Th ere are four approaches to implementing environmental measures in China. 27 Th e fi rst approach is via orders and control, including control of the total amount of emissions, environmental impact assessments, the three-simultaneity system, centralized pollution control, setting dead- lines for control of sources, and pollution discharge permits. Th e sec- ond approach is market instruments, such as pollution levies, penalties, SO 2 and CO 2 emission trading, and subsidies for energy-saving prod-
ucts. Th e third approach involves voluntary actions, for example ISO 14000 standards, eco-model areas, environmental NGOs, and green GDP accounting pilot projects. Th e fourth method refers to public participation, which means citizens monitor and report environmental issues through, for example, environmental protection hotlines, online reporting systems and complaint mailboxes, and participating in court for some issues. Orders and control used to be the main approach for implementing environmental regulations. Recently, however, methods in the second approach have been widely used, and those in the third and
fourth approaches have also appeared in many places. However, failure to implement these measures also widely exists due to weak enforcement. Th e limited power of environmental authorities is one reason for the failure to implement environmental laws. 28 , 29 Before being upgraded to its current ministerial level, the MEP had limited administrative powers and was not allowed to participate fully in national decision making. After being upgraded, it was granted more power but is still subject to decisions from other ministries and departments. Local environmental authorities are subordinate to local government. Th ey are reliant on the government for both funding and enforcement, making it hard for them to act freely in the local interest and protect the environment. Some local governments set economic growth as a priority and therefore interfere with the environmental protection authority and protect large, polluting enterprises. Current legislation only allows the environmental authorities to make suggestions and issue fi nes or administrative penalties. Th ey do not have the power to force a violator to make changes or stop produc- tion within a certain time limit. Local environmental authorities usually have no powers of enforcement over an unlawful polluting project that has been approved by the environmental authority at higher adminis- trative levels. 30 Also, since the fi nes are usually small, it may cost more to obey the law than to break it. Many environmental violators receive administrative punishments rather than criminal penalties, as the punish- ments are not that eff ective.
Although there is a comprehensive approval process for new industrial projects, and all the projects are required to do an environmental impact assessment, many projects with severe environmental consequences, particularly small enterprises, start construction without environmental investigation or approval. Most of the time, the imposition of punish- ment to these violators is delayed. 31
28 Ma, “China’s Environmental Governance.”
29 Wang, “Chinese Environmental Law Enforcement,” 160–193.
30 In this case, the local environmental authority can only collect the pollution emission charge,
which is paid by all organizations that discharge pollutants, the amount of which is determined by the volume of emissions.
Environmental policy is set by the government, overseen by the environmental authorities, and implemented by various government departments. In principle this is eff ective, but coordination between environmental authorities and other departments is poor, mainly because of the huge amount of overlap among departments. For example, water pollution is the responsibility of the environmental authorities, but water and groundwater are managed by the Ministry of Water Resource, and sewage is dealt with by the Ministry of Construction, which also has the function of directing the use and protection of groundwater in cities. Th is problem has been solved in other countries through greater depart- mental communication, but not in China due to the lack of legislative clarity of each department’s role, power, and responsibilities.
Additionally, the public lack of awareness of environmental protec- tion and participation in social supervision is also detrimental to enforc- ing environmental regulations. Under the current legislative framework, it is diffi cult for the public actually to participate in the environmental impact assessment process. 32
Furthermore, decentralization of the environmental regulatory body makes the enforcement of national policy at the local level diffi cult 33 and the stringency varies between regions. Environmental standards are set jointly by local and national regulators. Levy rates are formally established by a national regulator but the actual levies are decided and collected by local regulators, some of whom tolerate polluting companies for economic interests. Excessive pollution happens in some regions due to the failure of local government. Th e situation continues because of the lack of awareness by some local government offi cials about the environment, environmental laws, and the rule of law in general. Th erefore, local levies may vary from region to region for identical industries and pollutants. In addition, local regulatory inspections also vary, as some regions have better management systems than others. In some places, the enforcement of environmental and energy laws are mainly by ‘urging the rectifi cation supplemented by punishment’. As a result, regulatory strength diff ers across regions.
32 Ibid.
Finally, unprecedented economic growth has been the key reason behind implementation diffi culties. 34 Rapid economic growth has led to tremendous changes in the economic structure, the concentration of people in major cities, and changes of lifestyles, which have all had envi- ronmental impacts. Although China has achieved relative improvement measured by pollution levels or energy consumption per unit of GDP, the absolute environmental improvements are still below the expecta- tions and targets. In addition, the development of other areas of society is lagging behind the development of the economy, for example, legal sys- tems, fi scal and fi nancial policies, education (hence human capital), and technology. Th ese are important factors for the success of the formulation and implementation of environmental policies.