Breakthroughs and highlights of the new Environmental Protection Law
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2014-11-10
On April 24, 2014, the newly revised Environmental Protection Law was approved by an absolute high vote at the 8th meeting of the Standing Committee of the 12th National People's Congress and will come into effect on January 1, 2015. The revision of the Environmental Protection Law can be regarded as a typical specimen of current Chinese legislation, hailed as one of the Environmental Protection Laws and another important milestone in the history of Chinese environmental legislation.
The new Environmental Protection Law has significant innovations in concepts, principles, and systems
The Environmental Protection Law actually serves as a fundamental law in the field of the environment. A significant difference between the Basic Law and the Departmental Law is that the former focuses on establishing and designing basic principles, systems, etc. The latter focuses on developing specific regulations to enhance operability. A major highlight of this revision is the introduction of the concept of ecological civilization, the establishment of the principle of prioritizing protection, and the establishment of numerous institutional support.
During the revision process, the legislative body, in accordance with the spirit of the 18th National Congress and the Third Plenary Session of the 18th Central Committee, included "promoting ecological civilization construction and promoting sustainable economic and social development" as the legislative purpose in the general provisions, established environmental protection as a basic national policy of the country, and determined the "June 5th" Environmental Day. For the first time, "protection priority" was listed as the first basic principle to be adhered to in environmental protection work, while clearly stating the need to promote harmony between humans and nature, Emphasize the coordination between economic and social development and environmental protection.
In order to implement the concept of ecological civilization and ensure the implementation of the principles of "protection priority" and "coordinating economic and social development with environmental protection", the new Environmental Protection Law has some institutional arrangements and innovations in its specific provisions, including environmental warning system, environmental and health monitoring, investigation and risk assessment system, ecological protection red line system, pollution discharge permit management system, and environmental impact assessment area approval system, Cross administrative joint prevention and control mechanisms, environmental monitoring systems, environmental protection assessment and evaluation systems, environmental impact assessment systems, information disclosure and public participation systems, ecological protection compensation systems, environmental economic policies, and other systems and policies.
These systems and policy regulations, some of which are specific and clear, while others only provide principles, leaving a lot of room. For example, the regional approval limit system for environmental impact assessment has been clearly stipulated in the new Environmental Protection Law. For areas that exceed the national key pollutant discharge total control indicators or fail to meet the national environmental quality goals, the approval of construction project environmental impact assessment documents for new key pollutant discharge total amounts should be suspended. The establishment of this system is in line with the Administrative Licensing Law and cannot be interpreted as an administrative penalty measure. For example, the establishment of an ecological protection red line system, while the new Environmental Protection Law only provides for principles. There are many different opinions on whether to establish a red line system and how to do so, so it is only a matter of principle and leaves a lot of room.
The new Environmental Protection Law has constructed a new pattern of environmental governance
The new Environmental Protection Law emphasizes the balance of rights and obligations, further highlighting the environmental responsibilities of the government and enterprises. At the same time, it clarifies the rights and obligations of citizens and social organizations to participate in environmental protection, and constructs a new pattern of diversified governance and social participation in environmental governance, providing institutional guarantees for promoting the transformation of environmental management strategies.
The Environmental Protection Law issued in 1989 only has one principle provision on government responsibility. The new Environmental Protection Law expands it to include a chapter on "supervision and management", strengthens supervision and management measures, grants many new regulatory powers to governments and environmental protection departments at all levels, but also provides for strict administrative accountability measures. A major breakthrough in granting new regulatory powers is to clarify the legal status of environmental supervision agencies under grassroots environmental protection departments, granting them certain enforcement powers.
The new Environmental Protection Law has also made a lot of efforts in defining and strengthening corporate environmental obligations. In response to the low cost of violating environmental laws and insufficient deterrence, the law has raised punishment standards, stipulated administrative detention, established environmental joint liability, established a credit record system, and innovatively stipulated a daily penalty system.
The new Environmental Protection Law clearly defines the right of citizens and social organizations to participate, and a special chapter stipulates information disclosure and public participation. Article 53 stipulates that citizens have the right to obtain environmental information, participate in and supervise environmental protection in accordance with the law; Article 57 stipulates how the public and social organizations participate in environmental protection supervision; Article 58 stipulates environmental public interest litigation.
Environmental public interest litigation is a major highlight of the new Environmental Protection Law
The system of major environmental public interest litigation is stipulated in Article 55 of the new Civil Procedure Law implemented in January 2013. From more than a year of practice after the implementation of the law, it can be seen that due to the overly broad and general nature of this provision, poor practical operability, and lack of corresponding judicial interpretations to refine it, environmental public interest litigation is difficult to effectively play a role. In this context, Article 58 of the new Environmental Protection Law provides clearer provisions for environmental public interest litigation, expanding the scope of environmental public interest litigation in two aspects: firstly, further clarifying the subject of environmental public interest litigation, and secondly, relaxing the scope of environmental public interest litigation. This regulation is the basic basis and foundation for constructing China's environmental public interest litigation system, and will have a profound impact on the development of environmental public interest litigation in China in the future.
In this revision, the Environmental Protection Law provides a comprehensive provision for environmental public interest litigation. In general, environmental public interest litigation can be divided into environmental civil public interest litigation and environmental administrative public interest litigation. The former has been incorporated into the civil litigation system through the provisions of the Civil Procedure Law, while the upper concept of the latter, administrative public interest litigation, is not regulated by the Administrative Procedure Law. Therefore, there are obstacles to whether environmental public interest litigation can be included in the scope of administrative litigation.
