In an attempt to further strengthen China's commitment to
curb its pollution crisis, the Standing Committee of the National
People's Congress passed significant amendments to its Environmental
Protection Law on April 24, 2014 (the "Revised
Law"). Although China remains the world's biggest carbon
emitter, this is the first time the Environment Protection Law has
been amended since its enactment in 1989. The Revised Law is due to
take effect on January 1, 2015.
The Revised Law is particularly robust compared to its predecessor and imposes harsher punishments for environmental wrongdoing. Previously, polluting enterprises were subject to one-time penalties only; however, the amounts were not significant enough to provide a serious deterrent. The revision enables the Environmental Protection Bureaus ("EPBs") to now (i) fine offending companies on a daily basis until compliance with the EPB-issued orders are achieved, (ii) restrict production, and/or (iii) shut down operations, provided approval is granted at the national level. The Revised Law states that companies will be named and shamed for breaking environmental protection laws.
Responsible persons could also face up to 15 days' detention should their company fail to comply with an issued order to (i) submit an Environmental Impact Assessment, which is now required prior to the commencement of construction, (ii) obtain a license prior to creating pollutants, (iii) halt the use of prohibited pesticides for agriculture, or (iv) comply with suspension orders. Personal liability also arises should any responsible person attempt to circumvent supervision by falsifying monitoring data or improperly using pollution prevention equipment.
Companies will also be obliged to adhere to both government and provincial standards for pollution control, which vary according to industry. The provincial governments will be primarily responsible for monitoring companies operating within their jurisdiction, according to the pollutant quotas allocated by the government.
Finally, the Revised Law allows for the formal introduction of public interest environmental litigation in China. Although the process is currently restricted to registered civil-level organizations, it is anticipated that the impact will be considerable as it legally empowers the public to seek redress for environmental protection violations.
It is likely that the implementation of the Revised Law will take some time, and its success remains to be seen; however, it does send a clear message to current operators in China: The war on pollution has officially begun.
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