Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment

Though a burst of clear skies on Monday allowed Beijingers to marvel at a magnificent Mid-Autumn Festival moon, a blanket of smog choked the capital the next morning, reminding citizens of China’s grave air pollution woes. However, that same Tuesday, September 9th, the Legislative Affairs Office of China’s State Council released the first draft of the highly-anticipated revisions to the national Air Pollution Prevention and Control Law (hereinafter referred to as the Air Pollution Law), providing hope that blue skies won’t always be so fleeting.

The State Council’s Legislative Affairs Office, which generates and reviews drafts of national laws and regulations, will be accepting comments on revisions of the law between September 9th and October 8, 2014. Releasing the draft law for public comment at such an early stage of the process is a big step forward for governmental transparency and public participation. The Chinese government does not usually seek public comments on laws until they are submitted to the National People’s Congress (NPC), at which point it becomes more difficult for the public to influence legislation.

Amendments to the Air Pollution Law have been a long time in the making. China’s original 1987 Air Pollution Law was first revised in 1995 and further strengthened in 2000. But these earlier versions lacked specific details and mechanisms for enforcement.

Discussions to revise the law resumed in 2006. A draft of the Air Pollution Law amendments was submitted by the Ministry of Environmental Protection (MEP) to China’s State Council in January of 2010. NRDC, capitalizing on its deep expertise on the U.S. Clean Air Act, co-organized several workshops on the draft amendments, and assembled a team of experts to publish a 14-chapter document providing guidance based on the U.S. experience with air pollution legislation.

In April 2011, we prepared another report focusing in greater depth on the most recent climate policies and actions in the U.S., specifically those led by the U.S. EPA, federal energy policies and state and regional programs. The purpose of that report was to serve as a helpful reference to China as it began to consider establishing co-control and climate-friendly air pollution prevention strategies.

China’s Air Law amendment process was later postponed when the government opted to prioritize revisions to the Environmental Protection Law (EPL), which had not been amended since it was officially adopted in 1989. Amendments to the EPL were finalized in April of this year and will go into effect beginning January 1, 2015.

With an effective blueprint for enforcement established by the new EPL, Chinese lawmakers can now shift their focus to more specific environmental laws, and the Air Pollution Law is first on the agenda. The draft law incorporates several critical advancements to help manage China’s suffocating air pollution. In particular, the draft law:

• Clarifies the responsibility of governments for environmental protection, especially the role of local governments in managing regional air quality. Local officials will be assessed on compliance with air quality targets and the results will be released to the public.  
• Improves the air pollutant emissions control system, by increasing the scope of emissions caps, establishing new targets for key emissions controls, and suspending approval for new projects in areas that exceed emissions targets.  
• Strengthens the emissions permit system, by making the system more workable and clarifying the details on where and how permits are granted. The new amendments  of the law also integrate the permit system with other systems, such as the environmental impact assessment (EIA) system, in order to streamline the process for enterprises and ensure they are complying with emissions regulations.
• Reinforces key areas for air pollution prevention and control, by strengthening measures to confront pollution from coal, motor vehicles, industries, dust, and other specific sources.
• Strengthens environmental air quality and pollution source monitoring by organizing a national environmental air quality and atmospheric pollution source monitoring network, which integrates information about changes and trends in national air quality and stipulates self-monitoring for key polluting enterprises.
• Demarcates key regions for air pollution prevention and control, where special air pollution measures and targets will be implemented. The new aspects of the law also establish mechanisms for regional cooperation.
• Establishes a heavy pollution weather monitoring forecast system, whereby provincial governments’ environmental and meteorological departments will cooperate to forecast heavy pollution days. Upon such warnings, governments at the county level and above will be required to implement emergency response measures.
• Increases the strength of penalties, to help hold local governments and illegally emitting enterprises accountable. Based on regulations included in the new ELP amendments, refusal to change behavior may result in daily penalties.

Article 22 of the draft Amendments calls upon the country to “establish a mid- and long-term coal consumption cap target, progressively reduce the proportion of coal in primary energy consumption, optimize the use of coal, and reduce the air pollution emissions from coal production, use and transformation.” Similar language was also included in the State Council’s September 2013 “Atmospheric Pollution Prevention Action Plan,” but it will be helpful -- and presumably improve enforcement -- to enshrine these requirements in the Air Pollution Law itself.

Though such changes to the Air Pollution Law represent positive improvements, many aspects of the law still lack the force and specificity necessary to bring about comprehensive change in China’s national air quality. Of note, the law lacks human health-based air quality standards and a system for updating such standards, as well as a system for updating emission targets. In addition, the law is also missing relevant provisions on information disclosure, public participation or public interest litigation – all of which serve as crucial enforcement mechanisms when top-down methods fall short. Furthermore, the scope of daily penalties is still extremely limited, and the law lacks positive market-based incentives to encourage enterprises to comply with regulations.

NRDC’s China Environmental Law Project has long provided in-depth research and technical support to advance China’s various environmental laws, including the EPL and the Air Pollution Law.  Using our extensive knowledge of the U.S. Clean Air Act, we have transferred legal expertise to Chinese lawmakers and environmental NGOs through workshops, reports, and recommendations, all of which are aimed at strengthening the rule of law in China. We plan to submit provision-specific comments on the draft Air Pollution Law amendments to the Legislative Affairs Office of the State Council by the October deadline, and we also hope to publish more detailed recommendations later this year before the law is finalized.

The law will likely undergo several additional rounds of revisions before it is officially adopted. Thus, there is still time to make the law more specific and stringent.  This is an essential step in order to arm the government with the tools necessary to confront the perpetual barriers to Chinese environmental legal enforcement, and bring back blue skies to Beijing and the rest of China.

Co-authored with members of the China Environmental Law Project: Kate Logan, Marie McMullen, Tianshu Sun, Wang Yan, Wu Qi, Zhang Xiya, and Yuelin Zhou.