The New changes on
Environmental Impact
Assessment of China
Haifeng DENG
School of law， Tsinghua University， China

2018.09

1.Recent system innovationsof environmental impact assessment in China

Recent system innovationsof environmental impact assessment in China• 1. Amendments to the Environmental

Protection Law of the People's Republicof China” (January 1, 2015)• The addition of Article 19 in the“Supervisory Management” section
stipulates that environmental impact
assessment must be carried out for the
preparation of planning andconstruction projects.
• The special regulation stipulates thecontent of environmental information
disclosure and public participation .
• Meanwhile, the legal liability for
violating the basic requirements ofenvironmental impact assessment isspecified in the chapter “Legal Liability”.

• 2. Amendments to the Law of thePeople's Republic of China on
Environmental Impact Assessment(September 1, 2016)• 3. Mechanism Program ofInformation Disclosure for Project
Environmental Impact Assessment(December 2015)• 4. Regulations on Environmental

Protection Management ofConstruction Projects (July 16, 2017)law and regulations3Regulations on Environmental Protection
Management of Construction Projects (July 16, 2017)• In this regulation, the more representative revisions is:
The relevant items of administrative review and approval have been
deleted but the Post-event supervision has been strengthened. Linking
up environmental impact assessment system with the emission permitsystem.

The completion and acceptance of the environmental protection
facilities of the construction project will be changed from theacceptance of the environmental protection department to the selfacceptance of the construction unit.
5. On December 25, 2017, the former Ministry of Environmental
Protection reviewed and approved the Technical Guidelines for the Eco-protection Red Line, Environmental Quality Bottom Line, Resource
Utilization and Environmental Access Negative List (Trial).
42. New change in the practices:Supervision for Environmental Protection• a Chinese major environmental protection
system innovation, with the core of
improving environmental quality.

As an important system,environmental supervision is reflectedin the phenomenon of changing the• Background: For a long time, local party
committees and governments have had
past environmental problems onlyproblems of “disregarding” on environmental looking for enterprises and theprotection responsibilities and theenvironmental responsibility only led
assessment of higher authorities has mainly by the local government leaders or thetargeted local governments and theirdirector of the Environmental
departments, neglecting the environmental
Protection Bureau,
responsibility of party committees.
so that the party committee and the• Purpose: to strengthen the bottom line ofgovernment can bear the responsibility
the conservative law and improve theof environmental management andenvironmental quality by strengthening theenvironmental governance.
main responsibility of the local government
and enterprises.The central government andprovincial governments go to local places toinspect environmental law enforcement andprevent local protectionism.

6With the continuous improvement of relevant systems and the vigorous implementation in practice,
the environmental impact assessment system is becoming more and more important in China's theoreticaland practical realms, but there are still some theoretical or practical problems. Here is just one example toillustrate.

3. Case Study

Basic facts• In October 2013, Wang Chun and others to the court of first instance statedthat the Ministry of Environmental Protection made the specificadministrative action of No. 83 “Reply on the Environmental Impact Report ofthe Project from Mengji to Chengde Section of Daguang Highway” on March23,2010. The land for the construction project in the approval involves thecollectively owned land of the Balizhuang Village where the plaintiff is located,which involves both the arable land contracted by the plaintiff and the riverarable for farmland irrigation. The river dam and the canal are also involved,
so the plaintiff has a legal interest in the specific administrative act.
• Courts think that the environmental impact assessment refers to the analysis,prediction and evaluation of the environmental impacts that may be caused
after the implementation of the construction projects, the countermeasures
should be put forward to prevent or mitigate the adverse environmental
impacts, then use some methods and systems to track and monitor.

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Basic facts• In this case, the environmental impact assessment after theimplementation of the construction project, will not be related to theland or housing related rights within the scope of the demolition orexpropriation before the construction project is implemented. The
rights and obligations of the demolition or the person being
expropriated will not be impacted.
• In view of the arable land contracted by Wang Chun, the river huts,river dams and canals used for irrigation of farmland are within thescope of land acquisition of the project involved, there is no legal
interest in the approval of the environmental impact assessment.
Accordingly, the courts ruled that Wang Chun and others’ claims
should be denied.

9• Wang Chun and others applied to the court for retrial.
• The facts and reasons for the retrial are: the approval of the environmental
impact assessment of the prosecution is an essential precondition for theapproval of the construction project, and determines whether the construction
project is approved and whether land acquisition can proceed. The approval
directly infringes on the legal rights of the applicant's land use rights, so theapplicant has a direct interest in this.

Basic facts

10Basic facts• The respondent's Ministry of Environmental Protection submitted an opinion
saying that the impact of construction projects on the legitimate rights andinterests of units and individuals is based on the environment. The
environmental impact report and its approval are for the assessment ofenvironmental impacts after the implementation of the construction project.
The scope of the environmental impact assessment is within the farthest
distance from which the construction project may have environmental
impacts, and the area outside the scope of construction project land. Units
and individuals within the scope of construction project land will be relocatedbefore the implementation of the project. The environmental impact
assessment will not consider the impact of the construction project on theunits and individuals within the scope of the project land, and will not listed
their interest as the goal of environmental protection. It will not affect therights and obligations of land use rights holders within the scope ofconstruction project land. The reason for the retrial of the claimant’s claimthat his land is within the scope of the project involved and the infringementof his land use rights is not valid.

11Verdict of Court• The court held that the legislative objectives of the environmental
impact assessment system are focused on the analysis, predictionand evaluation of the impacts on the environment after thecompletion of construction projects; the compensation for landacquisition of construction projects is generally not within the scopeof environmental impact assessment.
• Although the approval of the complaint may be a prerequisite for theestablishment, planning, and land acquisition of the construction
project, the land use rights of the land users are not the rights thatthe environmental protection department should consider and protect
according to law when making environmental assessment approvals.
If the land used by the plaintiff was levied due to the implementationof the construction project, and the corresponding compensation
behavior was not satisfied, the relevant lawsuit should be selected,
such as prosecute the collection of compensation for administrativeactions.

12Main related article• Article 11 of the Environmental Impact Assessment Law stipulates that• “In case a program may cause unfavorable environmental impacts ordirectly involve the environmental interests of the general public, theorgan that works out the special programs shall, prior to submitting
the draft of the programs for examination and approval, seek theopinions of the relevant entities, experts and the general public about
the draft of the report about the environmental impacts by holding
demonstration meetings or hearings or by any other means, except it
is provided by the state that it shall be kept confidential."

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Our findings：• From the original intention of the design of the environmental impact
assessment system, a very important purpose is to provide a
communication procedure for the expression of public opinions, so thatthe government can consider the opinions of all parties when making
decisions concerning the environment.
• 1st: “the rights that the environmental impact assessment shouldconsider” has been mentioned in the judgment but it is not clear thatwhat kind of rights should be contained. Do we need to consider therights and interests of land users within the scope of construction
projects when making environmental impact assessment approvals?
• 2nd: How to define the scope of “the environmental interests of thegeneral public” ? According to the judgment, the court thought that it
could not be involved in the environmental interest, but it seems worthyof consideration.

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Thank you