China Plans Shift in Environmental Powers

An analysis by Michael Lelyveld
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china-beijing-air-pollution-mar16-2016.jpg Pedestrians wearing face masks walk along a street in heavy smog in Beijing, March 16, 2016.

China's tightening of government controls may raise tough questions for its environmental policies and plans for reforms.

Growing resistance to the government's centralization of power surfaced dramatically last month in an open letter from "loyal Communist Party members," urging President Xi Jinping to resign.

The letter posted March 4 on the Canyu (Participation) and Wujie (Watching News) websites faulted Xi for "gathering of all power," citing problems on a broad range of political, foreign policy and economic issues.

The unnamed members charged that Xi's "excessive concentration of power" has "weakened the independent power of all state organs, including that of Premier Li Keqiang and others," according to a translation by the California-based China Digital Times.

While the criticism was comprehensive, covering subjects from the anti-corruption campaign to cultural events, it left out a key policy challenge for China—the battle against pollution—at a time when changes in government control have been planned.

In February, the official English-language China Daily reported at length on the progress and problems that the country has faced in pursuing polluters under a revised environmental law that took effect at the start of last year.

The law allowed nongovernmental organizations (NGOs) to bring civil suits against polluters and negligent authorities for the first time, theoretically reducing the pressure and the risk of retaliation against residents from business interests.

The result has been a marked increase in the volume of environmental cases, but given China's size and the sources of its pollution problems, the number of suits remains relatively small.

In 2015, China's courts heard 48 environmental public-interest cases, compared with 65 in the previous eight years, China Daily said.

The public-interest cases before environmental tribunals represent a small fraction of pollution complaints.

In the first 11 months of last year, China's courts accepted 50,331 environmental cases, including 2,595 for compensation, official media reported in December.

But legal hurdles for NGO lawsuits remain.

The new law requires NGOs to have five years of experience before they can sue. Some 700 groups have been certified, according to the Ministry of Civil Affairs, but only nine have participated in cases so far, said an environmental judge under the Supreme People's Court.

Administrative lawsuits

In three cases, prosecutors have brought administrative suits against local environmental departments, addressing a key enforcement weakness in anti-pollution laws.

Officials of local environmental protection bureaus (EPBs) often turn a blind eye to violations due to city or village business pressures, while environmental impact assessment requirements for development projects are often ignored.

Those conditions may be starting to change with shifts in the law and authority over environmental affairs.

In a precedent-setting case, a judge in southwestern Guizhou province ruled against a Jinping county EPB in January for failing to enforce water pollution laws against local factories, China Daily said.

The ruling follows a pattern of antipollution activism in the province, where China's first environmental tribunal was formed under a pilot program in 2007.

In another groundbreaking decision, the court ruled in favor of a nonprofit group seeking information from a local EPB about discharges from a dairy in 2012, state media reported at the time.

Last year, the Standing Committee of the National People's Congress (NPC) authorized a pilot program for prosecutors in 13 provinces to pursue similar suits.

The central government may now be ready to take further steps to rein in irresponsible EPBs and local agencies at city and county levels.

Under planned reforms, local monitoring and inspection bureaus will become independent, reducing their reliance on city governments, to be supervised and funded instead by provincial EPBs, according to China Daily.

"County-level monitoring and law enforcement departments will no longer be supervised by the civic environmental protection authorities and will no longer be classified as government departments," the paper said, citing Ren Yong, head of the Ministry of Environmental Protection (MEP) personnel and administration systems division.

The reforms are set to take place under pilot programs with nationwide application by 2020 under the 13th Five-Year Plan, Ren said.

China's Minister of Environmental Protection Chen Jining speaks during a National People's Congress press conference in Beijing, March 11, 2016.
China's Minister of Environmental Protection Chen Jining speaks during a National People's Congress press conference in Beijing, March 11, 2016.
Credit: AFP
Less susceptible to corruption

The combination of higher-level centralization and independence is meant to make EPBs less susceptible to local corruption. The MEP plans similar steps for agencies that provide environmental impact assessments (EIAs).

Under regulations that took effect in November, agencies that perform EIAs must cut all ties to environmental protection authorities this year and become independent commercial entities, China Daily reported separately in February.

The rule followed an anti-corruption investigation of "widespread trading of money and influence" in the EIA sector last year.

"The team found some leaders and their relatives received kickbacks for helping companies obtain easy approval during the assessment process," the paper said.

The regulatory changes suggest that China faces not one, but a series of environmental challenges. In order to clean up pollution, it must clean up corruption at various levels of industry and government, as well.

Daniel Gardner, a history professor at Smith College in Massachusetts who writes frequently on China's environment, said the central government and the MEP are on the right track.

"In my view, it is absolutely the right direction in which to go," said Gardner, who is also a senior fellow at Columbia University's Center for Sustainable Development. "The challenge for the central government will be wresting control of EPBs from local government."

"I'm trying to understand how that will be accomplished, but as a goal, it's brilliant," he said. "If the move can be implemented, it will mark a tectonic shift in environmental enforcement."

The direction of the environmental reforms may also be an exception to the abuses cited by the "loyal party members" in complaints about increasing centralization of power.

Despite decades of central government support for high-polluting industries in the past, the biggest problems for effective enforcement may now stem from lower levels and local resistance rather than central power and control.

But there may be no model in China for what the government is trying to do in creating "independent" monitoring and inspection bureaus, as well as independent commercial entities for EIAs.

These could be seen as lacking authority to carry out their tasks, while there is little assurance that commercial EIA companies will be immune from pressures to produce positive reports.

All of the eight EIA agencies previously affiliated with the MEP have already been spun off into independent companies, said Cheng Lifeng, director of the ministry's EIA department.

But will it succeed?

It is unclear whether either commercialization or centralization will succeed in curbing corruption, which has been found at all levels of environmental regulation and enforcement.

At the higher levels, MEP Vice Minister Zhang Lijun was removed from office and the Communist Party in December on charges of bribery, abuse of power and misuse of public funds.

Last year, anti-corruption investigators also found that the MEP had allowed officials and their relatives to profit from projects that required EIA approvals and let some proceed without EIAs.

Two weeks after the finding, MEP Minister Zhou Shengxian was replaced.

But the China Daily report suggests that a mix of higher government authority and local legal action is needed to advance anti-pollution enforcement, protect activists and get results.

Even with a transfer of supervisory authority to the provincial level, the powers of local EPBs may not be enough.

The paper cited an incident last September in Jinan city, capital of coastal Shandong province, where local air quality officials were attacked and prevented from inspecting a factory for emissions.

MEP Minister Chen Jining said the assailants would be punished and enforcement teams would be protected in the future, but the factory was not identified.

Jinan was repeatedly ranked among China's 10 worst cities for air quality in MEP monthly reports last year.

Last week, the Communist Party's Central Commission for Discipline Inspection (CCDI) announced an investigation of Jinan's mayor, Yang Luyu, citing "suspicion of serious violation of discipline."

In March, two subsidiaries of Hong Kong-listed China Shanshui Cement Group filed a lawsuit against Yang and a deputy mayor, alleging a conspiracy to take control of a Jinan cement plant, the South China Morning Post said.


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