be done in several ways. Firstly a system of self-monitoring of compliance can be installed. In such a system the regulated must periodically prove to be in compliance. Such a system only works when violations of self monitoring procedures are sanctioned. A second way of shifting the burden of proof is by actually reversing the burden of proof to the regulated. In cases where the enforcement agency under such a system has reasons to believe that the regulated is in violation, the regulated has to prove its innocence. Such reversing of the burden of proof will often not be used in EP regulation, but can in some countries be found in anti-discrimination regulation. A third way of shifting the burden of proof is by installing a system where the regulated requires approval before carrying out certain activities. This system is often found in EP legislation in the form of discharge permits.
Chinese Water Pollution Regulation
Now that we have basically outlined the requirements of enforceable law, we can make an analysis of the enforceability of Chinese water pollution prevention and control legislation. In this article we will only look at the enforceability of substantive rules that are addressed at possible polluters.
The main law on water pollution in China is the 1984 Water Pollution Prevention and Control Law (WPPC), which was last amended in 1996. This law is applicable to surface and ground water pollution. The WPPC is further elaborated in the WPPC Implementing Regulations, which were last amended in 2000. Some of the other rules that are applicable to the WPPC can be found in integrated legislation such as the EP Law, or the 1998 State Council Administrative Regulations on EP at Construction Projects. Apart from these integrated rules there are also other special sectoral water pollution regulations that further elaborate the WPPC and its implementing regulations.
The WPPC makes use of the following legal tools aiming at preventing and controlling water pollution: environmental impact assessments (EIA), three synchronizations, pollution reporting and registration, pollution (excessive) discharge fees, and total control areas permits. Except for these legal tools, the WPPC uses specific legal norms that prohibit certain action, or prescribe certain action. Violations of most tools or norms is sanctioned in the WPPC sanctions section.
Below we will discuss these tools and norms separately and in more detail. It is only after we have discussed the separate legal tools and the specific legal norms that we can continue our analysis of the enforceability of the water pollution prevention and control legislation as a whole by looking at the effects of the combination of tools and norms used on the enforceability of the law.
Legal Tools
Environmental Impact Assessment
The first legal tool used in the WPPC is the Environmental Impact Assessment. This tool requires all new constructions to carry out an assessment of the expected impact the construction will have on the environment. Art. 13 of the WPPC stipulates that all construction projects (be they new or renovations) that discharge (directly or indirectly) pollutants into the water, including water installations, must abide by the state regulations of EP for construction projects. Art. 13 further stipulates that the EIA report must make an evaluation of the possible water pollutants the construction may bring forth and of the possible impact such pollutants have on the living environment. The report should regulate prevention and control measures and should be approved by the relevant EP department.
The WPPC thus provides some very basic regulation on EIA. The provisions of art. 13 are a specialized copy of art. 13 EP law. The main regulations on EIA is not to be found in the WPPC, nor in the EP law. It is laid down in the 1998 State Council Administrative Regulations on EP at Construction Projects.
Our first analysis of the EIA system concerns its necessity. The EIA legal system does not contain rules in the form of non-enforceable policy statements. In this sense the EIA systems scores well in terms of legal necessity. In terms of environmental necessity we can say that the EIA system, when fully implemented, would bring certain benefits of which the most important one is integrating the planning of construction with the planning on EP. As such the system, especially applied together with the Three Synchronizations System and/or a discharge permit system can help to prevent and control water pollution.
For our analysis of the adequacy of the EIA system we must first look at its scope of application. Neither the WPPC, its implementing regulations, nor the 1998 Regulations provide any clear guidance on this legal tool''s scope of application. These regulations do not provide definitions for the main terms used in the EIA system. The central word "jianshe xiangmu" (construction projects) is not defined. Nor is the term "dui huanjing you yingxiang" (that have an impact on the environment) defined. Because we thus do not know exactly what type of projects are construction projects that have an impact on the environment, we do not know which projects lie within the scope of application and should carry out some form of EIA. Another example of how a lack of definitions makes the scope of application unclear are the regulations concerning the type of EIA that should be carried out. Art. 7 of the 1998 Regulations provides that projects with a "zhongda" (significant) impact should carry out the most extensive type of EIA, the EIA statement (baogao shu). Projects with a "qingdu"(light level) impact have to carry out a less extensive type of EIA, the EIA form (baogao biao). Projects with a "henxiao" (very small) impact have to carry out the least extensive EIA, the EIA registration (dengji biao). From the regulations it does not become clear which projects have a severe, a light or a very small impact.
When we, now that we know more about the scope of application, turn to our analysis of the adequacy of EIA we find that the EIA regulations only apply to construction projects. This seems to exclude a wide range of activities, notably those conducted in existing constructions, which may have an adverse impact on the environment.
Because both the WPPC, the EP law and the 1998 Regulations lack clear definitions about the scope of application, the regulation concerning EIA is deficient in terms of legal certainty. Another problem with the legal certainty of EIA are the vague requirements for approval of EIA statements. Construction projects that fall under the scope of the EIA regulations have to ask for approval of their EIA. None of the regulations provide more detail as to how the EIA authorities must decide whether to grant approval or not.
The lack of legal certainty in this case leads to a virtual full discretion for deciding on approval. Such wide discretion leads to a wide applicability of the law. We must state however that such full discretion on deciding on approval of EIA does not necessarily lead to a better enforcement because of its enhanced adaptability. In the light of China''s EP institutional problems, discretion on approving EIA may in fact lead to local protectionism, corruption and nepotism.
EIA scores better on the other requirements of enforceability. EIA is highly feasible, it does not put great demands on the regulated. The costs for carrying out an EIA are not insurmountable. Further, EIA is verifiable and provable. EIA requires a certain action and this action can be easily verified and because it is a method requirement it does not need to be measured in order to provide proof of violation. One problem which might have an adverse effect on the verifiability and provability can be checking whether the EIA report was made correctly. For this measurements and calculations would be necessary.
Three Synchronizations
The second legal tool used in the WPPC is what is called the Three Synchronizations (San Tongshi). Art. 13 of the WPPC provides that the water pollution prevention and control installations in construction projects must be designed, built and put into operation at the same time as designing, building and operating the construction itself. Before entering into operation the construction unit must apply with the EP department who has approved the EIA Statement (Form or Registration) for verification and approval of the completion of the EP installations. Only projects whose installations have been approved can enter into operation.
Much of what has been said above about EIA also applies to the Three Synchronizations. The Three Synchronizations system does not contain policy statements and scores well in terms of legal necessity. Further, it is an environmentally necessary system as it is beneficial to the prevention of pollution. Because the scope of application is limited to construction projects, the Three Synchronizations system may lack in terms of adequacy. Further, just as we have seen with the EIA, the regulations on the Three Synchronizations lack in terms of legal certainty, because of a lack of definitions. This is especially confusing for the scope of application. But the regulations also lack in legal certainty for not providing rules on what requirements EP installations must meet in order to gain approval. Because of the lack of legal certainty the Three Synchronizations score better on adaptability with the authorities having a high level of discretion both about the scope of application as well as on approval. Again we can say that this need not necessarily lead to a better adaptability, but may be a cause for corruption and local protectionism. In terms of feasibility the Three Synchronizations do not seem to score badly. Requiring the simultaneous design and construction and operation of EP installations is not unfeasible it seems. However, this depends on what is demanded of such EP installations. And that is one of the things the law does not specify. The Three Synchronizations System is verifiable until the project is put into operation. Before operation the constructor and the authorities work closely together to implement the Three Synchronizations. After the moment that final approval is granted and the project goes into operation, it becomes more difficult for the authorities to verify whether the EP installations are used. Art 14 WPPC states that water treatment facilities cannot be turned off without prior approval of the local EP authorities. The problem is that the authorities have no way of constantly knowing whether these treatment facilities are used. For this they would have to carry out inspections. The Three Synchronizations do not seem to present problems in the field of provability as they are method requirements that do not need measuring.
Pollution Discharge Reporting and Registration
The third legal tool used in the WPPC is the Pollution Discharge Reporting and Registration (PDRR) system. Art. 14 of the WPPC stipulates that enterprises and government sponsored institutions who, directly or indirectly, discharge pollutants into a body of water must ask for registration with the relevant local EP authorities. The registration should include the installations that are used to make the discharge, the treatment facilities, the types, quantities and concentration of pollutants discharged under normal circumstances, and the technical data with regard to the water pollution and prevention. Art. 14 continues to stipulate that any major changes in types, quantities or concentrations of discharged pollutants should also be reported and registered in time. Art. 4 of the WPPC Implementation Regulations provides some more detail on the procedure of PDRR. It states that a Discharge Declaration and Registration Form must be filled out by those units that directly or indirectly discharge pollutants into a water body. Except for this, this article does not provide much more information of the PDRR system procedure. For this we must look in the 1992 NEPA (14-8 1992) Administrative Regulations on the Pollutant Discharge Declaration and Reporting.
We will start our analysis of the enforceability of the PDRR system with the necessity of the regulations used. The PDRR system is very important within the Chinese system of EP law as it provides the EP authorities with information from discharging units that can form the basis for the implementation of other systems such as the P(E)DF and the permit system. Because the system does not make use of any policy statement-type rules and its important role for other EP legal tools it scores well in terms of legal necessity and environmental necessity.
Before we can make an analysis of the adequacy of the system we must learn more of the scope of application. The scope of application seems to be very wide. Any unit, governmental or non-governmental, that directly or indirectly discharges pollutants into a body of water must comply with the PDRR system. As such the PDRR system does not have the adequacy problems of the EIA or Three Synchronizations systems related to a limited scope of application. It should be noted though that the PDRR system on its own does little to protect the environment from water pollution. Only when the system is used concurrently with other systems can it help to prevent and control pollution.
The PDRR system suffers from problems of legal certainty that are similar to those we have seen with the EIA and Three Synchronizations Systems. There are no clear definitions of "paifang" (discharge), "wuranwu" (pollutants) or "shuiti" (water bodies). Because of the lack of these definitions and the fact that the main regulations are laid down in Administrative Regulations, the PDRR system scores better in terms of adaptability. Just as we have seen twice above, the PDRR system does not present the discharger with high costs and is therefore a feasible system.
Violations of the PDRR system are easily verifiable when no registration has been made. In most cases it will be clear that a unit who is active in a certain line of industry will produce a certain kind of discharge. When a unit who is engaged in, lets say paper industry, is in operation without a registration, it is obvious that he is in violation. What is more difficult to verify is whether a unit has violated the rules of reporting changes in discharge. For this the authorities have to carry out inspections and do on site tests.
Proof of violations of the PDRR system requires measuring the discharge. In case of gathering proof for not having registered at all, such measures need only to indicate that pollutants have been discharged into the water. For violations of not registering changes in discharge the measures should be more precise and indicate the change in discharge. Because no measurement indicators are prescribed in the law, gathering such proof may be problematic.
Pollution (Excessive) Discharge Fees
The fourth legal tool used in the WPPC are the Pollution Excessive Discharge Fee (PEDF) and the Pollution Discharge Fee (PDF) systems. Art. 15 WPPC stipulates that enterprises or governmentally sponsored institutions who discharge pollutants into water bodies must pay discharge fees according to state regulations. Art. 15 further stipulates that enterprises or governmentally sponsored institutions who discharge pollutants, exceeding the standards, into water bodies must pay excessive discharge fees according to state regulations. More detailed regulation on PEDF is to be found in the 1982 State Council Temporary Measures on the Levy of Pollution Discharge Fees. Another important regulation is the 1991 NEPA (jointly with the State Price Bureau, and the Ministry of Finance) Notice on the Revision of the Collection Standards of Water and Noise PEDF. The most important discharge standard for water pollution is the 1998 Integrated Water Pollution Discharge Standard (GB8978-1996). For the PDF system so far no special regulation has been issued.
Our analysis of the enforceability of PEDF and PDF is in part similar to that of the other three systems we have analyzed above. The PEDF, as well as the PDF system seem to be necessary systems for preventing and controlling water pollution. Because of their wide scope of application and their effect of letting the polluter pay for his discharges, they are a very important tool of EP within the system of water pollution prevention and control legislation. They score well both in terms of legal necessity as well as environmental necessity.
If we look at the adequacy of both systems we find that because of the fact that the fees are lower than the costs for clean-up , these systems will not provide an incentive to make industry comply with the discharge standards. Even though the scope of application is wide, the lack of incentive because of the low fees, makes that the PEDF/PDF systems are not adequate in the sense that full enforcement of these systems would lead to attaining the goals of the WPPC. In this the PEDF and PDF systems score low on enforceability. A further problem of adequacy of the PEDF system is that the discharge standards on which the fee is based are discharge concentration standards. Enterprises can easily avoid paying PEDF by diluting their pollutant discharge so that it remains within the standard limits.
We also see problems with the legal certainty of the PEDF/PDF system. For PDF as of yet no special implementation regulations have been issued. Because of this the law is practically silent on such key issues as the level of fees and the procedure for fee collection. For PEDF the most important problem is that the present 1982 PEDF regulations are outdated and were only meant as temporary measures. For PEDF this lack of one up-to-date set of rules makes that implementing rules are scattered over different types of legislation, which makes it difficult to determine when PEDF is payable and what amount of fee is payable. A great improvement for the legal certainty of the PEDF is the 1998 Integrated Water Pollution Discharge Standard, which integrates several standards for special types of water pollution. Another problem with the legal certainty of the PEDF/PDF systems is similar to those indicated above with the other systems: a lack of clear definitions leading to vague terms such as pollutants, discharge, etc.
The PEDF system is lacks in adaptability. Unlike the other systems we have discussed so far, which because of their lack of legal certainty did well in terms of adaptability, PEDF regulation lacks both in terms of legal certainty as well as adaptability, because of its outdated regulations. One would expect that temporary measures that date back as far as 1982 could be renewed and finalized in permanent regulation.
The PEDF (and as far as we know) the PDF systems are feasible, we might even say too feasible that they are no longer adequate. The costs of these systems for the regulated community are so low that they do not provide an incentive to comply with the standards.
As the PEDF and the PDF systems require the measuring of the amount of discharges they both score lower in terms of verifiability. For the provability we can say that at in the case of the PEDF the measurements have been operationalized in the applicable standards (such as GB 8978-1996).
Total Control Permit System
The fifth system we will discuss here is the permit system. Art. 16 of the WPPC stipulates that in key pollutants discharge total amount control areas, provincial level governments or higher can implement an authorization (heding) system for key pollutants discharge. Such total amount control areas can be instituted by provincial level governments or above for water bodies in which the water discharge standards are met, but the national quality standards still have not been met. Art. 16 further provides that the State Council will issue detailed measures. So far such measures have not been issued. The authorization system of art 16 WPPC is in fact a discharge permit system and is further elaborated in art. 10 of the WPPC Law Implementation Regulations. Both the WPPC and its Implementing Regulations provide little more detail on the procedure of the permit system. For this we must look in the 1988 NEPA Temporary Measures on the Water Pollution Discharge Permits. Although these regulations were made before the actual laws were made they still seem to apply as there are no other special regulations. The permit system prohibits discharging pollutants in a total control area without a permit . After registering their expected pollutant discharge units in total control areas must apply for a discharge permit . Units whose discharge is within the local allocated amounts may get a permit, which is valid for 5 years . Units whose discharge will exceed the allocated local amount will obtain a temporary permit, which is valid for 2 years, and will have to reduce their discharge within a limited time .
When we analyze the necessity of the permit system, we find that the permit system does not make use of policy statements and scores well in terms of legal necessity. The permit system is a very necessary tool within the Chinese water pollution framework. Unlike the EIA and Three Synchronization systems, the permit system, when enforced, will force polluters to meet certain targets after they go into operation. The difference between the permit system and the PEDF and PDF system is that the permit system directly influences the discharge of the polluter and is not depended on an incentive created by fees. The permit therefore also scores well in terms of environmental necessity.
For the adequacy of the permit system, again we must look at the system''s scope of application. The permit system is limited to total control areas. Within these areas the scope of application is considerably wide. The system applies to all units who directly or indirectly discharge pollutants into a water body. Outside of these total control areas the system does not apply. As we have seen above these total control areas can only be installed for water bodies which have met the discharge standards but still fail to meet the national quality standards. So in those areas where not even the discharge standards have been met the permit system could not be used. This makes that the permit system is not as adequate as it could be. A second problem with the adequacy of the system is that there are no provisions for refusing to issue a permit. Either a permit is to be issued for units meeting the local allocations or a temporary permit for units that fail to meet allocations. In any case, it seems from the law, that a (temporary) permit will never be refused and that units will always be able to go into operation. The system might also be more adequate if permits could be issued under certain requirements. As such the permit system could be combined with the Three Synchronizations system.
The permit system suffers from the same problems of legal certainty as we have seen above: a lack of clear definitions and old temporary measures that form the basis for the whole system. As such we can apply the same about adaptability to the permit system as we have observed with the PEDF system: the permit system, even though it scores badly in terms of legal certainty, also scores badly in terms of adaptability, because its special regulations are old.
In terms of feasibility the system seems to score well. As there are no grounds for refusing permits, all units can go into operation. Units who have a temporary permit are forced to reduce their discharges. The feasibility of the system may be endangered when the schemes for such reduction are too rigid.
After units have obtained a permit it is difficult for the authorities to verify and to prove whether they discharge according to what they are permitted. For this they would have to carry out tests and measurements at the unit''s facilities. To make this less of a problem the Temporary Measures prescribe a system of self-monitoring for the discharging units. Through this system units who have a permit must report about their discharges to the relevant authorities. Units who have a temporary permit must also report about their discharge reductions. The verifiability is enhanced by such a self monitoring and reporting system. However checking the unit''s data and carrying on site inspections remains necessary for verifying permit compliance.
As the permit system is based on meeting certain discharge amounts, it contains goal requirements. The law does not provide clear indicators of how compliance should be measured.
Specific Norms
Apart from the five EP legal tools we have just discussed, the WPPC and its Implementation regulations also contain specific norms addressed at water polluters in order to change their behavior. Here we will discuss these norms by type of norm and shortly analyze their enforceability.
Duty of Care
Article 5 of the WPPC stipulates that all persons and units have a responsibility to protect the water environment. This article contains a catch-all formulation for a duty of care norm.
We can wonder whether this stipulation, when read on its own, is just a policy statement or whether it is actually a norm addressed at a certain regulated community trying to change a certain behavior. From the wordings of this stipulation this is not entirely clear. If we look at this norm in the light of the WPPC as a whole, it seems that this stipulation can serve as a net for those harmful acts against the environment that are not already covered by the law’s legal tools or other specific norms. It should also be noted that the WPPC does not provide a sanction for not fulfilling the responsibility of article 5. So it seems that the norm can only be used in a civil liability context. As such the norm does not seem to add much to the existing stipulations of art. 124 of the General Principles of Civil Law and art. 6 of the EP Law. Concluding, we can question the necessity of this norm.
When we move to the adequacy of the norm, we find that this norm could well be highly adequate as a catch-all duty of care because of its wide scope of application. However, because it lacks any legal sanctions, other than civil liability, its coercive force seems limited.
The legal certainty of the norm is highly questionable. When exactly has one fulfilled his responsibility to protect the water environment. Is this the case when one is in compliance with the WPPC? In that case art. 5 would loose all sense of necessity as it would add nothing to the other legal tools and norms. If one can also be held responsible for not protecting the water environment even though one is in compliance with the WPPC, this article would endanger the whole system of legal certainty of the WPPC as a whole.
Because the norm is written down in such a wide and catch-all fashion it scores well in terms of adaptability. It is difficult to say anything about the feasibility of the norm. As it has been stated it does not seem to put the norm addressee to certain costs. The costs the enforcement of this norm have on the responsible unit will depend on the damages his behavior has incurred. Because the norm is extremely open and vague it seems difficult to determine what is a violation and therefore also how such violation can be verified and proved.
Clean Production
This article stipulates that enterprises when using (yuancailiao) raw materials must make use of efficient clean production techniques that only cause minor quantities of pollutant discharge.
This is clearly a norm that is directed at a certain regulated community in order to change their behavior, as such the norm scores well in terms of legal necessity. The norm seems to do well in terms of adequacy because of its wide scope of application. However as this particular norm lacks a sanction it may not have much of a coercive effect. Because the norm as laid down in art. 22 WPPC does not tell us exactly which production techniques are clean, and we also cannot find an answer to that question in other regulation, such as the WPPC Implementing Regulations, or in the 1997 NEPA Opinion on the Promotion of Clean Production, the norm seems to lack in terms of legal certainty. The lack of a specific elaboration of the term clean production techniques does make the norm score well in terms of adaptability. For feasibility again because we do not know which techniques should be used, we also do not know what the costs of enforcing this norm would be to the regulated community. The norm contains a method requirement and therefore scores well in terms of verifiability and provability. Although it should be noted that verifying compliance with this norm does require on site inspections.
Substance Prohibitions
The WPPC contains eight articles which stipulate specific prohibitions in terms of discharging, dumping, burying, storing certain types of substances in such a way that they can harm surface or ground water. Art. 29 stipulates it is prohibited to discharge pollutants through releasing oils, acid liquids, alkali liquids or highly toxic waste liquid into the water. Art 30 stipulates that it is prohibited to wash vehicles or containers which have been used for transporting or storing oils or toxic pollutants in a water body. Art. 31 stipulates that it is prohibited to discharge into a water body, or to dump onto the ground, or bury directly under the ground dissolvable and highly toxic wastes, such as wastes containing mercury, cadmium, arsenic, chromium, lead and cyanides. Art. 32 stipulates that it is prohibited to discharge or dump industrial wastes, domestic rubbish and other wastes into a water body. Art. 33 prohibits the storing of solid wastes or other pollutants in shallows and sloping banks which are lower than the peak waterline of rivers, lakes, canals, irrigation ditches and reservoirs. Art. 34 prohibits releasing or dumping high-level radioactive solid wastes or high- or medium-level radioactive waste waters. Art. 41 prohibits the discharge by using seepage pits, crevices or karst caves of waste waters containing toxic pollutants, dirty water pathogens or other wastes. Art. 42 prohibits carrying waste water or dirty water containing pathogens or other wastes through, or storing it in, ditches, canals or ponds for which no measure for seepage control has been adopted.
These norms do well in terms of necessity, as they all seem to be norms that are directed to change a certain behavior and not mere policy statements. The prohibition of the discharge, dumping or storing of the substances in the ways such as has been regulated in these articles is beneficial to EP. In this sense these norms are also successful with regard to environmental necessity.
By using these norms the legislator seems to put an emphasis on the prohibition of discharging, dumping, storing or releasing of certain substances in such a way that they can pollute surface or ground water bodies. As such these norms work as a net for those discharges that are not yet fully covered by the legal tools described above. These norms therefore help to enhance the adequacy of the WPPC as a whole. Violation of these norms is sanctioned with fines ranging from 2000 RMB to 100.000 RMB.
In terms of legal certainty we run into some problems. The law does not define what some of the terms used in these norms, such as: "highly toxic wastes", "industrial wastes", "domestic rubbish", "solid wastes", or "pollutants". Nor does it state what extent of acidity or alkaliness is prohibited. The law also makes use of a vague term like “other wastes” that could come to include almost anything. The effect of such lack of clear definitions, limits and the use of vague terms is that the norms contained in these articles score low in terms of legal certainty.
The low score on legal certainty here does add to the adaptability of these norms. The norms can be adapted when implemented in such a way that they apply to different or changing circumstances.
As to the feasibility, because of the lack of legal certainty we do not know what the precise effects of the norms will be. What we can say is that when some of these norms are interpreted widely they would lead to a prohibition of a great deal of activities. The way some of the prohibitions have been stated, lacking a total amount or concentration limit, and without clear definitions and with the use of a vague term such as other wastes, it seems that a complete enforcement of this norm would not be possible without major economic and social consequences.
The verifiability of these norms requires on site measurements or reports of spills from victims. The provability also requires measurements and is difficult because the norm has not been operationalized.
General System of Water Pollution Regulation
Now that we have discussed the legal tools and the specific norms used within the Chinese system of water pollution regulation we can turn our analysis to the enforceability of the legislation as a whole.
We will start our analysis of the enforceability of Chinese water pollution legislation with the necessity. The WPPC and the WPPC Implementation regulation contain little or no rules that are unnecessary in a legal perspective. Most regulations are either directed at changing a certain type of behavior or are of a procedural kind. The water pollution legislation also does not present much problems in terms of environmental necessity. Most of the rules that are used when enforced, would achieve benefits for EP.
When we pursue our analysis to the adequacy of Chinese water pollution legislation as a whole, we have to look at the combined adequacy of the systems and norms used and we have to analyze what systems or norms might be missing. This analysis is very difficult indeed. For one we can state that under the present framework there are some problems in terms of adequacy. At present only the legal system of discharge fees has a wide scope of application. But as we have seen this system lacks in adequacy because the fees used are too low. The two systems of EIA and Three Sunchronizations both lack in scope of application, as they only apply to construction projects but also in a sense that they only seem to be effective before a construction goes into operation and are less effective upon final approval. Further these systems are less effective as the law does not provide what the exact requirements of EP installations are. The PDRR system is not an adequate system on its own. It can only work as a supplementary system needed for the implementation of P(E)DF and permit systems. The permit system lacks in adequacy because it only applies to total control areas, and because the law is unclear about reasons for not approving a permit and finally because the law does not provide that requirements can be attached to permits. As such, we can conclude that Chinese water pollution legislation lacks an integrated adequate legal system for pollution prevention and control. The specific norms of duty of care and clean production lack sanctions and therefore also lack in adequacy. The specific prohibition sanctions have both a wide scope of application and are sanctioned. However, these specific sanctions can only play a supplementary catch-net role to the legal systems. As such they cannot be seen as the solution to the problems of adequacy encountered with the legal systems. Summing up, we can conclude that Chinese water pollution legislation lacks in terms of adequacy because it lacks an adequate framework of legal systems aimed at preventing and controlling pollution.
With all of the legal systems and norms we have discussed above we have seen that there are problems in terms of legal certainty. In most cases these problems are the result of a lack of definitions of some of the most important terms used in the legislation. If we look at the WPPC, or its implementation regulations we find that they do not contain any definitions at all. Only in the EP law do we find one definition in art. 2 in which the term “environment” is defined. Because of the lack of these definitions there can be two kinds of problems in terms of enforceability. Firstly, enforcement action upon violations of these vague norms may not be upheld by courts on the basis that the violator had no way of knowing whether his act would constitute a violation of such a norm. Secondly and perhaps even more important in the Chinese context is the fact that the lack of definitions leaves a very extensive legal discretion to the law enforcers to determine whether there has been a violation, before deciding whether to react upon such a violation. In a country where the main problems of enforcing EP law are said to be institutional and in which enforcement agents both lack the authority, the resources and sometimes even the incentive to enforce the law such legal discretion will surely lead to less enforcement.
In most cases we have seen that the lack of legal certainty has led to a better adaptability. Chinese EP law has often been left so open to interpretation and further regulation that is could easily be adapted to different and changing circumstances. The fact that the WPPC is further elaborated in the WPPC Implementation Administrative Regulations is a good example of a legal system aiming at a high degree of adaptability. The WPPC is supposed to contain the most important general rules that are elaborated in State Council administrative regulation. Such implementation regulation can be changed easier than NPC laws. In such a way the actual implementation of law can be kept up-to-date with changing circumstances. In the case of the P(E)DF system and the permit system we have found that the lack of legal certainty did not lead to a better adaptability. The special regulations that were made to provide specific stipulations, are considerably old, especially the PEDF regulations that still date from 1982.
For the feasibility of the water pollution legislation in general we can be optimistic. The law does not seem to cause the regulated insurmountable costs. However because of the vague terms used in the law and especially in the case of the prohibition norms and the duty of care, we do not know exactly what is expected of the regulated. So we can not be entirely sure about the extent of the feasibility of the water pollution legislation in China.
In terms of the verifiability we get a mixed picture. On the one hand there are some legal systems that enhance the verifiability of the legislation as a whole. Here we mean the EIA system, the Three Synchronizations system, the PDRR system and the permit system. With all these systems the regulated has to take a certain action and has to provide information and cooperate with the EP authorities. The problem (and this problem exists in any EP legal system) is that the authorities will always have to check the information provided by the regulated. For the Three Synchronizations system such a check is easier than for the other systems and norms. This is because the Three Synchronizations system is a pure method requirement.
In terms of provability we find that in almost all systems and norms there are problems. Just as we have seen with the verifiability all systems require some sort of inspections to check whether the regulated is in compliance. Only in the case of the Three Synchronizations system will measurements not always be necessary because it verification and proof gathering can be carried out visually during on site inspections by seeing whether the EP installations are in use. In case measurements are to be carried out for verification they must also be used for proof of a violation. For proving such measurable violations the Chinese water pollution legislation in most cases does not provide operationalizations of measurements. Only in the case of PEDF are these operationalizations provided by the applicable discharge standards.
Conclusion, are there feasible options for improvement?
In figure one we have summarized the findings of this short analysis of the enforceability of water pollution regulation in China.
WPPC EIA Three Syn. Report. P(E)DF Permit Care Cl. Prod Prohib.
Necessity + + + + +/- + +/- + +
Adequacy - +/- +/- +/- - - +/- +/- +
Legal Certainty - - - +/- +/- +/- - - -
Adaptability + + + + - +/- + + +
Feasibility + + +/? + + + +/? +/? +/?
Verifiability +/- +/- +/- +/- - +/- - +/- -
Provability +/- +/- + +/- +/- +/- - +/- -
Figure 1
The most serious problem with the enforceability of water pollution regulation lies with the regulation’s adequacy and legal certainty.
As we have analyzed, at present the legislation lacks a legal system with a wide scope of application that is adequate for preventing and controlling water pollution. A solution to this problem, we wish to suggest here, would be to institute a permit system with a wider scope of application, that would include all those activities that may have adverse effects on the environments carried out within a certain system of activities. Such a permit system would then have to include requirements that can be attached to permits for specific kinds of activities. The EIA and the Three Synchronizations Systems could then be adapted and incorporated into the permit system as requirements for certain kinds of severe polluting activities. Of course I am not the first to mention a permit system that is applicable on a larger scale. Actually the Asian Development Bank sponsored research, whose results were used as the basis for the 1996 amendments of the WPPC advised similarly. At the time of drafting the amendment such a permit system was just simply politically not feasible. So now it is hoped that with the permit system for total control areas a general permit system will be introduced in phases. I believe that it is important to keep emphasizing why such a general permit system is important.
A second way of enhancing the water pollution legislation''s adequacy would be to raise the P(E)DF fees and enlarge the scope of application of both the EIA and Three Synchronizations systems. By making these amandments, the adequacy of the system might be raised considerably without having to install the politically sensitive general discharge permit system. However, these amendments may also not be politically feasible. Raising the PEDF fees is a measure that often been named , but is probably still not done because of political reasons. The same would probably apply to the wider scope of application for EIA and Three Synchronizations.
The second important problem of the enforceability of Chinese Water Pollution Legislation is the lack of clear definitions. Because of this, the enforcement agents have an extremely large extent of discretion which combined with the institutional problems leads to enforcement inaction. Again this problem has been mentioned by the ADB report. What I am surprised to see is that the report does not make recommendations on stipulating definitions of the most important terms and making lists which indicate which situations fall under the legal systems and norms used in the legislation . As such the amended WPPC has not been much of an improvement in this field. We can wonder whether the vagueness and the ambiguity of Chinese water pollution legislation may have been intentional. As such we can further wonder what the intentions for a lack of legal certainty have been. Was it aimed at achieving a greater adaptability or was it the aim of the legislator to keep environmental law from become too strong and too enforceable? At this point I have not seen any indications that the lack of legal certainty was intentional, and further that such intentions were directed at undermining the effectiveness of the law. The lack of legal certainty therefore seems to be an unintentional flaw of the law and as such could and should be addressed through making clear definitions and eradicating as much as possible the use of vague and ambiguous terms.
The problems of enforcement cannot be solved without also addressing the problems of the legislation. As legislation is a gradual process in China, the enforceability can only be enhanced gradually. As such we can only hope that the attention to these problems remains high and that those changes that may seem unfeasible now will be feasible and carried out in the near-future.
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