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The Making of Environmental Law in China

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The Making of Environmental Law in China Yu Wang The making of Environmental Law in China Master’s thesis in Global Environmental History Abstract Wang, Y. 2015. The making of Environmental Law in China. Uppsala, Department of Archaeology and Ancient History. This thesis analyses the history and politics of environmental law in China and its applications today. Looking back at the formation of China’s political system, from the administrative organ to the legal system, the thesis gives an overview of the long term roots in traditional political ideology in contemporary Chinese political practice. The history of environmental law is discussed in detail and the complexity of central, provincial and local governments and legislative organizations is discussed. The negotiation between government and enterprise, as a first part; through the environmental impact assessment law, and as a second part the relationship between government and individual referred to here as public participation is high lightened. I will analyse in detail particular case studies such as the Xiamen PX project and the Tianjin explosions. As I will show Although China’s environmental protection department has regulatory responsibilities of a unified supervision and management of environmental protection this supervision exist only on a theoretical or nominal level and the negation between different political interest on local, regional and national scale hampers the implementation of the environmental law in China. Keywords: Juridical tradition, environment law, lawhistory EIA, Public hearing, Public participation Master’s thesis in Global Environmental History (45 credits) Supervisor: Anneli Ekblom Defended autumn term 2015-12-08. © Yu Wang Department of Archaeology and Ancient History,Uppsala University, Box 626, 75126, Uppsala, Sweden. Acknowledgment I would like to express my gratitude to all those who helped me during the writing of this thesis. My deepest gratitude goes first and formost to my supervisor Anneli Ekblom for her constant encouragement and guidance. She has walked me through all the stages of the writing of this thesis. Without her consistant and illuminating instruction, this thesis could not have reached its present form. Second, I would like to express my heartfelt gratitude to Professor Maria Ågren and Gunnel Cederlof, who having supporting and encouraging me in past four years since 2011. Without them I might lost myself totally and never overcome the painful of huge loss. Thanks to all of Min’s colleges who are in history department show me their kind friendship at that time. Third, my thanks would go to my beloved family, my mother Xiangfen Ma（麻湘芬）and my father Dong Wang (王东) for they always bear suffering without complaining even though their daugher far away and couldn’t fulfill filial piety of taking care of them. Also thanks my close friend Yanfei Lang (郎艳飞), Hui Li（李慧）and Lei Yang（杨磊） who are in China but keeping stand on my side and listen to me day and night. Thanks to my dear friend and classmate Yongliang Gao（高永亮）companys with me to prepare the defense and let me laugh when I felt depressed. Thanks to my friend Mr Bosse Temunes always talk with me when I upset. My owe last and sincere gratitude is to my elder sister Min Wang（王敏）. Min is not only elder sister but also a hero that I will cherish in my heart forever. She has always lurched ahead even though faced with tough times and she has never given up. Without Min’s push, my life would just have kept moving along the same path as it had before in China, being protected by Min like a greenhouse flower and lacking of courage to face challenges. Without Min’s struggle with life I might never have got to know that the real meaning of life is to cherish what I have already rather than to complain about that which I do not have. Min broaden my view and made me look at the world. I am honoured to study and finish my second master thesis here in Uppsala University, the university that she loved in her whole life. Contents 1. Introduction 7 1.1. A Wake Up Call? .......................................................................................................... 7 1.2. Questions ...................................................................................................................... 9 1.3. Material and methods .................................................................................................... 9 1.4. Law in Chinese Environmental History ...................................................................... 10 2. Politics and law in China 12 2.1. The political system ........................................................................................................... 12 2.1.1. Communist Party ........................................................................................................ 12 2.2.2. The highest organ of state power – The National People’s Congress ........................ 13 2.2.3. The administrative organ of China ............................................................................. 16 2.2. The Administration of China (Relationship between government and provincial/local government) .............................................................................................................................. 16 2.3. The Legal system (The judicial organs and the pro-curatorial organs) ............................. 18 2.3.1. The law system hierarchy ........................................................................................... 19 3. A short history of the Chinese traditional political system 23 3.1. The political tradition in China .......................................................................................... 23 3.2. A brief overview of Chinese history .................................................................................. 24 3.3. Philosophy of Law in China .............................................................................................. 27 3.4. People’s Republic of China (PRC) and contemporary Chinese politics ............................ 27 4. The making of environmental law in China 30 4.1. Law development in the 1970s .......................................................................................... 30 4.2. The environmental law after 1979 ..................................................................................... 31 4.3. The validity of the environmental protection laws and governance structure ................... 32 4.4. The development of the state environmental protection department ................................. 35 4.5. Environmental Law and the problem of public disclosure ................................................ 36 4.6. Government, individual and enterprise .............................................................................. 37 4.7. Discussion .......................................................................................................................... 38 5. Testing the public participation principle 41 5.1. Public decision-making from the perspective of government administration ................... 42 5.2. Public participation rights in environmental protection issues .......................................... 43 5.3. The relationship between the Public participation rights and the public’s right to know .. 45 5.4. Public hearing as a principle of right to know ................................................................... 46 5.4.1. The Old Summer Palace Lake Hearing ...................................................................... 46 5.4.1. The Daba Tiger Hearing ............................................................................................. 47 5.5. Measures for Public Participation in Environmental Protection ........................................ 48 6. Environmental Impact Assessment System. (EIA) 50 6.1. The example of the Xiamen PX Project ............................................................................ 52 6.2. Discussion .......................................................................................................................... 54 7. The law as Mitigation: The Tianjin Explosions 55 7.2. The background ................................................................................................................. 56 7.2.1. The administrative relationship between Tianjin and Tianjin Port ............................ 57 7.2.2. Question 1: Port operator license and the port dangerous goods operating licenses .. 58 7.2.3 Question 2: An assessment report (could not be obtained from publicly available sources) ................................................................................................................................ 60 7.2.4 Question 3: EIA Report ............................................................................................... 60 7.3. The regulatory negligence and dereliction on duty under different administrative subordination ............................................................................................................................ 62 7.4. Discussion .......................................................................................................................... 63 8. Discussion 64 8.1. The relationship between government, enterprises and individual and environmental protection .................................................................................................................................. 64 8.2. Environmental protection department – A ‘toothless tiger’? ............................................. 65 8.3.
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