Green Access Discussion Paper

DP-2015-002

Significance of China’s Newly-revised
Environmental Protection Law in 2014 andthe Provisions Pertinent to Public Participation

Wang Jin
2015/3/3

4-3-09 wangInternational Workshop on "Participation Principle Indicators
under the Environmental Law: Towards Establishing
International Collaboration in Pursuit of Environmental Justice"
at 9th-10th March 2015
Organizers: GREEN ACCESS PROJECT II “Review of Legal Indicators for theParticipation Principle in Environmental Matters - Promotion of an International Cooperation
towards Strengthening the Environmental Democracy” (JSPS Grant-in-Aid), OSAKAUNIVERSITY, PROJECT TIGER “Policy decision-making and public participation onenergy, chemicals and water management: an international comparative study” (Global
Initiative Program), and MITSUI & CO., LTD., ENVIRONMENT FUND – Project“Proposing an Asian Version of the Aarhus Convention – Constitution of anInternational Cooperation for Implementing the Environmental Justice”

GREEN ACCESS PROJECT II
Osaka University

Significance of China’s Newly-revised Environmental Protection Law in 2014
and the Provisions Pertinent to Public Participation

Presentation by Dr. Wang Jin
To the International Workshop on Participation Principle Indicators under theEnvironmental Law: Towards Establishing International Collaboration in Pursuit ofEnvironmental Justice9-10 March 2015, Osaka University, Japan

Contents
1. Introduction ................................................................................................................................. 3
2. The Establishment of Public Participation in China .............................................................. 3
3. Main Contents Relevant to “Public Participation” Clause in EPL ....................................... 9
3.1 Establishing the public’s right to be informed of environmental information, theright to participate in and supervise over environmental protection and the guarantee
duty of the government ........................................................................................................ 11
3.2 Clearly defining the scope and contents of the environmental information thatdifferent levels of governments and the competent authorities should disclose ......... 11
3.3 Clearly defining the contents of environmental information that key
pollutant-discharging units shall disclose.......................................................................... 12
3.4 Making additional provisions on public participation in environmental impact
assessment of the construction projects ........................................................................... 13
3.5 Clearly defining the report right of the public on environmental violations and its
exercise approach ................................................................................................................ 13
3.6 Explicitly stipulating that environmental protection organizations have the right tobring environmental public interest litigation .................................................................... 14
4. Problems of Public Participation in Environmental Protection .......................................... 15
5. Conclusion ................................................................................................................................ 16

2

1. Introduction
Public participation in environmental protection is an important sign ofwhether a nation values and protects the rights of the public or not. It usuallyconnects closely with political democratization. On April 24, 2014, the Standing
Committee of NPC issued the revised Environmental Protection Law（EPL）, which
entered into force on 1 February, 2015. The biggest highlight of this law is theestablishment of a special chapter named “Information Disclosure and Public
Participation” for the first time.1
This paper will explain the process of establishing the public participation
article in the EPL and its main content on the basis of reviewing the developmentof public participation principle in China. Besides, this paper will study the
problems existing in the performance of public participation in Chinese
environmental protection practice.

2. The Establishment of Public Participation in China
In China, the word of “public participation” was brought in from overseas.
Though China did not has the concept of public participation, China stipulated aprinciple of environmental protection work in Article 4 of the EPL (for trial
implementation) in 1979, that is “overall planning, rational layout, comprehensive
utilization, conversion of the harmful into the useful, and reliance upon the masses
with everybody taking part in the protection of the environment for the benefit of
the people”.
Since the researches on the democratization of polity, regime, ruling power,
etc, in the science of law and social sciences have been strictly restricted by theruling party, the laws in China did not directly copy the concepts of public
participation from the western countries. The Chinese corresponding expression
was “reliance upon the masses with everybody taking part in the protection of theenvironment for the benefit of the people”, which mainly concerned the public
participation in public-welfare environmental protection activities rather than in thework of decision-making by the government such as exploiting environmental
resources. This provision was regarded as a reflection of the democratic principle
established in the Chinese constitution. Since this guideline was too abstract to be
carried out, EPL (for trial implementation) in 1979 also made specific regulations
in Article 8 that “all citizens have the right to supervise, accuse and bring a suitagainst the unit or the individual who has caused pollution and damage to theenvironment”.
However, the researches of natural sciences on environmental management

Chapter 5 named “Information Disclosure and Public Participation” of the EPL (April 24,2014) includes 6 articles, which separately stipulate the right of the public to be informed ofenvironmental information and its safeguard mechanism, the obligation to disclose informationby the government and enterprises, supplement rules of public participation in EIA on
construction projects, the rights and process of the public to report the behaviors of polluting
and damaging the environment, environmental public interest litigation, etc.
13

didn’t have such concerns. 2 In 1983, a Chinese natural science magazine,
Underground Space, issued the translation of “A plan of public participation in the
management of radioactive waste” 3 , which introduced the concept of public
participation into the environmental protection area first through the introduction ofcooperative method between the American government and the public in theprocess of building nuclear waste storage depot in the 1980s. Thereafter, a lot of
natural science and management magazines always used the word “public
participation” when introducing foreign environmental impact assessment (EIA).4
In the early 1990s, in view of the deepening of Chinese reform andopening-up and the increasing of the proportion of foreign investment year by year,
using the loan from international financial organizations to raise construction fundand develop the economy had been an important part of Chinese economic
development. One of the clear requirements in the environmental protection of
construction projects supported by the loans offered by these international
financial organizations, such as World Bank and Asia Development Bank, was the
EIA Statement of loan projects, which was regarded as one of the necessary
documents in handling loan formalities. However, the work of EIA needed public
participation. As a result, in June 1993, the former State Environmental Protection
Administration, the former State Planning Commission, the Ministry of Financeand the People’s Bank of China jointly issued the Notice of Enhancing theManagement Work of Environmental Impact Assessment on the Construction
Project that are Loaned by International Financial Organizations, which required
public participation in the process of EIA on the construction project that wereloaned by international financial organizations, and “the establishment of a special
chapter to express in the EIA Statement, in order to consider and compensate theinterests of the potentially concerned public and social organizations. The work of
public participation could be in the stage of preparing and reviewing of the Study
Plan and the reviewing of the Statement”. This was the first time that Chinese
government put the word of "public participation" into government documents.
However, the Notice defined “the public” who have the right to propose
opinions and suggestions as “NPC deputies, CPPCC members, massgroups, academic groups or the representatives of neighborhood committees
and village committees at the place (district or county) where loan projects arelocated”, and it was the “NPC deputies, CPPCC members and mass groups at theplace (district or county) where loan projects are located that consult the public’s
opinions whose interest will be affected” 5. That was to say, the public whose2

Since 1950s, there has been the introduction about the concept of public participation in thearticles about western countries’ political institutions. For example, the article named “TheAthenian Constitution” wrote by H·Rackham in 1935 and translated by Liye and Rizhi andpublished in No.2 of Journal of Northeast Normal University in 1957 is such a case.
3 See Katherine Montague, Peter Montague, Wang Ping translated, A plan of public
participation in the management of radioactive waste, Underground Space, No. 5, 1983.
4 Such as the translation of “A brief talk of EIA” translated and edited by Qu Li published in
Environmental Protection of Xinjiang, No.2, 1985, and the paper named “EIA of resource plans”
wrote by Xi Zhilong and Liu Zhiwan published in World Environment, No.2, 1985.
5 See the Notice of Enhancing the Management Work of Environmental Impact Assessmenton the Construction Project that are Loaned by International Financial Organizations, which
was jointly issued by State Environmental Protection Administration, State Planning
Commission, Ministry of Finance and the people’s Bank of China on June 21, 1993.
4

interest was substantively affected were not entitled to give advice to constructors
who were directly involved in the loan projects. On the contrary, only when
officially recognized institutions and representatives solicited opinions from thepublic in the affected areas, could the public put forward opinions andsuggestions.6
Before that, there was no such a saying as “public participation” in Chinese
authorities’ decision-making activities. However, there was a similar formulation to
public participation, that is, “the principle of democratic centralism” proposed after
the
CPC
came
into
power.
Democratic centralism is a system that “integrates centralism on
the basis of democracywith democracy under theguidanceof
7
centralism”. Different from western constitutional theory of “separation of thethree powers”, the CPC establishes the principle of united power and democratic
centralism
by theConstitution. This principle
wascreated by
ParisCommune and concreted in later socialist national political systems. It istheoretically confirmed that state power cannot be separated. People’s
representative organs exercise state power in a unified way in practice, and theprinciple of democratic centralism is used as a power balance mechanism.
Article 2 of Constitution in 1954 stipulated that “National People’s Congress,
the local people’s congresses and other organs of state practice democratic
centralism.” Article 17 of the same law stipulated that “All organs of state must relyon the masses of the people, constantly maintain close contact with them, heed
their opinions and accept their supervision.”
Article 17 in Constitution was revised in 1978 as “The state upholds
democratic principles of socialism, guarantees people to participate in the
management of state, various economic and cultural establishments, andsupervises state organs and staffs.” Article 2 in Constitution was then revised in1982 as “The people administer state affairs and manage economic, cultural andsocial affairs through various channels and in various ways in accordance with thelaw.”
Although the Constitution made the above-mentioned principle provisions,
there was no explicit legal stipulations in China about the specific methods of how
people administer the nation and conduct supervision over state personnel.
Considering that the power to supervise over environmental illegal activities was
one of the functions and powers by environmental administrative authorities,
Article 6 in the EPL revised in 1989 stipulated that “All units and individuals shallhave the obligation to protect the environment and shall have the right to report onor file charges against units or individuals that cause pollution or damage to theenvironment.”
The way of public participation in the passage is dubbed “being represented” in China today,
which means representatives designated by official institutions only solicit public opinions inaccordance with official rules and declare that they are people’s representatives in public.
However, what opinions and suggestions these representatives on earth report to theofficial agency in the end is unknown to the public. What’s worse, sometimes representatives
may falsify public opinion from “cons” to “pros”.
7 This passage was proposed by Mao Zedong in his report during the Meeting of the Seventh
National Congress of the Communist Party of China on April 24, 1945, which was thenregarded as the basic meaning of “democratic centralism”.
65

In this context, the concept of “public participation” initiated by the westerncountries was actually replaced by the notion of “democratic centralism” putforward by China’s ruling party, practically reflected in the running process of theregime established by the Constitution and laws, and was firmly in control of publicauthorities. Therefore, it is not difficult to understand why the subject of public
participation was limited to “NPC deputies, CPPCC members, massgroups, academic groups or the representatives of neighborhood committees
and village committees” in the Notice of Enhancing the Management Work ofEnvironmental Impact Assessment on the Construction Project that are Loaned byInternational Financial Organizations in 1993.
In July 1996, the State Council held the fourth National Conference on
Environmental Protection. The conference mainly deployed the objectives, tasks
and measures for environmental protection work of the 21st century, and passed
the Decision on Several Issues Concerning Environmental Protection (releasedon August 3 the same year). In the tenth part of the Decision by the State Council
named “strengthening publicity and education, raising public awareness of theenvironment”, it was the first time to put forward “to establish the mechanism for
public participation, to play the role of social organizations, to encourage public
participation in environmental protection work, and to report and expose all kindsof violations of environmental laws and regulations”.
In order to generalize the experience of environmental impact evaluation andpublic participation carried out in construction projects loaned by international
financial organizations since 1993, Clause 4 of Article 13 in Water Pollution
Prevention and Control Law revised in 1996 and passed by theStanding Committee of the National People’s Congress on May 15 the same year
stated: “An environmental impact statement shall contain comments andsuggestions of the units and residents in the place where the construction
project is located.” The exactly same provision could also be seen in Clause 3 ofArticle 13 in Law on Prevention and Control of Pollution From Environmental
Noise enacted by the Standing Committee of the National People’s Congress on
October 29, 1993. These provisions on public participation in EIA were laterreflected in Article 15 of an administrative regulation named Regulations on the
Administration of Construction Project Environmental Protection passed by theState Council on November 18, 1998, which stipulated, “When compiling theenvironmental impact statement, the construction unit shall seek for comments
and suggestions of the units and residents in the place where the construction
project is located in accordance with relevant laws and regulations.”
Since then, the principle of public participation in environmental protection
was officially established in China. However, different from the method of public
participation in EIA implemented in foreign countries, Chinese EIA system relies
mainly on the environmental protection department approving the environmental
impact statement of construction projects. If there is only declaratory provisions
without substantive procedural arrangements in the law, the public still cannot
participate in the decision-making activities of EIA by the environmental protection
department.
In April 2000, Chairman Li Peng of the NPC Standing Committee at that time6

made a speech requiring to enact the Law on Assessment of Environment
Impacts 8 , which was adopted by the NPC Standing Committee in October
2002 and went into effect on September 1, 2003. Provisions on public
participation in the law are as follows:
Article 5

The state encourages relevant entities, experts and the generalpublic to participate in the assessment of the environmental impacts in appropriate
ways.
Article 11

In case a planning may cause unfavorable environmental impacts

or directly involve the environmental interests of the general public, 9the organthat works out the special planning shall, prior to submitting the draft of the planningfor examination and approval, seek the opinions of the relevant entities, experts andthe general public about the draft of the statement about the environmental impacts
by holding demonstration meetings or hearings or by any other means, except it isprovided by the state that it shall be kept confidential.
The drafting organ shall take the opinions of the relevant entities, experts andthe general public about the draft statement of environmental impacts into carefulconsideration, and shall attach a remark whether the opinions are adopted or
refused to the statement of environmental impacts to be submitted for examination
and approval.
Article 21

Unless it is provided by the state that it is necessary to keep

confidential, forthe construction

projects

which may

impose significant

environmental impacts and for which it is necessary to work out a statement ofenvironmental impacts, the construction entity shall, before submitting theconstruction project for examination and approval, seek the opinions of relevant
entities, experts and the general public by holding demonstration meetings,
hearings or by any other means.
The statement of environmental impacts submitted by the construction entity
for examination and approval shall include an explanation of why the opinions of
relevant entities, experts and the general public is accepted or rejected.

At the same time, the NPC passed the Administrative License Law in August
2003 (going into effect on July 1, 2004), and provisions about the principle ofpublic access to government information and detailed rules for hearings during theimplementation of administrative license by the administrative organs in the law
are as follows:
Article 5

The principle of publicity, fairness and impartiality shall be abided byin the establishment and implementation of an administrative license.
The relevant regulations on an administrative license shall be announced to the
public; those undisclosed shall not be the basis for the implementation of theadministrative license. The implementation of the administrative license and theresults thereof, except for those that concern the state secrets, commercial secrets

8

See the bill on Law of the People’s Republic of China on Assessment of Environment
Impacts (Draft), which was proposed by NPC Environmental and Resources Protection
Committee on November 29, 2000.
9 According to the legislative information, “the environmental interests of the general public”
replaced “the interests of the general public” in the draft articles of Law of the People's
Republic of China on Assessment of Environment Impacts, due to the oversizing of the scopeand lack of clarity of the interests of the general public.
7

or individual privacy, shall be disclosed.
The applicants who meet the legal conditions and standards are entitled toobtain the equal right under an administrative license, the administrative organs
shall not discriminate against any of them.
Article 46

For a hearing as provided for the implementation of administrative

license in any law, regulation or rule, or for any other licensing matters of great
importance to the public interests that the administrative organ considers it
necessary to hold a hearing, the administrative organ shall announce it to the publicand hold a hearing.
Article 47

Where an administrative license is of direct significance to theinterests of the applicant or others, before the administrative organ makes adecision about the administrative license, it shall inform the applicant or theinterested party of the right to request for a hearing. Where the applicant orinterested party applies for a hearing within 5 days from the day when it is informedof such right, the administrative organ shall organize a hearing within 20 days.
The applicant and interested party shall not pay for the expenses arising fromthe administrative organ’s organization of the hearing.

The Law on Assessment of Environment Impacts implemented in 2003 andthe Administrative License Law implemented in 2004 marked the arrival of the
public participating in all aspects and periods of environmental protection in
China.10
In February 2006, the former State Environmental Protection Administration
issued the Interim Measures on Public Participation in Environmental Impact
Besides, the Law of the People’s Republic of China on Promoting Clean Production enacted
by the Standing Committee of the National People’s Congress in 2002 and amended in 2012
prescribes as follow:
Clause 2 of Article 6 The state encourages social organizations and the general public toparticipate in cleaner production publicity, education, promotion, implementation, andsupervision.
Article 17 The general coordination department for cleaner production and the environmental
protection department of the people’s government of a province, autonomous region, ormunicipality directly under the Central Government shall, as needed for cleaner production
promotion, publish a list of enterprises which fail to reach the energy consumption control
indicators or the major pollutant discharge control indicators on local major media to provide abasis for the general public to oversee the implementation of cleaner production by enterprises.
Enterprises on the list mentioned in the preceding paragraph shall disclose information on theirenergy consumption or generation and discharge of major pollutants as required by thegeneral coordination department for cleaner production and the environmental protection
department of the State Council to receive oversight by the general public.
Clause 4 of Article 27 An enterprise subject to compulsory cleaner production examination
shall report the examination results to the general coordination department for cleaner
production and the environmental protection department of the local people’s government at or
above the county level and disclose the examination results on local major media to receive
oversight by the general public, except where trade secrets are involved.
The Circular Economy Promotion Law of the People’s Republic of China enacted by theStanding Committee of the National People’s Congress in 2008 prescribes as follow:
Article 3 Developing circular economy is an important strategy for the economic and social
development of the state. It requires making overall plans, making reasonable layouts,
adjusting measures to local conditions and focusing on actual effect. The development of acircular economy shall be propelled by the government, led by the market, effected byenterprises and participated in by the public.
Clause 1 of Article 17 The state shall set up a circular economy statistical system, strengthen
the statistical management of resource consumption, comprehensive utilization and waste
production, and publish the major statistical indicators to the public on a regular basis.
108Assessment, in which the disclosure of environmental information by theconstruction unit, seeking for public comments on the environmental impact
statement, the organizational form of public participation, the method of public
participation in EIA of planning and the technical specifications of the public
participation in EIA were stipulated.
In January 2007, the State Council passed the Regulation on the Disclosureof Government Information, which laid the foundation for citizens, legal persons
and other organizations obtaining government information in accordance with thelaw; in February the same year, the former State Environmental Protection
Administration (SEPA, now the Ministry of Environmental Protection, MEP) issued
the Measures for the Disclosure of Environmental Information (for Trial
Implementation), which for the first time provided the range of government andenterprise environmental information that should be disclosed, the methods andprocedures of disclosing these information.
China’s newly-revised EPL was enacted on April 24, 2014. The law adheresto public participation as the basic principle of China’s environmental protection
cause. In addition, a specialized chapter “Information Disclosure and Public
Participation” was established hereby to stipulate for guaranteeing the rights ofpublic participation, information disclosure mechanism, the contents which thegovernment and enterprises make known to public, full disclosure of the EIA
statement and judicial relief.
Apart from legal documents enacted by the state and central government,
some local authorities such as Shanxi Province, Shenyang and Kunming havealso formulated local regulations of public participation in environmental protection
since 2005. On December 2014, the Standing Committee of People’s Congress in
Hebei Province also adopted the local regulation Ordinance on Public
Participation in Environmental Protection in Hebei Province.
At present, the Chinese government is ready to accede to the Aarhus
Convention, the primary work of which is to analyze, and demonstrate the pros
and cons after China’s accidence.

3. Main Contents Relevant to “Public Participation” Clause in
EPL
It is the first time that “public participation” is treated as one of the basic
principles of environmental protection by the newly-revised EPL, which, in theform of legislation, makes the following provisions in Article 5: “Environmental
protection shall adhere to the principles of giving priority to protection, focusing on
prevention, conducting comprehensive treatment, engaging the general public inprotecting the environment, and enforcing accountability for damage.”
However, there were no provisions about public participation principle and a
specialized chapter of “Information Disclosure and Public Participation” other thansubjoining a new article about disclosing environmental information in The First
Review of Draft Amendment of EPL, which was deliberated by the Standing
Committee of National People’s Congress in September 2012. Considering this,9the NPC Standing Committee proposed that environmental protection needed thewhole society’s participation and an orderly public participation mechanisms
should be established.
Through the research, the Law Committee of National People’s Congress
recommended adding terms of the principle of public participation to The Second
Review of Draft Amendment of EPL, and formulated the disclosure ofenvironmental information and public participation as a special chapter:
First, defining the public’s rights to know, to participate and to supervise,
stipulating that citizens, legal persons, and other organizations shall, according to
the law, have the rights to obtain environmental information and participate in andoversee environmental protection. The environmental protection administrative
department and other departments with environmental protection supervision andadministration functions of the people’s governments at all levels shall, according
to the law, disclose environmental information, and improve the procedures for
public participation, to facilitate the participation in and oversight of environmental
protection by citizens, legal persons, and other organizations.
Second, explicating that key pollutant-discharging units should take theinitiative to disclose environmental information including the names of their major
pollutants, the discharge methods, the concentration and total volume ofpollutants discharged, and any discharge beyond the approved quota. And
corresponding legal responsibilities are stipulated.
Third, improving the public participation of EIA in construction projects. For aconstruction project for which an environmental impact statement is required by
the law, when preparing such a EIA statement, the construction employer shallprovide an explanation for the public that may be affected, and fully solicit theiropinions. After receiving the environmental impact statement for a construction
project, the department approving the environmental impact assessment
documents for construction projects shall disclose the full text of the statement,
except for the part involving any state secret or trade secret; and if it discovers thatpublic opinions have not been fully solicited regarding the project, the department
shall order the construction employer to solicit public opinions.11
Compared with the public participation in environmental protection provisionsof Aarhus Convention, the newly-revised EPL specifically provides the right of the
public to obtain environmental information and participate in environmental
decision-making. As for the public’s right to appeal, legally recognized socialorganizations may initiate environmental public interest litigation and theprovisions of the Administrative Procedure Law also endue the public judicial
protection.
Hereafter, I will give a brief introduction on the public participation systemestablished by the EPL.

See Chen Liping, “Key pollutant-discharging units discloses environmental information”,
accessed at the website of National People’s Congress,
http://www.npc.gov.cn/npc/xinwen/lfgz/2013-06/27/content_1798711.htm on February 8, 2015.
1110

3.1 Establishing the public’s right to be informed of environmental
information, the right to participate in and supervise over environmental
protection and the guarantee duty of the government
Article 53

Citizens, legal persons and other organizations shall be entitled to accessenvironmental information, and participate in, and supervise, environmental protection inaccordance with the law.
The competent departments for environmental protection and other departments with
duties for supervision and administration over environmental protection of the people’s
governments at all levels shall disclose environmental information pursuant to the law, improve
the public participation process, and provide facilitation to the citizens, legal persons and otherorganizations for their participation in, and supervision over, environmental protection.

This Article makes a general definition of the scope of the public, that is,“citizens, legal persons and other organizations” 12 . In addition, the term“environmental information” in this Article and the corresponding provision in Term
3, Article 2 of the Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters (Aarhus
Convention, passed in 1998) share the same meaning.
In May 2014, the MEP published the Guidance on Promoting Public
Participation in Environmental Protection, and put forward the primary missions,priority areas, and safeguard measures on promoting public participation inenvironmental protection. Currently, the MEP accelerates drawing up the Rules on
Public Participation in Environmental Protection, as the detailed rules of the EPL,
so as to further detail the content and procedure of public participation.
In order to protect the public right to be informed of the open government
information, Supreme People’s Court (SPC) proclaimed the Provisions of theSupreme People’s Court on Several Issues Concerning the Trial of Administrative
Cases about Government Information Disclosure, which requires that People’s
Courts shall accept such a lawsuit where anyone deems that specificadministrative acts related to government information disclosure has infringed
upon the legal rights and interests.

3.2 Clearly defining the scope and contents of the environmental
information that different levels of governments and the competentauthorities should disclose
Article 54

The competent department for environmental protection of the StateCouncil shall uniformly release national environmental quality information, informationon the monitoring of major pollution sources and other material environmental
information. Competent departments for environmental protection of the people’s
governments at or above the provincial level shall regularly publish press
communiqués on environmental conditions.
The competent departments for environmental protection and other departmentswith duties for supervision and administration over environmental protection of thepeople’s governments at or above the county level shall disclose information on
In legal documents in China, “other organizations” generally refers to the organizations,which are legally constituted, with a certain degree of organization and property, but not
qualified as legal person personality. The author notes.
1211environmental

quality,environment

monitoring,

environmental

emergencies,

environmental administrative licensing, administrative punishments, the collection
and use of pollutant discharge fees and other relevant information.
The competent departments for environmental protection and other departmentswith duties for supervision and administration over environmental protection of thelocal people’s governments at or above the county level shall record the informationon the environment-related violations of laws committed by any enterprises, public
institutions and other producers and business operators in the social credit archives
and make the list of violators public in a timely manner.
Article 68

Where any of the local people’s governments at all levels and thecompetent departments for environmental protection and other departments with
duties for supervision and administration over environmental protection of thepeople’s governments at or above the county level commits any of the following acts,
the persons in charge thereof who are directly responsible and other personnel
thereof who are directly liable shall be given a demerit, a serious demerit or be
demoted; where grave consequences are caused, the foregoing persons shall be
removed from office or be dismissed, and the primary persons in charge of therelevant departments shall resign from office:…
(7) Where it fails to disclose environmental information that should be disclosed
in accordance with the law;…

In February 2007, the former SEPA (MEP) released the Measures for theDisclosure of Environmental Information (for Trial Implementation), which detailed
the scope, methods and procedures of the disclosure of information. However,compared with the environmental protection department, other departments
responsible for the supervision and administration of environmental protection
made few regulations in the area of environmental information disclosure.

3.3 Clearly defining the contents of environmental information that key
pollutant-discharging units shall disclose
Article 55

A key pollutant-discharging unit shall make public the names of its major

pollutants, the ways of emission, the emission concentration and total volume,
whether the emission exceeds relevant limits, as well as the construction andoperation of pollution prevention and control facilities and accept social supervision.
Article 62

Where a key pollutant-discharging unit, in violation of this Law, fails todisclose or fails to truthfully disclose environment information, the competentdepartment for environmental protection of the local people’s government at or above
the county level shall order it make the disclosure, impose a fine on it and make anannouncement thereof.

In December 2014, the MEP released the Measures for the Disclosure ofEnvironmental Information by Enterprises and Public Institutions, and clarified thespecific scope and methods of the information that key pollutant-discharging units
shall make public.

12

3.4 Making additional provisions on public participation in environmental
impact assessment of the construction projects
Article 56

The project unit of a construction project for which an environmental

impact statement is required pursuant to the law shall explain relevant situations to
the public when preparing the environmental impact statement, and solicit public
opinions sufficiently.
Competent departments for examination and approval of the environmental
impact assessment documents for construction projects shall make public the full textof the environmental impact statements of construction projects upon receipt thereof,
except for matters involving state secrets and commercial secrets. Where they
discover that public opinions have not been sufficiently solicited for certain
construction projects, they shall order the project owners concerned to solicit public
opinions.

As mentioned before, the Law on Assessment of Environment Impacts
adopted by National People’s Congress (NPC) in 2002 has made principle rules ofpublic participation in environmental impact assessment regulations. However,with no specific rules on how the public participates and on how the information
keeps open, the failure of newly-built enterprises to ask for public comments intheir EIA has occurred in practice, which leads to a larger occurrence ofenvironmental group dispute incident. For this reason, on the basis of the Law on
Assessment of Environment Impacts, the newly –revised EPL stipulates that at
the time of the preparation of the environmental impact statement, the report shallbe open to public comment, and that before environmental impact statement isapproved, the statement should also be fully disclosed.

3.5 Clearly defining the report right of the public on environmental
violations and its exercise approach
Article 57

Citizens, legal persons and other organizations shall be entitled to reportand complain against entities and individuals that cause environmental pollution andecological damage to the competent departments for environmental protection orother departments with duties for supervision and administration over environmental
protection.
Citizens, legal persons and other organizations that discover the failure of certain
local people’s governments at any level or any of the competent departments forenvironmental protection and other departments with duties for supervision andadministration over environmental protection of the people’s governments at or above
the county level to perform environmental supervision and administration duties inaccordance with the law, may report the situations to the authorities at higher level orsupervisory authorities.
The departments receiving the reporting shall keep confidential the relevant
information of the reporters and protect the legitimate rights and interests of thereporters.

In the newly-revised EPL, the “prosecution” and “sue” 13provisions of the
In Chinese law, the term “prosecution” and “sue” particularly refers to the right of the public
to report crime to the public security organ, the procuratorial organ and other organs in criminal
law. Administrative legislation for environmental violations using the words is not appropriate.
13

13

public on the environmental violations in other environmental laws in the past arerevised to a more workable method, namely “report”, so that the public’s right toreport environmental violations to the environmental protection departments iseasier to be fulfilled .

3.6 Explicitly stipulating that environmental protection organizations
have the right to bring environmental public interest litigation
Article 58

Any of the social organizations satisfying the following conditions may filelawsuits with the people’s courts against acts that pollute the environment, cause
ecological damage and harm public interests:(1) Registered with the civil affairs department of the people’s government at or
above the level of city with districts in accordance with the law; and(2) Engaging specially in the public service activities in environmental protection
for five consecutive years without any record of violation of laws.
Where a social organization satisfying the provisions in the preceding paragraphfiles a lawsuit with the people’s court, the people’s court shall accept the lawsuit inaccordance with the law.
The social organization that files a lawsuit shall not make use of the lawsuit toseek economic benefits.

To guarantee community organizations to bring environmental public interest
litigation to the court, the Supreme People’s Court, Ministry of Civil Affairs, MEP
jointly issued the Notice on Implementing the Environmental Civil Public Interest
Litigation System on December 26, 2014, making provisions on the coordinationof the executive power and the judicial power on environmental civil public interest
litigation. The Supreme People’s Court released and implemented theInterpretation of the Supreme People’s Court on Several Questions on the
Application of Law in Trial of Environmental Civil Public Interest Litigation Cases
on January 7, 2015, making provisions on what community organizations canbring environmental civil public interest litigation, on that the jurisdiction of theenvironmental civil public interest litigation cases can cross administrative
divisions, on what evidential materials in public interest litigation is applicable inprivate litigation of the same action on pollution of the environment, on how to
reduce the litigation cost burden of the plaintiff and so on. The Supreme People’s
Court released and implemented the Interpretation I of the Supreme People’s
Court on Several Issues concerning the Application of the Civil Procedure Law of
the People’s Republic of China on January 30, 2015, making specific provisions
on the court how to accept public interest litigation cases. On February 9, 2015,
the Supreme People’s Court issued the Interpretation of the Supreme People’s
Court on Several Issues concerning the Application of Law in the Trial ofEnvironmental Tort Cases (not yet released and implemented).
In summary, in accordance with the provisions of existing laws andregulations, the main areas of public participation in environmental protection in
China are as the following:
Formulating local regulations and local government regulations onenvironmental protection; formulating local regulations and local government
The author notes.
14regulations on ecological environmental protection; formulating the exploitation
and utilization planning which may have adverse impact on the environment;
formulating the economic and technological policies which may have adverse
impact on the environment; defining or adjusting the scope of nature reserve or
ecological function region; formulating or modifying environmental standard,defining or adjusting the scope of environmental function zone; compiling or
approving and reviewing the environmental impact assessment documents of theplanning or construction projects; accepting environmental protection facilities
when the construction projects completed; key industrial pollution control andecological management; major cases on environmental administrative penalties;
dealing with environmental pollution and ecological damage events which may
harm the legitimate interests of the public and other environmental public interest;
administrative mediation of environmental disputes; oversight of environmental
violations;suggestions
onenvironmental
protection
torelevant government departments;
environmental public interest litigation; other matters stipulated by laws, regulati
ons or rules.

4.

ProblemsofPublicParticipationinEnvironmental

Protection
In recent years, the public participation in environmental protection in China isincreasing, and environmental NGOs have made certain achievements both inquality and quantity. However, multiple group events caused by environmental
problems and NIMBY movements are on the rise, showing that there still exist
many problems of public participation in environmental protection.
First, the compulsory provisions imposing on the government and its
departments in national laws and regulations are neither practical nor operational,
which fall behind the new development since the adoption of the EPL in 2014.
Local laws and regulations also do not include the detail procedures and relief
provisions concerning public participation in environmental protection. By
examining the environmental group events recently happened in Kunming,
Hangzhou and other places, laws and local regulations on public participation inenvironmental protection were seldom applied in practice. The phenomenon of
infringement on public environmental rights and interests is still happening.
Second, the laws and regulations authorize the environmental protection
department many obligations and responsibilities, while many key powers
involving environmental impact, such as the planning of development andutilization of environmental resources and examination and approval of major
projects, are belonged to other departments, not the environmental protection
department. What makes worse, these authorities refuse to disclose
decision-making information which affect the environment, regarding them as
non-environmental information.
In addition, the information the public really concerned is not consistent withthat government/department disclose. The range of public participation is limited,15

only confined to powers of environmental protection department. The authorities
cannot respond to public opinions quickly and completely, which means thegovernment does not always pursue environmental violations of enterprises.
Third, the public participation is mechanical and simplified, and deceptive EIA
phenomenon is involved, which take the following forms: few scientific andeffective participation methods, few selective methods to choose; the participants
are artificially arranged, inadequacy in interest representative; serious fraud
happened in EIA statement and other documents.
What’s more, because of public participation in environmental protection may
hinder the investment in construction projects which may pollute the environment,
and injure the interest of environmental protection departments when reviewing
previous environmental decisions, local governments and environmental
protection departments hold a negative attitude towards public participation inpractice, taking various reasons to refuse to disclose environmental information,or acting in a perfunctory manner.
Fourth, there are still a lack of relief and security provisions in laws andadministrative regulations. There are no specific ways for the public to report,
appeal and bring problems; normal public gatherings and demonstrations are notapproved, thus leading to abnormal walk; public-expressed dissatisfaction aretreated roughly and simply, and more serious political inclination arises;
deficiencies in administrative litigation and the system of environmental public
interest litigation still exist.
Referring to judicial protection, the local people’s court refusing to accept theenvironmental public interest litigation is still a major problem to guarantee public
participation in environmental protection.

5. Conclusion
The EPL revised in 2014 has made great progress in the disclosure ofenvironmental information and public participation. The provisions not only
establish that the public has right to acquire environmental information from thegovernment and enterprises, to participate in the government environmental
administrative decision-making and supervise the government and enterprises tocomply with environmental laws, but also set up the environmental public interest
litigation system.
However, due to China’s long-term lack of public participation on cultural,political and legal basis, relying on the public participation provisions in theenvironmental laws cannot wholly guarantee the public environmental rights andinterests, which can only be achieved through a comprehensive legal systemarrangement in the process of the political system reform.

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