The Quality of Chinese Environmental Law〔*〕

Fu Jingjing

(School of Law　Southwest Petroleum University,Chengdu　Sichuan　610500)

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The Quality of Chinese Environmental Law〔*〕

Fu Jingjing

(School of LawSouthwest Petroleum University,ChengduSichuan610500)

Ⅰ.The term “legislative quality”

According to the Dictionary of Law,〔1〕“quality” is an implied term that the goods supplied under the contract meet the standard that a reasonable person would regard as satisfactory.Thus generally speaking,the “quality of legislation” could be referred to as the degree to which legislative instruments and procedures live up to the legislative standards in general.In light of this,a key question is what are the standards for the quality of legislation,especially for the environmental legislation?

Ⅱ.Evaluation criteria of legislation

Indicators of legislative quality mentioned above are rather general and theoretical,and they are represented in quality policies of different countries or organizations.Drawing from theories of legislative quality stated above,this analytic framework for environmental legislation comprises of four criteria:efficacy and effectiveness,efficiency,and enforceability.

Ⅲ.Evaluation of Chinese environmental legislative quality

Generally speaking,Chinese environmental legislation suffers from ineffectiveness,inefficiency,and unenforceability as its formulation.

1.Ineffectiveness problems

The quality of effectiveness and efficacy firstly requires formulating the legislative goals clearly.Considering China’s environmental legislation,quite a comprehensive set of legislation has vague objectives.Effectiveness and efficacy secondly imply that a law must take into account the actors and problematic behaviors in the law-making process.However,when making a law,policy-makers in China always regard regulatory agencies as perfect person which will not be interpreted by external factors.And based on this kind of legislative logic,most environmental legislation in China adopts the command-and-control model in environmental governance.The command-and-control model presumes that environmental protection bureaus on behalf of governments will successfully implement the law.However,there is empirical evidence that environmental protection agencies in China are captured by polluting enterprise and local governments.〔2〕As a result,the inappropriate legislative logic will cause an ineffective legislation as a matter of fact.

2.Inefficiency problems

Efficiency of legislation requires the introduction of costs-benefits analysis into the process of lawmaking.However,the development of Chinese environmental legislation has been strongly influenced by notions of fairness and justice.Policy-makers have paid too much attention on fairness and justice,paying too little attention to efficiency.

Efficient legislation secondly means that diverse instruments for achieving the legislative objective should be identified based on a cost and benefit analysis.To begin with,the level of the discharge fees is set at a lower level than the costs of pollution control.Such a design would lead the regulated actor (pollution enterprises) to prefer to pay discharge fees rather than innovating cleaning technology.Secondly,the coverage of the charge is another problem.Pollution discharge from small enterprises or plants may not be monitored by local environmental protection agencies.

3.Unenforceability problems

Enforceable legislation firstly means that the norms in the law should be accessible as practicable.To begin with,norms that demand too much from the regulated actor will lead to a high amount of violations and less application.In theory,Chinese environmental protection bureaucratic system operates as a unitary top-down management system where legislation emanates from the central government in Beijing to which sub-national units of governments must adhere.〔3〕In practice,however,local environmental protection bureaus may be captured by local governments,pollution enterprises,and other interests’ parties.Even though there is no influence of interests groups,the enforcement effects of local environmental protection bureaus may be restricted due to limited resources,capacity,and information.In addition,norms addressed in the legislation should be able to carry out.Take environmental information disclosure mechanism as an example,the 2015 Amendment to the Environmental Protection Law has introduced the information disclosure regime into China.However,the law only provides citizens the rights to access environmental information,and does not provides any remedy approach when this right has been violated.In light of this deficiency,the enforcement of environmental information disclosure may encounter uneven path.

Secondly,environmental laws will be most effective if they provide the authorities necessary for their own enforcement.Without sufficient authority,an enforcement program can be severely handicapped in its ability to create compliance.In China’s case it is rather common that the amount of fines or sanctions is negotiated between polluters and administrative agencies.〔4〕The fact that local governments very often intervene in environmental violation sanctions makes it difficult for environmental protection bureaus to discharge their duties.This is because local environmental protection bureaus are administrated by local governments.All resources,bonuses,and promotions of environmental protection bureaus are granted by local governments.Therefore,insufficient autonomy undermines discretion and enforcement effect.In addition,in the context of China,the administrative agencies are considered more the ideal superintendent than the social participants.Nevertheless,in fact,administrative agencies are also participants in society,and so equally subject to uncertainty.Regrettably most environmental legislation seldom considered factors that hindered agencies from implementing legislation.There is a notable absence of any precise details in how agencies would accomplish these goals.

The third aspect of enforceability is that the norms in the law should be as acceptable and reasonable to the regulated actor as possible.However,in China’s context,legislation is largely made in a top-down manner.For law to be developed in this way,Chinese citizens are less consulted and considered,which may lead to less compliance and higher administrative costs.

Ⅳ.How to improve the quality of environmental legislation in China?

1.Introducing the public choice theory into law-making process

The interest group problem has been found by most scholars in the field of China’s environmental regulation.In the central legislative level,the policy-makers are impacted by the interaction between multiple stakeholder groups with sometimes divergent interests when making policy-decisions.As a result,the law or regulation may be a product of compromise.In the local legislative level,local legislation can more easily legitimize irregular decisions under the wide discretion which was given by the vague local regulation.

Public choice theory indicates that if it were possible to organize a countervailing power against industry lobbing and local protectionism,a kind of competition between various pressure groups could emerge,the result of which may be closer to the optimum than when government is only affected by pressure groups representing industry interests and economic development.〔5〕Therefore,it is worth noting that we should pay attention to the power of public environmental awareness,public participation,and environmental NGOs.When designing laws the regulations,policy-makers should specify details of public participation and environmental interest litigation.4.2 Choosing Environmental Instruments in a Appropriate Way

The choice of industrial pollution control instruments is a crucial factor for environmental decision-making.The toolbox of environmental instruments is extensive,varying from environmental taxes to civil liabilities and a variety of command and control instruments.The question then arises that how to choose among the alternatives in order to make a good legislation?

Generally speaking,there are three types of environmental instruments,i.e.,(1) the incentive-based instruments,(2) the common law remedies,and (3) the command-and-control instruments.According to Professor Michael,incentive-based instruments mean that the policy goals (for example,the ambient quality) are set,but that the ways to reach these goals are (more or less) left up to those regulated.〔6〕Incentive-based instruments seek to address the market failure of externalities (such as pollution) by incorporating the external cost of production or consumption activities through taxes or charges on processes or products,or by creating property rights and facilitating the establishment of a proxy market for the use of environmental services.This kind of instruments may take a variety of forms,including environmental taxation,property-rights,charge system and tradable permits.Common law remedies are a very popular instrument in environmental regulation.From a legal perspective,the common law may provide the individual with a recourse in fighting for an acceptably clean environment.Several causes of action were available to a plaintiff at common law to protect and compensate him from pollution harm.An alternative instrument for government to control of negative externalities is the so-called command and control regulation.The basic concept of command and control is that it is the task of the regulator to collect the information necessary to decide upon actions to control pollution,and then to command potential polluters to take specified action.〔7〕The various types of command and control instruments have a fundamentally different modus operandi.Anthony Ogus (1994) has categorized a spectrum of regulations,running from low intervention to high intervention.According to him,the lowest intervention is the regulation of information,while the highest intervention is “prior approval”.In the middle of the spectrum is “standards” which could be categorized as target standards,performance standards and specification standards according to the degree of intervention.〔8〕Information regulation requires the potential polluter discloses the information about risks.Standards regulation defines a firm’s duty in terms of environmental protection.Prior approval involves giving the power to a body such as a regulatory agency,to screen out institutions which fail to meet minimum criteria.The licensing regime (discharge permit system) could be regarded as a typical instrument of prior approval.

Each category has its own advantages and weakness.Incentive-based instruments are more cost-effective than traditional forms of regulation.Incentive-based approaches also can address small sources of pollution such as households that are not easily controlled with traditional forms of regulation,as well as provide an incentive for polluters to improve performance relative to existing regulatory requirements.Besides,incentive-based forms of regulation can provide a stimulus for technological change and innovation in pollution control.However,because of less than perfect market information,high transaction costs,and difficulties in pricing collective goods and internalizing externalities,incentive-based instruments may fail to generate the promised efficiencies.〔9〕The major strength of command and control regulation is its dependability (providing there is adequate monitoring and enforcement).Laws and regulations could provide much greater certainty for both the regulated actor and regulators.Thirdly,command and control regulation may guarantee substantial reductions of damage to the environment,especially under a situation where threats to the environment are severe and time is limited.On the other hand,the present state of command and control regulation has several shortcomings.The command and control regulation is costly,not only at the enforcement level,but also at legislative level and information access level.Secondly,the command and control regulation in many cases failed to generate sufficient incentives for polluters to reduce their pollution levels.In addition,enforcement often proves to be difficult or weak,mainly owing to the great number of controls,administrative requirements,staff,legal procedures in case of non-compliance and so on.

As a result,as the failings and limitations of these instruments to regulation have become increasingly apparent,it is suggested that a better strategy will seek to harness the strengths of individual mechanisms while compensating for their weaknesses by the use of additional instruments.An excessive reliance on ‘single instrument’ approaches is misguided,because all instruments have strengths and weaknesses,and because none are sufficiently flexible and resilient to be able to successfully address all environmental problems in all contexts.〔10〕In the case of China,it is an urgent task that policy-makers should pay more attention to the use of incentive-based instruments.

Ⅴ.Conclusion

Notwithstanding the substantial literature in analyzing the Chinese environmental regulation,it is difficult to judge whether or to what extent the current Chinese environmental legislation has been optimal without the evaluation criteria.Hence,this contribution is fundamental to the task of designing optimal environmental legislation.This article firstly provides an overview of theories on legislative quality.By reviewing the literature on this subject,this thesis outlines our criteria against which we evaluate the success of environmental legislation.Five criteria (effectiveness,efficiency,enforceability,proportionality,and clarity) have been identified as important indicators of successful legislation.Then we evaluate Chinese environmental legislation based on these criteria and explore limitations.Last but not least,we put forward three important suggestions in order to improve Chinese environmental legislation,including establishing integrated principles,encouraging the improvements of public participation and NGOs,and choosing a broader vision environmental instruments.

References:

〔1〕L.B.Curzon,Dictionary of Law (six edition),Law Press,2003,p.347.

〔2〕Jonathan Schwartz,The impact of State Capacity on Enforcement of Environmental Policies:The Case of China,12 Journal of Environment & Development,2003,pp.50-80.

〔3〕Stefanie Beyer,Environmental Law and Policy in the People’s Republic of China,5,Chinese Journal of International Law,2006,pp.185-211.

〔4〕William P.Alford,Yuanyuan Shen,Limits of the Law in Addressing China’s Environmental Dilemma,1997,16,Stanford Environmental Law Journal,pp.125-148.

〔5〕Gary S.Becker,A Theory of Competition Among Pressure Groups for Political Influence,1983,98,The Quarterly Journal of Economics,pp.371-395.

〔6〕Michael G.Faure,Environmental Regulation,in Roger J.Van den Bergh & Alessio M.Pacces (eds.),Regulation and Economics,Edward Elgar Publishing,2012,p.244.

〔7〕Michael Faure,Marjan Peeters and Andri G.Wibisana,Regulation and Economics,Edward Elgar Publishing,2012,pp.221.

〔8〕Ogus,Anthony Ian,Regulation:Legal Form and Economic Theory,Clarendon law series,1994.

〔9〕Blumm M.G.,The Fallacies of Free Market Environmentalism,1992,15,Harvard Law and Public Policy,pp.325-547.

〔10〕Gunningham N.,Sinclair D.,Regulatory Pluralism:Designing Policy Mixes for Environmental Protection,1999,21,Law & Policy,pp.49-76.

This article intends to provide some perspective on how a normative framework for environmental regulation could be developed in theory.It focuses on the quality of Chinese environmental legislation based on five criteria,i.e.effectiveness,efficiency,enforceability,proportionality,and clarity.This article then evaluates Chinese current environmental legislation from the perspective of good quality of legislation.In conclusion,this article puts forward several suggestions in order to improve China’s current environmental law.These approaches include establishing integrated legal principles,introducing the public choice theory into law-making process,and choosing environmental instruments in a appropriate way.

quality of legislation;environmental legislation;criteria;legal principles;environmental instruments

About the author：Fu Jingjing,vice professor in School of Law,Southwest Petroleum University,PhD of Maastricht University in the Netherlands.

〔*〕This paper is the staged achievement of National Social Science Project(15CFX053)and special fund for social sciences of Southwest Petroleum University 92013RW016).