China: Environmental Protection Law: big changes in 2014

Last Updated: 22 May 2014

On 24 April 2014 the PRC Government approved changes to the Environment Protection Law in the People's Republic of China, for the first time in 25 years ("Revised Law"). The Revised Law will come into force on January 1, 2015 and apply to almost every article of the current law. The Revised Law imposes stricter obligations on enterprises regarding pollution prevention and control, and provides for more severe penalties. With regard to public policy, the Revised Law specifies that the Government shall support the development of the environment industry and shall encourage enterprises to take environmental protection measures. Furthermore, the Revised Law allows for environment public-interest litigation. Details are as follows:

  1. Greater liability for enterprises
    1. The Revised Law expands the scope of projects that shall be subjected to environmental impact assessment, and clarifies the legal consequences in the event of non-compliance. Development and utilization plans and construction projects that have an impact on the environment must be subjected to an environmental impact assessment. Enterprises are prohibited from commencing projects that have not undergone an environmental impact assessment in accordance with the law.
    2. The Revised Law compels enterprises to establish environmental protection responsibility systems. Enterprises that discharge pollutants must establish environmental protection responsibility systems, and must specify the responsibilities of persons-in-charge. In addition, enterprises that discharge certain key pollutants must install and use monitoring equipment, and must keep all original monitoring records.
    3. The Revised Law implements a control system for total emissions of key pollutants. In addition to implementing the national and local pollutant discharge standards, enterprises must also follow the control indicators of total emissions of key pollutants allocated to the enterprises. That is to say, the enterprises should meet the pollutant discharge standards first. If the enterprises fail to reach the control indicators of total emissions of key pollutants allocated to them, the enterprises must implement stricter emission standards to share the control indicators.
    4. The Revised Law provides for a pollution discharge license. All enterprises must apply for a license for discharging pollutants, and must observe the requirements of the license. Currently, the Ministry of Environmental Protection is establishing an integrated pollution discharge license management system, and has recommended that the State Council formulate implementation regulations.
    5. The Revised Law requires enterprises to prepare emergency response plans for emergency incidents, and file them with the competent department of environmental protection for its records. When emergency incidents occur, the enterprise must immediately take specific measures.
    6. The Revised Law contains a chapter on 'Information Disclosure and Public Participation', and requires enterprises to establish an information disclosure system. This chapter clarifies that enterprises that discharge certain key pollutants must truthfully disclose their major pollutants, discharge methods, emission concentration, total emissions, excessive emissions as well as the construction and operation of pollution prevention and control facilities, and will be subject to supervision. The requirements in relation to disclosing information on pollutants in the current law are voluntary, but those in the Revised Law are compulsory. Further, enterprises are required to provide information to the public where members of the public are affected by the pollutants are solicit public opinions when preparing environmental impact reports.
  1. More severe punishment for illegal acts
    1. The current law specifies that any enterprise that fails to eliminate or control pollution within a specific period of time may be ordered to suspend or shut down its operations. The Revised Law allows the competent authorities to take measures such as restricting and suspending production in order for the company concerned to rectify the situation. Additionally, the authorities may also directly order the enterprises concerned to suspend or shut down production.
    2. The competent departments may close down and detain facilities and equipment causing pollution discharge. Such measures do not exist in the current law, and the Revised Law provides greater powers to the authorities in order to punish companies for the discharge of pollutants.
    3. The Revised Law establishes a "daily penalty" system, and sets no limit to the total amount of the fines. The fines specified in the Revised Law shall be implemented according to factors such as the operating costs of pollution prevention and control facilities, and direct losses arising from violations or illegal gains. Further, if an enterprise illegally discharges pollutants and is subsequently fined, the enterprises will be ordered to rectify the situation. If the enterprise refuses to do so, the authority that imposed the penalty may impose cumulative daily fines. Accordingly, the costs of unauthorized pollution discharge may increase rapidly.
    4. The Revised Law establishes a "pollution blacklist". The pollution blacklist will record all environment violations and will be publicly available.
    5. If an enterprise refuses to make an environmental impact assessment, discharge pollutants illegally, falsifies the monitoring data or conducts other illegal activities, employees who are directly in charge of such environmental violations may face detention. Institutions that commit fraud in providing environmental services are liable for any environmental pollution or ecological damage that results. Such institutions, engaging in the maintenance and operation of environmental monitoring equipment and pollution prevention and control facilities. These parties can also be held jointly liable for pollution or ecological damage.
  1. The establishment of environment public-interest litigation
    1. The Revised Law clarifies the scope of environmental public-interest litigation. A social organization that meets certain conditions may appeal to the court for acts that pollute the environment, damage ecology, and harm the public interest. Public-interest litigation provides a legal channel for citizens and community groups to participate in environmental protection. There are a number of conditions that the social organization is required to meet. For example, the social organization must be registered in the civil administrative must be registered in the civil administrative department of the local government, and the organization must have specifically engaged in public environment protection activities over five consecutive years without any violations. According to preliminary estimates, nearly 300 social organizations in China meet these requirements.
    2. The Revised Law clarifies the legal basis of environmental public-interest litigation. If environmental pollution causes any ecological or environmental damage, persons responsible should bear tortious liability in accordance with the Tort Law of the PRC.
    3. The limitation period for any case brought for compensation for environmental damage is three years. The limitation period is calculated from the date on which the relevant party first becomes or should have become awareness of the environmental damage.
  1. IV. How to meet the challenge?
  2. The Revised Law expands the scope of liability and increases the severity of punishment for enterprises that pollute. In consequence:

    1. Enterprises should adopt pollution prevention and control technologies so that any pollution they discharge complies with national or local pollution discharge standards and the control indicators of total emissions of key pollutants allocated to the enterprises.
    2. Enterprises should establish systems for preventing pollution in accordance with the Revised Law. The relevant systems include environmental protection responsibility systems, emergence response plans for emergency incidents, information disclosure systems, and other necessary systems.
    3. Enterprises should cooperate actively with the supervision authorities in order to avoid punishment; should prepare environmental impact assessments if their construction projects have an impact on the environment; should install and use equipment, and keep all original monitoring records, when discharging certain key pollutants,; and should rectify illegal discharge behavior immediately to avoid cumulative daily fines. These measures can help enterprises avoid huge economic loses.

Enterprises must comply with the Revised Law by January 1, 2015. In the meantime, we expect that authorities will promulgate a series of related laws, regulations, and implementation rules.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
King & Wood Mallesons
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
King & Wood Mallesons
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions