Car Restricting: A Trade-Off between Property Rights and Environmental Protection Georgetown International Environmental Law Review

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Car Restricting: A Trade-Off between Property Rights and Environmental Protection

By Ye Ruby Hong, Staff Contributor

“Beijing is barely suitable for living,” wrote the mayor of Beijing  in an official report. The poor air quality has become the most serious environmental problem of Beijing. Celebrities ask the government to act upon the problem and hope for more blue skies on Chinese Twitter. Foreigners are worried that they will not be able to breathe the moment they step out of the plane.

Although the Beijing government has made great efforts to improve the air quality for the past 16 years, during October 2014, Beijing’s smog lasted for 10 days. On October 19, 2014, when the Beijing Marathon took place, Beijing’s Air Quality Index, which measures micrograms per cubic meter of fine particulate matter, was 400, well above the 300 “hazardous” threshold.

Three weeks later, surprisingly, Beijing had a week of blue skies with the Air Quality Index around 81, which suggests the air pollution was not causing harm to the public. That week was when the Chinese government hosted the 22nd Asia-Pacific Economic Cooperation (APEC) Leaders’ Meeting. The Chinese people called those seven days of unbelievably clean air and blue skies “APEC Blue.”

The Chinese government used various measures to create “APEC Blue.” First, Beijing implemented an odd-even road space rationing policy. Under this policy, privately-owned automobiles, excluding taxis and military vehicles, with an even last number on their license plate, were allowed to drive on one day, while the next day the cars with an odd last number could be on the road. This policy reduced private cars on the road in Beijing by 35%, and reduced pollutants in the air by around 50%.  The odd-even car restricting policy was the most effective measure to create “APEC Blue.” The second policy was shutting down the factories located in Beijing’s suburbs. 69 factories were shut down completely during the 7 days of the APEC meeting, while 72 factories were required to limit their operations.

“APEC Blue” did not last long unfortunately. The major pollutants increased by more than 80% after the APEC meeting, when the two policies of restricting cars and shutting down factories ended. The effectiveness of the car restricting policy led to suggestions of continuing the odd-even road rationing policy.

On November 26, 2014, the Deputy Mayor of Beijing expressed publicly that he would consider the idea of using odd-even road space rationing policy as a long-term rule rather than an emergency resolution against severe air pollution in Beijing. This announcement stirred a heated debate in China about whether such a rule could be legitimate.

Professor Lijia Zhu from the Chinese Academy of Governance supports the view that such a rule is legitimate. According to Professor Zhu, the government is the institution that regulates and coordinates public resources comprehensively. The government “is authorized to reasonably distribute public resources based on the practical situation and the relevant law.” While the ownership of vehicles is private, Professor Zhu opines, the roads belong to the public, and should be considered as one kind of public resource, thus can be regulated and coordinated by the government legitimately.

Professor Xiang Zhang from Renmin University of China Law School strongly disagrees and argues that such a rule is unconstitutional. “The State, in accordance with law, protects the rights of citizens to private property and to its inheritance.”[1] “The State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and make compensation for the private property expropriated or requisitioned.”[2] Though the vehicles cannot be used for half of the time and thus their value cannot be realized under such a rule, people have to pay expenses and taxes fully for the vehicles and incur losses resulted from the vehicles’ wear and tear. While the government does not acquire ownership of the private vehicles through the long-term odd-even road space rationing rule, and thus the rule seemingly does not constitute expropriation or requisition, Professor Zhang thinks this rule arguably is an unconstitutional expropriation of the citizen’s property because such an excessively long-term and severe restriction on the citizen’s property rights would infringe upon people’s legitimate property right and interest fundamentally.

Besides Professor Zhang’s argument that this rule is unconstitutional as an expropriation because it excessively infringes upon the citizens’ property right, this rule appears to be unconstitutional in two other ways. First, if this rule does not expropriate property but only limits or regulates it, as some may argue, the rule is not constitutional because the government is obligated to protect “the rights of citizens to private property.”[3] The only exception is the expropriation clause, which does not apply under this circumstance. Second, if this is an expropriation that is “in the public interest and in accordance with law,” it is not constitutional because it does not “make compensation for the private property expropriated.”[4] Therefore, this new rule under the government’s consideration will likely not satisfy the constitutional requirements easily.

[1] Constitution of the People’s Republic of China, Article 13.

[2] Id.

[3] Id.

[4] Id.