U.S. Lessons Help Inform Chinese Policies to Improve Air Quality

As I stepped off the plane in Beijing, I immediately recognized the environmental challenges facing China today. The air quality during our visit ranged at times between “very unhealthy” and “hazardous”; at its worst, we could not see the tops of buildings in downtown Beijing shrouded in smog. We are reminded that many years ago we faced similar challenges in some cities in the U.S., before we took a comprehensive approach to environmental protection.

My colleague Steve Wolfson and I traveled to Beijing as part of the 19th Annual U.S.-China Legal Exchange sponsored by the U.S. Department of Commerce, January 13-15, 2015. Our task was to address legal tools for improving air quality, and the importance of transparency and public participation in implementing and enforcing environmental laws.

Drawing on our experience in the U.S., we highlighted how environmental protection need not come at the expense of economic growth — and indeed how environmental policies can be a driver for a healthy and sustainable economy. And we emphasized the critical need for public access to clear and accurate environmental data, as well as public access to a fair and even-handed court system, as pillars of sound environmental governance.

The response we got back was resounding. During our trip we met with our counterparts from the Chinese Ministry of Environmental Protection, as well as the National Development and Reform Commission, Ministry of Commerce, Supreme People’s Court, and other government agencies. We also engaged in lively discussions with representatives of several of China’s leading universities and non-governmental organizations (NGOs), as well as with the U.S. business community. In every forum we heard common themes: the urgent need for China to continue to develop an effective environmental law regime, and the critical importance of effective implementation and enforcement mechanisms, all in support of a strong desire by China to maximize its efforts to tackle its pressing environmental challenges and embark on a sustainable path that integrates economic growth, environmental protection, and public health. We also witnessed a genuine eagerness to draw lessons from the successes that the U.S. and other countries have achieved implementing environmental laws that have significantly reduced pollution levels.

These issues were particularly timely as China is in the process of reforming and improving its environmental legal framework. The revisions to China’s framework Environmental Protection Law (EPL) enacted in April 2014 and taking effect on January 1, 2015, constitute one important milestone in this legal reform effort. A key provision of the revised EPL authorizes registered social organizations to bring environmental lawsuits in the public interest against polluters, potentially opening the door for civil society organizations to play a crucial role in addressing China’s environmental challenges.

The Chinese government recently issued interpretive guidance on implementation of these provisions, clarifying how to handle these cases and providing important encouragement for courts to accept more of them. Already there are signs that Chinese NGOs and courts are employing this new legal tool. This month an environmental public interest lawsuit filed by Chinese NGOs Friends of Nature and Fujian Green Home was accepted for consideration by the court in Fujian Province. During our visit we heard about additional NGO cases soon to be filed. The environmental community in China hopes that these provisions will help leverage the growing anti-pollution sentiment in China’s civil society to supplement governmental efforts to control pollution.

This provision is not the only important legal reform. Additional provisions are designed to enhance environmental accountability in China, including requirements for public disclosure of pollutant releases, enhanced penalties for violations of environmental laws, and strengthened mechanisms for holding government officials responsible for achieving environmental objectives. The hope is that legal reform will help develop a system of sound environmental governance, including widespread public access to environmental data, stakeholder engagement in decision-making, and multiple channels of accountability, including access to fair and transparent dispute resolution mechanisms.

China’s air pollution problems have triggered substantial efforts to improve laws and regulations in order to control emissions, an effort which EPA has worked to assist. Improving environmental governance in China can help move towards a level playing field for U.S. businesses competing with Chinese firms, including those who are doing business in China. For these reasons, cooperation on environmental law and governance is a key part of EPA’s overall cooperative engagement with China.

At every turn, I was impressed with the dedication, thoughtfulness, and energy of China’s environmental experts, particularly our counterparts in the Law and Policy Department of their Ministry of Environmental Protection, as well as their openness and genuine desire for information on successful cost-effective strategies for pollution prevention and control. Fortified with first-hand knowledge of the many inspiring individuals we met, and with blue skies dramatically appearing on the last day or our trip, we left China with a sense of hope for this critically important undertaking.

About the author: Ethan G. Shenkman is EPA’s Deputy General Counsel. He was previously with the US Department of Justice, Environment and Natural Resources Division (ENRD), where he served as Deputy
Assistant Attorney General from 2010 until May 2014.

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