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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