China Proposes Framework for Public Participation in Environmental Policymaking and Enforcement
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China’s Ministry of Environmental Protection (MEP) has proposed “Measures for Public Participation in Environmental Protection (Trial)” (Measures), which lay out a variety of mechanisms for public participation in environmental lawmaking, policy, and enforcement. The proposed Measures characterize the (1) activities in which the MEP and other environmental protection departments (“departments”) would seek public participation, (2) mechanisms for public participation, and (3) manner in which the public may participate in environmental oversight and enforcement. The MEP solicited comments on the Measures through April 20, 2015.
The Measures broadly define the subject matter and scope of public participation, which will include input from citizens, businesses and other organizations. Specifically, the Measures call for public participation in:
- Formulating and revising laws, regulations, policies, and standards;
- Designating and adjusting the boundaries of environmentally protected areas;
- Developing environmental impact reports for projects;
- Investigating and prosecuting cases involving pollution or ecological destruction;
- Oversight of pollutant discharges and pollution control facilities; and
- Public and educational activities relating to environmental protection.
The Measures, in very general terms, describe the processes for the MEP and other departments to solicit public input. These mechanisms include (1) public reviews, in which the government will seek written opinions; (2) the use of questionnaires to take surveys of public opinion; (3) environmental protection symposia, which would bring together stakeholders, scholars and experts to address specific activities affecting the environment; (4) topic-specific workshops for soliciting expert opinions; and (5) public hearings, which would generally be open to the public and allow for cross-examination.
The Measures are vague in terms of the extent to which they make public notice and response to comments mandatory duties. The duty to disclose relevant information and solicit comment is framed as expectant rather than compulsory (“should” rather than “must”). The Measures also direct relevant departments to analyze and respond, when necessary, to public comments, and do not identify the form in which this response would be made or the timeframe for response. At bottom, it is unclear whether failure to adhere to the Measures in the context of a given decision leaves the decision vulnerable to challenge for procedural irregularity, and without the guarantee of such a challenge, query whether governmental decision makers will see themselves as accountable under the Measures.
The last component of the Measures provides for greater public oversight of government entities and involvement in environmental enforcement. They provide that the relevant departments should employ special inspectors to supervise environmental operations; the special inspectors would be drawn from the NPC, the People’s PPC, democratic parties, environmental protection social organizations, and volunteers. Volunteers and social organization members would also be used to supervise the impacts of environmental protection activities and construction projects. The Measures appear to provide for public involvement in investigations. Precisely how this involvement would work and how the rights of the accused can avoid compromise in such circumstances are far from clear. Likewise, the Measures do not specify how the relevant departments are to use any findings made by outside monitors.
The Measures supplement these formal oversight and inspection mechanisms with provisions inviting the public to report violations and permitting social groups to bring their own enforcement suits. Under the Measures, the general public would be able to report environmental violations of any entity, including state and public institutions, to the relevant department. The department receiving this information would be required to keep the report and reporter’s identity confidential. To encourage reporting, the Measures encourage departments to set up special funds to reward meritorious reports. Finally, the Measures provide that qualified environmental protection social organizations can bring suits against entities that pollute or cause ecological damage. As part of these suits, the department that has responsibility for regulating the defendant would be required to provide relevant information to support the lawsuit if so requested.
In short, the Measures sketch out a framework for expanded participation in environmental regulation in China. Although the Measures provide an outline for expanded involvement, it remains to be seen how frequently China’s environmental protection departments use these procedures and what substantive effect they will have on environmental regulation and enforcement.
Beveridge & Diamond advises Chinese companies on the environmental considerations of doing business in the U.S. and, through relationships with a network of Chinese national law firms, on environmental issues faced by multinational companies doing business in China. Firm Principals Karl Bourdeau and Scott Fulton regularly travel to China and foster dialogue among various stakeholders regarding China’s evolving environmental regulatory regime. For more information, please contact the authors or any member of our China Practice.