Love in the Time of Smog: Beijing’s Air Pollution Crisis Law Georgetown International Environmental Law Review

Leah Li

Love in the Time of Smog: Beijing’s Air Pollution Crisis

By Leah Li, Staff Contributor

The “APEC Blue” is a humorous description used to characterize Beijing’s unusually clear blue sky during the 2014 APEC Summit. The environmental problems in China are so severe that mere weeks after events like the APEC Summit and the 2008 Olympics, the usual smog came back. January 1, 2015, 25 years after the Environment Protection Law was first implemented, the first amendment of it became effective. Can it really bring about environment improvements that China has been looking forward to?

The existence of the law is not sufficient on its own. In July 2014, right after the amendment of the Environment Protection Law, the Supreme Court announced the establishment of environment and natural resources cases divisions.[1] This was nearly seven years since November 2007, when the first local environmental tribunal was formed in China- the People’s Court of Guiyang Qingzhen environmental court. In the past seven years, 20 provinces and autonomous regions have established various specialized environment law courts.[2] However, in stark contrast to China’s increasingly serious environmental situation such as group protests against factories and other environmental disputes, the environmental tribunals are trying no cases.

Setting up special environment and natural resources courts is not some kind of formalism or pursuit the interests of the legal department—it is necessary for the implementation of environmental law. The Environment Protection Law of China was developed to supplement the private enforcement against pollution. In the beginning, plaintiffs sought to resolve environmental disputes through tort claims, where the victims filed lawsuits for personal or property damages caused by pollution.[3] However, under traditional tort law principles such as liability by fault, reasonableness standards and contributory liability, victims are not sufficiently compensated.

“The Environment Protection Law recognized the dual damages of private personal, property, and mental damage, but also damage to the natural environment itself.”

In amending the Environment Protection law, the legislation in China looked closely at other countries’ more advanced environmental tort legislation, especially in the establishment of a strict liability system. More importantly, the amendment was influenced by other specialized environmental laws such as Japan’s Health Hazards Victims’ Compensation Act and Germany’s Environmental Liability Law.[4] The amendment sought to establish a double relief mechanism and unified procedural rules to properly handle environmental disputes. At the same time, the legal department followed the international trend to establish special proceedings and to set up special tribunals.

However, enforcement is the life of the law, and active judiciary involvement is necessary for enforcement mechanisms. The Environment Protection Law was enacted in 1979. Since then, more than 30 statutes became effective, policing environmental issues regarding air, water, noise, solid waste and other areas. Various kinds of natural resources protection law sought to take care of land, water, fisheries, forests, grasslands, wildlife and the like.[5] However, poor enforcement allows more and more hazy days and “soy sauce water.” Currently, in the field of environmental protection—as well as many other areas—the concept of the rule of law is still rudimentary. Faced with the threat of environmental hazards, Chinese residents still look to the executive departments. Additionally, the current environmental management tools are mainly administrative means and imperative regulations. Incentivizing the use of judicial means to resolve environmental disputes is likely the next big issue for China after the major environmental law amendment.

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[1] China’s Supreme Court Sets up Environment Case Division, Xinhuanet (July 3, 2014, 3:57pm), http://news.xinhuanet.com/english/china/2014-07/03/c_133458061.htm

[2] See id.

[3] 走出环境司法的困境 – 访环境法资深学者吕忠梅, Caixin (Nov. 21, 2014, 7:48am), http://opinion.caixin.com/2014-11-21/100753682_all.html#page2

[4] See id.

[5] 《中华人民共和国环境保护法》修订前后对照表, http://www.croplifechina.org/china.pdf

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