Environmental and Resource Protection Law 9819944473, 9789819944477

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Environmental and Resource Protection Law Ke Zhou · Luozhi Yi · Xinjian Su · Youhai Sun

Environmental and Resource Protection Law

Ke Zhou · Luozhi Yi · Xinjian Su · Youhai Sun

Environmental and Resource Protection Law

Ke Zhou Renmin University of China Beijing, China

Luozhi Yi Hunan University Changsha, China

Xinjian Su Zhejiang Gongshang University Hangzhou, China

Youhai Sun Tianjin University Tianjin, China

ISBN 978-981-99-4447-7 ISBN 978-981-99-4448-4 (eBook) https://doi.org/10.1007/978-981-99-4448-4 Jointly published with China Renmin University Press The print edition is not for sale in China (Mainland). Customers from China (Mainland) please order the print book from: China Renmin University Press. ISBN of the China (Mainland) edition: 978-7-300-31391-7 © China Renmin University Press 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publishers, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publishers nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publishers remain neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Contents

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2

1 1 1

Environmental Issues and Protection 1 Environment and Environmental Issues 1.1 Definition and Classification of the Environment 1.2 The Relationship Between Humans and the Environment 1.3 The Role of the Environment in the Development 1.4 Definition and Classification of Environmental Issues 2 Environmental Protection 2.1 Definition of Environmental Protection 2.2 The Main Content of Environmental Protection 2.3 Environmental Protection as a Basic National Policy of China 3 Sustainable Development, Scientific Outlook on Development, and Ecological Civilisation 3.1 Sustainable Development 3.2 Scientific Development Concept 3.3 Ecological Civilisation

9 9 10 11

Overview of Environmental Law 1 Concepts and Characteristics of Environmental Law 1.1 The Concept of Environmental Law 1.2 Characteristics of Environmental Law 2 The System of Environmental Law

13 13 13 14 16

2 3 4 6 6 7 8

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2.1 2.2 2.3 2.4

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3

Constitutional Provisions Comprehensive Basic Environmental Law Single Act on Environmental Protection Environmental Protection Norms in Other Sectoral Laws 2.5 Administrative Regulations for Environmental Protection 2.6 Local Regulations and Administrative Rules for Environmental Protection 2.7 Environmental Protection Norms in International Law Basic Principles of Environmental Law 3.1 The Principle of Priority of Protection 3.2 The Principle of Prevention 3.3 Principles of Integrated Governance 3.4 Principles of Public Participation 3.5 Principles of Liability for Damage

The Primary Regimes of Environmental Law 1 Environmental Impact Assessment and the “Three Simultaneous” System 1.1 Environmental Impact Assessment (EIA) System 1.2 “Three Simultaneous” System 2 Environmental Administrative Permit (EAP) System 2.1 Overview of the (EAP) System 2.2 Setting and Implementation of EAPs 2.3 Subjects for Implementing EAPs 2.4 Procedures for the Implementation of EAPs 3 Environmental Standards System 3.1 Overview of Environmental Standards 3.2 Classification of Environmental Standards 4 Cleaner Production and Circular Economy Systems 4.1 Cleaner Production 4.2 Circular Economy 5 Environmental Taxation System 5.1 The Concept and Role of the Environmental Taxation System 5.2 Collection of Environmental Taxes 6 Environmental Accident Reporting System

16 18 19 20 20 21 21 22 23 25 26 29 33 37 37 37 41 43 43 45 46 47 49 49 50 53 53 59 61 61 62 65

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6.1

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4

Concept and Significance of the Environmental Accident Reporting System 6.2 Content of the Reporting System of Environmental Accidents Source and Area-Specific Protection Systems 7.1 Concept and Meaning 7.2 Objective Identification 7.3 Early Warning Mechanism for Monitoring the Carrying Capacity of Environmental Resources 7.4 Ecological Protection Red Line

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Environmental Tort and Environmental Civil Liability 1 Environmental Tort 1.1 The Concept of Environmental Tort 2 Characteristics of Environmental Torts 3 Principles of the Imputation of Environmental Civil Liability 3.1 The Principle of Fault-based Liability and Its Adjustment 3.2 The Application of the Principle of No-Fault Liability in Environmental Law 4 Constituent Elements and Exemptions of Environmental Civil Liability 4.1 Constituent Elements of Environmental Civil Liability 4.2 Exemptions from Environmental Civil Liability 5 Assumption of Environmental Civil Liability 5.1 Ways of Assuming Civil Liability for the Environment 5.2 Joint Tort 6 Remedies for Environmental Torts 6.1 Self-Negotiation 6.2 Mediation 6.3 Arbitration 6.4 Litigation

65 66 71 71 71

75 78 83 83 83 84 85 85 86 87 87 91 93 93 95 96 96 97 98 98

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Overview of Environmental Pollution Prevention and Control Law 1 Overview of Environmental Pollution 1.1 The Concept of Environmental Pollution 1.2 Types of Environmental Pollution 1.3 Characteristics of Environmental Pollution 2 Environmental Pollution Prevention and Control Legislation and the Primary Legal System 2.1 Status of Legislation on the Prevention and Control of Environmental Pollution in China 2.2 The Main Regimes of Environmental Pollution Prevention and Control Law

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Air Pollution Prevention and Control Act 1 Overview of the Atmospheric Pollution Control Act 1.1 The Concept of Atmosphere and Atmospheric Pollution 1.2 Legislation on the Prevention of Air Pollution in China 2 The Main Legal Provisions for the Prevention and Control of Air Pollution in China 2.1 Responsibilities of People’s Governments at All Levels in the Prevention and Control of Air Pollution 2.2 Supervisory and Management System for the Prevention and Control of Air Pollution 2.3 Obligations of Polluting Units to Prevent and Control Air Pollution 2.4 Supervision and Management System for the Prevention and Control of Air Pollution 2.5 Preventing Air Pollution from Coal Burning 2.6 Industrial Pollution Prevention and Control 2.7 Pollution Prevention and Control of Motor Vehicles and Vessels 2.8 Prevention and Control of Dust Pollution 2.9 Other Pollution Prevention and Control 2.10 Joint Prevention and Control of Air Pollution in Key Regions 2.11 Dealing with Heavily Polluted Weather

99 99 99 100 100 102 102 103 109 109 109 113 114

114 115 116 116 117 118 120 123 124 125 125

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Water Pollution Prevention and Control Law 1 Water Pollution Issues 1.1 The Concept of Water Pollution 1.2 Types of Water Pollution 2 Overview of the Water Pollution Prevention and Control Law 3 The Primary Laws and Regulations on the Prevention and Control of Water Pollution in China 3.1 The Principle of Water Pollution Prevention and Control 3.2 Responsibilities of People’s Governments at All Levels in Water Environmental Protection 3.3 Supervision and Management System of Water Pollution Prevention and Control 3.4 Water Environment Protection Standards System 3.5 Central Systems for Water Pollution Prevention and Control 3.6 Protection of Drinking Water Sources and Other Unique Water Bodies

127 127 127 128

Soil Pollution Prevention and Control Law 1 Overview of Soil Pollution 1.1 The Concept of Soil Pollution 1.2 Types of Soil Contamination 1.3 The Hazards of Soil Pollution 2 Soil Pollution Prevention and Control Legislation 2.1 Laws 2.2 Regulations, Rules, and Standards 2.3 Policies 3 The Main Legal Provisions for the Prevention and Control of Soil Pollution in China 3.1 Legislative Purpose and Basic Principles of the Soil Pollution Prevention and Control Law 3.2 Government Responsibilities for Soil Pollution Prevention and Control 3.3 The Regulatory System of Soil Pollution Prevention and Control

139 139 139 140 141 142 142 144 145

130 131 131 132 132 133 134 135

146 146 148 149

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Planning, Standards, Census, and Monitoring Prevention and Protection Risk Control and Remediation

Marine Environmental Protection Law 1 Marine Pollution Issues 1.1 The Marine Environment 1.2 The Concept of Pollution of the Marine Environment 1.3 China’s Marine Environmental Protection Legislation 2 Main Legal Provisions of China’s Marine Environmental Protection 2.1 Purpose of Legislation 2.2 Scope of Application 2.3 Supervision and Management of the Marine Environment 2.4 Provisions on the Protection of Marine Ecosystems 2.5 Provisions on the Prevention of Pollution and Damage to the Marine Environment by Pollutants from Land-Based Sources 2.6 Provisions on the Prevention of Pollution Damage to the Marine Environment from Coastal Engineering Construction Projects 2.7 Provisions on the Prevention of Pollution and Damage to the Marine Environment from Marine Engineering Construction Projects 2.8 Provisions on the Prevention of Pollution and Damage to the Marine Environment by the Dumping of Waste 2.9 Regulations for the Prevention of Marine Environment Pollution by Ships and Related Operations 3 Protection of Marine Areas and Islands 3.1 Protection of the Sea Area 3.2 Protection of Islands

151 155 159 173 173 173 173 175 178 178 178 179 182

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Environmental Noise Pollution Prevention and Control Law 1 Environmental Noise Pollution Issues 1.1 The Concept of Environmental Noise 1.2 The Characteristics and Harms of Environmental Noise Pollution 2 Environmental Noise Pollution Prevention and Control Legislation 3 Main Legal Provisions for Prevention and Control of Environmental Noise Pollution in China 3.1 Supervision and Management System of Environmental Noise Pollution Prevention and Control 3.2 The Primary Responsibilities of People’s Governments at All Levels in the Prevention and Control of Environmental Noise Pollution 3.3 Legal Provisions of the Sound Environment Standards 4 Supervision and Management System for the Prevention and Control of Environmental Noise Pollution 4.1 Environmental Impact Assessment and “Three Simultaneous” System 4.2 Elimination System for Outdated Processes and Equipment 4.3 Environmental Noise Monitoring System 5 Legal Provisions on the Prevention and Control of Industrial Noise Pollution 5.1 Requirements for Noise Emissions 5.2 List System for Noise Emission Units 5.3 Providing a Noise Monitoring System for Industrial Equipment 6 Legal Provisions on the Prevention and Control of Noise Pollution in Building Construction 7 Legal Provisions on the Prevention and Control of Noise Pollution from Transportation 7.1 Prevention of Excessive Noise Emissions from Finished Vehicles 7.2 Use of Sound Devices by Regulations

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199 200 202 202 202 203 203 204 204 204 205 206 206 206

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Provisions on Areas and Hours for Prohibiting Driving and Horn Use 7.4 Measures For the Prevention and Control of Noise Pollution Generated in Road Construction and Infrastructure Development 7.5 Provisions to Mitigate Noise Pollution During Traffic Command Operations 7.6 Measures to Prevent and Control Aircraft Noise Pollution Legal Provisions on the Prevention and Control of Social Life Noise Pollution

Law on the Prevention and Control of Pollution by Toxic and Hazardous Substances 1 Overview of Pollution Prevention and Control of Toxic and Hazardous Substances 1.1 Toxic and Hazardous Substances Pollution 1.2 The Law on the Prevention and Control of Pollution by Toxic and Hazardous Substances 2 Solid Waste Pollution Prevention and Control Act 2.1 Overview of Solid Waste Pollution 2.2 China’s Primary Laws and Regulations on the Prevention and Control of Environmental Pollution by Solid Waste 3 Radioactive Substances Pollution Prevention and Control Act 3.1 Contamination by Radioactive Substances 3.2 Main Legal Provisions for the Prevention and Control of Radioactive Material Pollution in China 4 Toxic Chemicals Pollution Prevention and Control Act 4.1 Concept and Characteristics of Toxic Chemicals 4.2 Main Legal Provisions for the Prevention and Control of Environmental Pollution by Toxic Chemicals in China 4.3 Pesticide Pollution Prevention Act

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207 207 208 208 211 211 211 213 215 215

216 221 221

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224 228

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Natural Resources Protection Act 1 Natural Resources and Natural Resources Protection Act 1.1 Overview of Natural Resources 1.2 Legal Protection of Natural Resources 2 Ecological Security and Natural Disaster Prevention Act 2.1 Ecological Security 2.2 Natural Disaster Prevention and Control Legislation 3 Biological Resources Protection Act 3.1 Biodiversity Conservation 3.2 Wildlife Protection Act 3.3 Basic Legal Provisions for Wild Plant Protection 3.4 Fisheries Resources Protection Act 3.5 Forest Resources Protection Law 3.6 Grassland Resources Protection Act 4 Non-Living Resources Protection Act 4.1 Land Resources Protection Act 4.2 Water Resources Protection and Soil and Water Conservation Law 4.3 Mineral Resources Protection Act 5 Regional-Specific Environmental Protection Laws 5.1 The Concept and Characteristics of the Specific Regional Environment 5.2 Legal Protection of Natural Monuments (Heritage) and Human Monuments (Heritage) 5.3 Legal Protection of Scenic Areas 5.4 Legal Protection of Forest Parks 5.5 Nature Reserve Law

Index

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231 231 231 232 234 234 235 236 237 241 245 247 249 254 262 263 271 280 283 283 285 286 288 291 297

CHAPTER 1

Environmental Issues and Protection

1

Environment and Environmental Issues 1.1

Definition and Classification of the Environment

“Environment is the sum of the external conditions surrounding a central thing.” The sum of all external influences and forces acting on an object is called the environment of that object. In environmental science, the human-centred environment is the sum of the space surrounding a population and all the external influences and forces acting on the human object. This environment can also be called the human environment. The environment in the context of environmental law is subject to the object of environmental management and legislation of each country. (1) The environment can be divided into natural and social environments according to the causes of its formation. The natural environment is the sum of the naturally occurring materials and energy that surrounds humans and directly or indirectly impacts their survival and development. On the other hand, the social environment is the sum of the economic base and superstructure created by man and acting on the man himself. It consists of the settlement, production, transport, and cultural environment. (2) According to the elements of the environment, the environment can be divided into the atmosphere, water, sea, soil, and biological environment, etc. © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_1

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(3) According to the function, the environment can be divided into agricultural, industrial, transportation, production, living, and tourism environment, etc. (4) The environment can be divided into living and ecological environments according to whether it is an area of human habitation. China’s Constitution adopts this classification.

1.2

The Relationship Between Humans and the Environment

The relationship between human beings and the environment mainly refers to the relationship between humans and the natural environment. The natural environment has three roles for human beings: (1) The natural environment of a certain quality is the condition for the existence and continuity of human beings. (2) It is the source for human beings to obtain various means of living and production. (3) It provides human beings with places for production, living, and various other activities. Humans can use the conditions provided by the natural environment to transform nature dynamically. The impact of such activities on the environment can be benign or malignant. The benign ones are those in which the human activities of using and transforming the natural environment are in line with the law of development of the environment itself, making the natural setting more and more conducive to human survival and growth. The malignant ones are those in which the activities of human beings using and transforming the natural environment violate the law of development of the environment itself, destroying the ecological balance and worsening the living environment of human beings. Therefore, when dealing with the relationship between human beings and the natural environment, we should develop and use the environment according to the laws of biological development, and we must establish a harmonious relationship with the environment if we want to survive and grow for a long time.

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The Role of the Environment in the Development

Human society can only develop with the natural environment on which it depends. The environment plays an indispensable and vital role in the development of human society. First, the environment provides various natural resources indispensable for human activities. It is the material basis for human production and the essential condition for the survival of multiple organisms. The environment and its constituent elements are the basis for human survival and development. We start all economic activities using various environmental elements, including energy and resources, as raw materials or power. Second, the environment absorbs and assimilates the waste and waste energy generated by human economic activities (i.e., environmental selfpurification function or environmental capacity). While economic activities provide people with the products they need, they also produce some waste. These wastes become pollutants when discharged into the environment because we cannot use them for a while due to economic and technical conditions. The process by which the environment absorbs dilutes, and transforms these wastes through various physical, chemical, biochemical, and biological reactions is called environmental self-purification. Finally, the environment provides human beings with comfortable living enjoyment. It offers material resources for economic activities and meets people’s requirements for comfort. Clean air and water are essential elements of industrial and agricultural production and are also people’s basic needs for a healthy and pleasant life. A beautiful and comfortable environment makes people relaxed, happy, physically fit, and more effective in their work. The more the economy grows, the higher the demand for environmental comfort. However, the environment’s capacity is also limited, and a large amount of wastewater, air, and solid waste is discharged into the atmosphere every year. Some of these wastes can remain stable for hundreds of years after they are released into the environment, thus causing adverse changes in global environmental conditions. At the same time, it takes time for natural resources to replenish, regenerate, and multiply, and once we exceed the limits, it is challenging, and sometimes irreversible, to recover. The environmental crisis arises mainly from the fact that human economic activities demand resources faster than they can be regenerated

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and replaced and that the amount of waste released into the environment exceeds the self-cleaning capacity of the environment. Therefore, human beings should treat nature well. 1.4

Definition and Classification of Environmental Issues

Environmental problems are changes in the structure and state of the environment that occur under natural causes or human activities that are detrimental to human survival and development. It is one of the most critical issues facing humanity today, and it is also a problem related to the sustainability of human development. We can divide environmental problems into two main categories according to the reasons for their occurrence. 1.4.1 Primary Environmental Problems Primary environmental problems, also known as first environmental problems, refer to the phenomenon that the structure and state of the environment are unfavourable to human survival and development due to natural causes. Examples are atmospheric pollution caused by volcanic eruptions or sandstorms, soil erosion caused by flash floods, etc. Such environmental problems existed before the emergence of human beings on the earth, and their occurrence, in most cases, is still a natural disaster that is difficult to foresee and prevented by human beings, which is legally called “force majeure.” 1.4.2 Secondary Environmental Problems Secondary environmental problems refer to the phenomenon that the structure and state of the environment become unfavourable to human survival and development due to the inappropriate exploitation and use of the environment by human beings. If the natural environment can be developed and utilised rationally, such environmental problems can be avoided or slowed down to a large extent. Contemporary ecological issues mainly refer to secondary environmental problems, which are also the environmental problems that environmental law aims to solve. There are some links between the secondary and first environmental problems. While the first environmental problems are primarily the result of natural forces, some are also caused or exacerbated by human activities. For example, floods, mudslides, and landslides are often the result of deforestation. Human use of fossil energy, and emissions of atmospheric

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pollutants and carbon dioxide contribute to acid rain and global warming. Therefore, what environmental law aims to prevent and solve is mainly the secondary ecological problem and the first environmental problem induced by the secondary environmental problem. Secondary environmental problems have two further manifestations. One is ecological damage, and the other is environmental pollution. Ecological damage refers to the ecological degradation caused by human activities and their environmental effects. It can reduce the quantity and quality of one or several environmental elements, thus weakening or even destroying their environmental performance and ecological balance. These manifestations are blind land reclamation, lake enclosure, sea enclosure, deforestation, overgrazing, excessive water consumption, predatory fishing and hunting, indiscriminate mining and digging, inappropriate construction of engineering projects, irrational irrigation, and so on. The consequences are water and soil erosion, land degradation, ground subsidence, forest reduction, species extinction, flooding, and deterioration of the climate and meteorological conditions, which deteriorate the quality of the environment and directly lead to decreased environmental capacity. Environmental pollution is a phenomenon in which human activity directly or indirectly discharges substances or energy into the environment over its self-purifying capacity, thereby reducing the quality of the environment and affecting the healthy survival and average growth of humans and other organisms. In environmental law, we often use environmental quality standards to define the levels or concentrations of various environmental substances suitable for the average growth and development of humans and other organisms. Thus, in a legal sense, environmental pollution means the emission of substances or energy, such as waste gas, waste water, or waste residues, into the environment from human activities in quantities, concentrations, or intensities that exceed environmental quality standards. As a result, the environment’s average material composition and structural balance are disturbed, lowering the environment quality, and endangering human survival, development, and the average growth of living organisms. Based on the nature of the substances that cause pollution, the environmental elements that are polluted, and the scope of pollution, we can classify environmental pollution into physical, chemical, and biological pollution; atmospheric, water, marine, and soil pollution; and local, regional, and global pollution.

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In most cases, the discharge of pollutants from sources causes environmental pollution. A pollution source is the source of the pollutants that cause environmental pollution and is usually a place, equipment, or device that emits harmful substances into the environment or harms the environment. According to the emission type, there are organic, inorganic, thermal, noise, radiation, and pathogenic pollution sources and mixed ones that discharge various pollutants simultaneously. According to the spatial distribution of emissions, there are point and surface sources of pollution. The former refers to pollution sources discharging pollutants into the environment centrally by the outfall. The latter refers to pollution sources in a large area, such as pollution caused by pesticides and chemical fertilisers. According to the function of human activities, pollution sources can be classified as industrial, agricultural, transport, and domestic sources. Pollutants are substances and energy that enter the environment and cause changes in the average composition and nature of the environment that are directly or indirectly harmful to humans. By nature, we can classify pollutants as chemical, physical, and biological. Pollutants can be classified as atmospheric, water, and soil according to the environmental elements affected by them. The major environmental problems facing the world today are atmospheric pollution, ozone layer depletion, climate warming, marine pollution, and scarcity of freshwater resources and water pollution, pollution by toxic chemicals and hazardous waste, land degradation, excessive deforestation and degradation, and loss of biodiversity.

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Environmental Protection Definition of Environmental Protection

Environmental protection is the general term for all actions taken by human beings to solve actual or potential environmental problems, coordinate the relationship between human beings and the environment, and ensure the sustainable development of the economy and society. The methods and means can be scientific, technological, administrative, legal, economic, social and public, publicity, and education.

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The Main Content of Environmental Protection

In the early days of the United Nations in the 1950s, people in the international community had a narrow understanding of environmental protection, usually thinking that it was only the treatment of air and water pollution and the disposal of solid waste and that it was a local issue. Since the international community proposed sustainable development in the 1980s, environmental protection has become a broad concept, and it is changing to a comprehensive and systematic one. Environmental protection is no longer only concerned with pollution. Instead, based on careful consideration of population, culture, economic development, resources, and the carrying capacity of the environment, it is adjusting the direction of productivity and scientific and technological development, revising the mode of economic operation, and controlling the population. At the same time, it also aims to reconstruct the relationship between human beings and the environment in terms of material transformation and energy transfer by the laws of ecology and the overall evolution of environmental elements so that they can be constantly harmonised and coordinated. The main content includes the following aspects: (1) Prevention and control of environmental pollution caused by production and living activities. It mainly includes prevention and control of the “three wastes” of water, gas, and sludge emitted from industrial production, as well as the pollution caused by noise, vibration, lousy odour, and electromagnetic radiation; Prevention and control of pollution from transportation activities; Prevention and control of pollution caused by toxic and harmful chemicals used in industrial and agricultural production and People’s Daily life, and the emission of smoke, dust, sewage, and rubbish from urban life. (2) Prevention of environmental damage caused by construction and development activities. It mainly includes the prevention of pollution and damage to the environment caused by the construction of water conservancy projects, railroads, highway trunk lines, port terminals, airports, and industrial projects; Prevention of damage and impact on the environment caused by the development of agricultural reclamation, coastal zones, wetlands, forest resources, and

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mineral resources; Prevention of damage and impact on the environment caused by the construction of new industrial zones and new towns. (3) Protection of the natural environment with special value. It mainly includes the protection of rare species and their habitats, the protection of unique historical sites of natural development, the protection of human heritage sites, the protection of wetlands, the protection of scenic spots, and the protection of biodiversity. In addition, environmental protection also includes the following: prevention of ozone layer depletion, prevention of climate warming, land reclamation, urban and rural planning, afforestation, control of soil erosion and desertification, control of population growth and distribution, and rational allocation of productivity. 2.3

Environmental Protection as a Basic National Policy of China

The basic state policy is a strategic response to a country’s economic and social development and is the founding policy that determines the direction of national development. Article 4 of the Environmental Protection Law of the People’s Republic of China (hereinafter, referred to as the “Environmental Protection Law”) provides that “protecting the environment is a fundamental policy of the State.” The position and role of environmental protection in our economic and social development and the reality of our environmental situation dictate that environmental protection must be our basic state policy. Factors such as our large population, the pressure on environmental resources, and the overlap between environmental issues and other social issues such as poverty also dictate that environmental protection in China must take the special normative form of a basic state policy.

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Sustainable Development, Scientific Outlook on Development, and Ecological Civilisation 3.1

Sustainable Development

In 1987, the World Commission on Environment and Development (WCED) released the report “Our Common Future,” which formally put forward the concept and model of sustainable development. “Sustainable development is the idea that to ensure humanity’s sustainable survival and development, environmental protection and socio-economic activities must be integrated comprehensively and organically.” In addition, all human activities should be organised and regulated according to the basic principles of ecological, economic, and social sustainability. The core idea is: “to meet the needs of the present without jeopardising the ability of future generations to meet their needs.” Humans “shall have the right to lead a healthy and productive life in harmony with nature.” “The right to development must be realised to equitably meet the developmental and environmental needs of present and future generations.” Sustainable development is a new economic and social development strategy. It is different from the traditional model of economic growth characterised by high inputs, high consumption, and high pollution nor is it a “zero growth” proposition that stops development. It is “development that meets the needs of the present without endangering the ability of future generations to meet their needs.” Sustainable development is a strategy and model for long-term human development from the perspective of the environment and natural resources. It is concerned with the long-term environmental carrying capacity, which makes environmental protection an essential component of sustainable development. The Rio Declaration adopted by the United Nations Conference on Environment and Development in 1992 clearly states, “To achieve sustainable development, environmental protection should be an integral part of the development process and cannot be considered in isolation from that process.” Sustainable development is the pursuit of harmony between human beings and nature. It advocates that the right of human beings to pursue a healthy and productive life should be achieved in harmony with nature, not by depleting resources, destroying ecology, and polluting the environment. It requires that, in creating and pursuing development and consumption in this world, the present generation should recognise and strive to equalise the opportunities of future

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generations with their own. The development and consumption of the present should not be pursued in a one-sided and selfish manner by the present generation in such a way as to deprive future generations of the same opportunities for development and consumption that they should reasonably enjoy. It believes that the environment and development are inextricably linked, that environmental protection without development is meaningless and that development without environmental protection is impossible, and that the ultimate goal of environmental protection is to make development more sustainable, lasting, healthier, and faster. It emphasises the need to abandon the traditional approach to development that relies solely on increased inputs and consumption to achieve development and sacrifice the environment to increase output. Economic development should be made less dependent on the earth’s limited resources and more in organic harmony with the environment’s carrying. China’s Environmental Protection Law, as amended in 2014, explicitly provides for sustainable development as a legislative objective and concept. Article 1 states: “This Law is enacted to protect and improve the environment, preventing and controlling pollution and other public hazards, safeguarding public health, advancing the construction of ecological civilisation, and promoting sustainable economic and social development.” Article 4 stipulates: “Protecting the environment is the basic state policy of the State. The State shall adopt economic and technological policies and measures conducive to the conservation and recycling of resources, the protection, and improvement of the environment, and the promotion of harmony between man and nature, to harmonize economic and social development with environmental protection.” The status of sustainable development as a guiding ideology is established in the legislation. 3.2

Scientific Development Concept

In 2003, the State put forward the concept of scientific development, which is “to adhere to a balanced and integrated approach, to put people first, to establish a comprehensive, coordinated and sustainable development concept, and to promote comprehensive economic, social and human development.” The first and foremost meaning is development, with the core being people-oriented, the essential requirement for development being comprehensive, coordinated, and sustainable, and

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the fundamental method being coordination and balance. The essential requirement of the scientific development concept is to adhere to comprehensive, coordinated, and sustainable development. That is, to comprehensively promote economic, political, cultural, and social construction, to promote the coordination of aspects of modernisation, and to promote the coordination of the relations of production with the productive forces and the superstructure with the economic base. The concept of scientific development is to adhere to the civilised development path of productive development, affluent living, and sound ecology. It is to build a resource-saving and environment-friendly society. To achieve unity between speed and structure, quality and efficiency, and to harmonise economic development with population, resources, and environment so that people can produce and live in an excellent ecological environment and achieve sustainable economic and social development. 3.3

Ecological Civilisation

Ecological civilisation refers to the sum of material and spiritual achievements made by humanity following the objective law of the harmonious development of man, nature, and society. It is a cultural and ethical form with the primary purpose of harmonious coexistence, virtuous cycle, comprehensive development, and sustainable prosperity of man and nature, man and man, and man and society. Man’s conquest of nature characterises industrial civilisation. Industrialisation in the world has brought the culture of conquering nature to its extreme. A series of global ecological crises indicate the need to create a new form of civilisation to perpetuate human existence, which is ecological civilisation. In 2007, the State propose “building an ecological civilisation, forming an industrial structure, growth pattern and consumption pattern that conserves energy and resources and protects the ecological environment.” In the face of the problematic situation of tightening resource constraints, severe environmental pollution, and degradation of the ecosystem, we must establish the ecological civilisation concept of respecting, conforming to and protecting nature. We will put the construction of ecological civilisation in a prominent position, integrate it into all aspects and the whole economic, political, cultural, and social construction, and strive to build a beautiful China and achieve sustainable development of the Chinese nation. In the relationship between man and nature, the emphasis is on isomorphism, respecting and recognising the intrinsic value of nature. Regarding

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the relationship between the ecosystem’s components, the emphasis is on wholeness, respecting and protecting the integrity and good condition of the ecosystem. In the ecological relationship between generations, the emphasis is on sustainability, respecting and protecting the ecological interests of future generations. In establishing the legal system, the emphasis is on law constraint. The legislation on environmental resources should be based on conformity with the fundamental laws of ecology, the overall evolution of environmental elements, and the laws of social development. The Constitution was amended for the fifth time on 11 March 2018. The new expression “ecological civilization” was added to the seventh paragraph of the preamble of the Constitution. It set out the following objective: “to promote the coordinated development of material, political, spiritual, social and ecological civilisation, to build our country into a modern, strong, democratic, civilised and harmoniously beautiful socialist power, and to achieve the great rejuvenation of the Chinese nation.”

CHAPTER 2

Overview of Environmental Law

1

Concepts and Characteristics of Environmental Law 1.1

The Concept of Environmental Law

China’s environmental law is a general term for the legal norms enacted or recognised by the State to regulate the protection and improvement of the environment, the rational use of natural resources, and the prevention and control of pollution and other public hazards to achieve sustainable economic and social development. This concept contains several layers of meaning: (1) Special purpose: i.e., to achieve sustainable economic and social development and harmony between man and nature. All legal norms with this common purpose can be included in the scope of environmental law. (2) Specific object of adjustment: the social relations adjusted by environmental law are the specific social relations formed by people in the process of using and protecting the environment. This social relationship consists of two main categories: the prevention and control of various pollution and public hazards and the conservation, rational exploitation, and use of natural resources.

© China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_2

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(3) A new type of normative mechanism: compared with other sectoral laws, environmental legal norms, in addition to laws enacted by the state, are in large numbers nationally recognised norms, including environmental standards, international conventions, industry norms, customs, and ethics. Moreover, in addition to relying on the guarantee of state coercive power marked by the assumption of legal responsibility, the implementation of environmental law is increasingly focused on the use of comprehensive mechanisms such as encouragement, promotion, self-regulation, publicity, and education to promote the achievement of the purpose of environmental law.

1.2

Characteristics of Environmental Law

As an independent legal sector of the modern legal system, environmental law has not only the essence and functions of general law but also its characteristics, which can be summarised in the following aspects. 1.2.1

Environmental Law Is a Combination of Ecological and Environmental Technology and Law The environment is ecologically focused, and ecology must be controlled and managed based on natural science. Therefore, environmental protection, including the adjustment of social relations of environmental protection by law, must be combined with environmental science and technology and reflect the requirements of the laws of nature, especially the laws of ecological science. These requirements are often reflected in technical regulations, environmental standards, and operating procedures. Firstly, environmental law legislation often gives legal definitions to technical terms and terminology in large numbers and directly and includes environmental technical regulations as annexes to environmental laws and regulations to give them legal effect. Secondly, environmental law enforcement and justice also require science and technology assurance. However, environmental legal and technical norms should not be equated, and environmental technical norms should not be used as a substitute for environmental legal norms.

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1.2.2 Environmental Law Is a Social Law In addition to the general nature of law, environmental law also has a distinctive characteristic of social law, which is a law for the general welfare of society. The social nature of environmental law is firstly manifested in the fact that environmental law is concerned with and regulates the protection of the public interests of society and fundamental human rights. It reflects the shared aspirations and requirements of all members of society, represents the common interests of humanity, and focuses on the legal adjustment of the social sphere. Secondly, the environment, as a common condition for the survival of all humanity, cannot be privately owned or monopolised by one individual or country. It is a law based on the interests of society and must be in the interests of society and humanity as a whole. 1.2.3 Environmental Law Is a Comprehensive Sectoral Law Environmental law protects a wide range of objects, including the natural and artificial environment, and the entire earth’s biosphere. The subjects of legal relations include citizens, legal persons, and other organisations who are subjects of law in general, the state, and even all humanity, including future generations who have not yet been born. The content of environmental law is also quite extensive. Not only is it necessary to prevent pollution of the atmosphere, water, sea, environmental noise, radioactivity, and toxic chemicals but also to protect land, forests, grasslands, water, mineral, and species resources, as well as places of scenic beauty and cultural heritage. The broad scope of environmental law, the complexity of the social relations involved, and the diversity of the instruments used determine the comprehensive nature of the legal measures adopted. The Environmental Protection Law stipulates that relevant departments and organs such as finance, education, agriculture, public security, supervisory organs, appointment and dismissal organs, and people’s courts have environmental protection responsibilities. 1.2.4

Environmental Law Is a Law with the Value of Sustainable Development The value of environmental law refers to the kind of value that it can promote for the subject’s needs. In addition to the values of fairness, justice, efficiency, and order, environmental law also has its unique values, which are reflected in the legislative purpose of modern environmental law. China’s Environmental Protection Law stipulates “to

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promote sustainable economic and social development” as the purpose of the legislation. The purpose of legislation in environmental law varies from country to country, and even in the same country, the purpose of legislation varies from time to time. Modern environmental law is based on the fundamental value of sustainable development, the core of which is the requirement to meet the needs of the present without jeopardising the ability of future generations to meet their needs. Moreover, environmental law regulates not only the relationship between man and man but also concerns and regulates the relationship between man and nature.

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The System of Environmental Law

The earliest modern regulation of environmental law in China was the “Certain Provisions on the Protection and Improvement of the Environment” issued by the State Council in August 1973, the first comprehensive administrative regulation of environmental protection in China. After the promulgation of the Law of the People’s Republic of China on Environmental Protection (for Trial Implementation) in 1979, China’s environmental legal system construction has been accelerating. A series of accompanying laws and regulations have been introduced, making environmental law one of China’s legal system’s most rapidly developing sectors. China’s environmental law system currently consists of the following seven parts. 2.1

Constitutional Provisions

The provisions on environmental protection in the Constitution are the foundations of the environmental law system and the legislative basis for various environmental laws, regulations, and systems. Such provisions in China’s constitution mainly include. 2.1.1 Ecological Civilisation as a National Goal On 11 March 2018, the 13th National People’s Congress amended the following expression in the preamble of the Constitution “to promote the coordinated development of material, political and spiritual civilisations, and build our country into a rich, strong, democratic and civilised socialist state.” It was amended to read “to promote the coordinated development of material, political, spiritual, social and ecological civilisations, to build our country into a modern, strong, democratic, harmonious and

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beautiful socialist country, and to achieve the great rejuvenation of the Chinese nation.” Ecological civilisation is written into the Constitution as a national goal. 2.1.2 Environmental Protection Duty of the State The Constitution states that it is a fundamental duty of the State to protect the environment and maintain ecological balance. Article 26 of the Constitution states: “The State shall protect and improve the living and ecological environment and prevent and control pollution and other public hazards.” This provision provides the constitutional basis for the State’s environmental protection activities and environmental legislation. 2.1.3 Citizens’ Environmental Rights and Obligations The constitutions of many countries stipulate that citizens have the right to live in a suitable living environment and the obligation to protect the environment. The Constitution of China does not directly stipulate citizens’ environmental rights and obligations. However, Article 51 makes the following provision: “In exercising their freedoms and rights, citizens of the People’s Republic of China shall not harm the state, social or collective interests, and the lawful freedoms and rights of other citizens.” This provision is the basis for citizens to claim their environmental rights and interests. It is a fundamental norm of environmental obligations to prevent individuals from abusing their rights to cause environmental pollution and ecological damage. 2.1.4 Basic Policies and Principles of Environmental Protection The Constitution states: “The State guarantees the rational use of natural resources and the protection of precious animals and plants. It is forbidden for any organisation or individual to use any means to appropriate or destroy natural resources” (Article 9). “All organisations and individuals using land must use it in a rational manner” (Article 10). These two provisions provide the constitutional basis for the protection of natural resources. 2.1.5 The State’s Duty to Build an Ecological Civilisation On 11 March 2018, the 13th National People’s Congress amended Article 89 of the Constitution, which states that the State Council shall exercise the following powers: “(6) to lead and manage economic work and urban and rural construction.” It was amended to read “(6) To

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lead and manage economic work and urban and rural construction, and the construction of ecological civilization.” It clarifies the powers and responsibilities of the State in the construction of ecological civilisation. 2.2

Comprehensive Basic Environmental Law

The Environmental Protection Law was introduced on a trial basis in 1979, formally enacted in 1989, and amended and reissued on 24 April 2014. It is a comprehensive fundamental law on environmental protection in China, which regulates the central environmental protection issues. (1) It establishes the essential tasks of environmental law: to protect and improve the environment, prevent and control pollution and other public hazards, safeguard public health, promote the construction of ecological civilisation, and promote sustainable economic and social development. (2) It specifies the objects of environmental protection: namely, the natural and artificially modified natural factors affecting human existence and development, including the atmosphere, water, sea, land, mineral deposits, forests, grasslands, wetlands, wildlife, natural relics, human relics, nature reserves, scenic spots, cities, and villages. (3) It sets out the basic principles and requirements for environmental protection. First, the basic concept of environmental protection is that protecting the environment is a national policy. The state should adopt economic and technical policies and measures that are conducive to the conservation and recycling of resources, the protection, and improvement of the environment, and the promotion of harmony between man and nature, so that economic and social development is in harmony with environmental protection. Secondly, the following principles should be adhered to protect the environment: priority of protection, prevention, comprehensive management, public participation, and responsibility of those who do damage. Third, the central systems of environmental protection include monitoring and early warning of the carrying capacity of

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environmental resources, ecological protection red line, total control of pollutants, emission permits, environmental impact assessment, joint prevention, and control across administrative regions. (4) It stipulates the essential requirements and corresponding legal obligations for protecting the ecological environment and preventing environmental pollution, such as strengthening the protection of the agricultural environment, preventing soil pollution, sanding, and soil erosion, and establishing a system of responsibility for environmental protection. (5) It stipulates the authority and tasks of environmental management agencies in supervising and managing the environment and the obligations and legal responsibilities of units and individuals to protect the environment.

2.3

Single Act on Environmental Protection

A single law on environmental protection is enacted and adopted by the Standing Committee of the National People’s Congress based on the Constitution and the Basic Law on Environmental Protection. It is directed at a specific object of protection or a specific object of pollution prevention and control, or a specific aspect of environmental protection. They include single laws on comprehensive management of environmental protection, pollution prevention and control, and the protection of natural resources. The comprehensive and administrative single laws on environmental protection include the Environmental Impact Assessment Law, the Cleaner Production Promotion Law, the Circular Economy Promotion Law, the Environmental Protection Tax Law, and the Urban and Rural Planning Law. These laws are not designed to protect a particular environmental element or resource but apply to different environmental and natural resource protection. The single law on pollution prevention and control is the most critical norm in traditional environmental protection law and is the most numerous among the single laws. Important single laws include Marine Environmental Protection Law, Water Pollution Prevention and Control Law, Air Pollution Prevention and Control Law, Environmental Noise Pollution Prevention and Control Law, Solid Waste Pollution Prevention

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and Control Law, Radioactive Pollution Prevention and Control Law, Nuclear Safety Law, and Soil Pollution Prevention and Control Law. Single laws on the protection of natural resources are the legal norms that regulate the use, management, and prevention of pollution and damage to such natural resources. Some essential laws and regulations are Water Law, Land Management Law, Fisheries Law, Mineral Resources Law, Forest Law, Grassland Law, Soil and Water Conservation Law, and Wildlife Protection Law. 2.4

Environmental Protection Norms in Other Sectoral Laws

Due to the extensive and complex nature of environmental protection, although there is a large number of specific environmental legislation, it still needs to include all social relations involving the environment in its regulation. Other sectoral laws, such as civil, criminal, administrative, economic, labour, and litigation, contain legal norms on environmental protection. They can regulate social relations involving the environment from different perspectives, thus enriching the connotation of punishment and remedy in environmental protection laws and regulations. These legal norms are also part of China’s environmental law system, as they are assigned to the appropriate level by the level of validity of the law itself, for example, the provisions of the Civil Code on liability for environmental torts and the provisions of Section 6, Chapter 6 of the Criminal Code on “Crimes against the protection of environmental resources.” 2.5

Administrative Regulations for Environmental Protection

Numerous administrative regulations on environmental protection are formulated and promulgated by the State Council. Their effectiveness is weaker than that of the Constitution and laws but higher than that of local regulations and administrative rules. Firstly, the State Council generally enacts administrative regulations to implement the laws promulgated by the NPC and its Standing Committee. Secondly, for those that have yet to be included in the legislative planning of the NPC Standing Committee or for which the legislative conditions still need to be ripe but need to be regulated urgently, administrative regulations are often enacted by the State Council first. When the conditions are ripe, they will be submitted to the Standing Committee of the NPC to enact laws. For example, after the adoption of the Marine Environmental Protection

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Law in 1982, several administrative regulations on marine environmental protection were introduced one after another. These include Regulations on the Administration of Environmental Protection in Marine Oil Exploration and Development (1983), Regulations on the Administration of Prevention and Control of Pollution of the Marine Environment by Ships (2010), Regulations on the Administration of Marine Dumping (1985), Regulations on the Administration of Prevention of Pollution of the Environment by Shipbreaking (1988) issued, amended twice in 2016 and 2017, Regulations on the Prevention and Control of Pollution Damage to the Marine Environment by Pollutants from Land-based Sources (1990), Regulations on the Prevention and Control of Pollution Damage to the Marine Environment by Coastal Engineering Construction Projects (adopted in 1990, amended three times in 2007, 2017 and 2018), Regulations on the Prevention and Control of Pollution Damage to the Marine Environment by Marine Engineering Construction Projects (issued in 2006, amended twice in 2017 and 2018). 2.6

Local Regulations and Administrative Rules for Environmental Protection

The people’s congresses and standing committees of each province, autonomous region, municipality directly under the Central Government and large municipalities with local legislative power, as well as their respective people’s governments, may, per local realities, prescribe more detailed measures for the implementation of laws and administrative regulations promulgated by the State and applicable to their regions. Local regulations can also be enacted to address the specific circumstances of the region. There are many local environmental protection laws and regulations, most of which are implementation measures for national laws and regulations. 2.7

Environmental Protection Norms in International Law

The environmental protection norms in international treaties of a general nature and specialised international environmental protection treaties in force for China, bilateral and multilateral agreements and international treaties on the protection of environmental resources to which China is a party or has concluded, as well as the domestic laws implementing these

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agreements and treaties, are also essential components of China’s environmental law system. At present, the important international treaties on environmental protection to which China is a party include the United Nations Convention on the Law of the Sea, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Vienna Convention for the Protection of the Ozone Layer, the Framework Convention on Climate Change, the Convention on Biological Diversity, and the Protocol on Environmental Protection in the Antarctic. The Constitution of China stipulates that international treaties, conventions, and protocols ratified and acceded to by China shall have the same legal effect as domestic laws.

3

Basic Principles of Environmental Law

The principles of environmental law refer to the basic guidelines for adjusting the social relations arising from protecting and improving the environment, which is set out in China’s environmental law. It aims at achieving sustainable development, applies to all environmental protection laws and regulations, permeates the entire environmental law system, reflects the essence and characteristics of environmental law, and has a general guiding role in implementing and enforcing environmental law. The nature of the fundamental principles of environmental law is that: First, it distils society’s essential judgment on the conduct and value of environmental protection and reflects the ethics at the heart of modern civilisation; Second, it is the basis of ecological legal norms or the principles and norms that are fairly stable in law; Third, it does not presuppose any definite state of facts, nor does it provide for specific rights, obligations, and responsibilities; Fourth, they are only directly binding once enacted into environmental protection law. It is an empirical process. The polluter pays principle, for example, is expressed at the level of institutional regulation in the form of a system of sewage charges, ecological compensation, and corresponding administrative penalties; Fifth, it is not a vague slogan, but a legal concept that the specific system of environmental law should follow, and its function is to

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form the legal system and guide the legal norms, specifically as follows: (1) Universal validity: legal principles are in play as long as specific legal rules are applied; (2) Direct effect: when a specific legal rule fails, the principle of “interim government” is used directly; (3) Supplementing legal loopholes; (4) Interpretative effect: Adoption of principles, interpretation, and resolution of conflicts of rules; (5) Continuing validity: Judges can administer justice by basic principles in their judicial activities. For example, Germany’s Federal Government Environmental Policy Programme from 1971 to 1976 included the principle of prevention, the polluter pays, and cooperation; The EU environmental legislation included the principle of prevention and integration; The US environmental legislation included the principle of environmental justice. In the first national conference on environmental protection held by the State Council in August 1973, China adopted the 32-character policy of “comprehensive planning, rational layout, comprehensive utilisation, turning harm into benefit, relying on the masses, taking action by everyone, protecting the environment and benefiting the people,” which was regarded as the guiding ideology and fundamental principle of environmental protection. Article 5 of the Environmental Protection Law, as amended in 2014, stipulates the five basic principles of environmental protection in China: protection first, prevention first, comprehensive treatment, public participation, and responsibility for the damage. 3.1

The Principle of Priority of Protection

3.1.1 Concept and Meaning The Environmental Protection Act 2014 states that protecting the environment should be prioritised. The principle is narrowly defined to mean that environmental protection should be considered a priority in management activities to protect the environment. In a conflict between environmental interests and other interests, priority should be given to ecological claims and decisions made in favour of environmental protection. In a broader sense, it means that the state should prioritise ecological and environmental protection when dealing with the relationship between

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economic and social development and ecological and environmental protection following the basic state policy of environmental protection and the requirement of harmonising economic and social development with environmental protection. This principle shows that resource protection is prioritised over resource exploitation in dealing with natural resources. In contrast, China’s previous environmental resource protection laws have been based on the concept and principle of giving priority to exploitation, which cannot meet the requirements of sustainable economic and social development. Conservation and exploitation are a contradiction in terms. When the two are in conflict, priority should be given to protecting the environment and natural resources per the provisions of the law. When environmental protection and economic construction conflict, priority should be given to protecting the environment when dealing with environmental issues. Economic and social development must meet the needs for environmental protection. 3.1.2 Content and Implementation The implementation of the principle of priority protection in China is first reflected in the establishment of the concept. In the new Environmental Protection Law of 2014, the principle is firstly embodied in the legislative purpose, basic state policy, environmental obligations, and governmental environmental responsibilities as stipulated in the General Provisions. It is secondly embodied in environmental management, which is specified as follows: Ecological protection shall be unified and supervised (Article 10); Environmental protection shall be incorporated into national economic and social development planning (Article 13); Economic and technological policies shall be formulated with due consideration for their impact on the environment (Article 14); Local environmental quality standards may be formulated that are stricter than the national (Article 15); Local pollutant emission standards may be formulated that are stricter than the national (Article 16), etc. Finally, it is reflected in the systems for protecting and improving the environment, such as the system for meeting environmental deadlines (Article 28); the red line system for ecological protection (Article 29); the rational exploitation of natural resources, the protection of biodiversity and the safeguarding of ecological security (Article 30); the compensation system for environmental

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protection (Article 31); and the systems for total volume control, emission permits, public monitoring and early warning, and environmental public interest litigation. 3.2

The Principle of Prevention

3.2.1 Concept and Significance The principle of prevention refers to the various measures taken by the state in environmental protection to prevent the creation and deterioration of ecological problems. Or the principle of controlling environmental pollution and damage within the limits that can maintain ecological balance to protect human health and the material wealth of society and guarantee sustainable economic and social development, and actively manage the environmental pollution and damage already caused. Traditional environmental protection is limited to the passive remediation of environmental pollution and damage consequences, with limited ex-ante regulation of ecological problems. Once the environment has been polluted and damaged, it is often complicated, and in some cases impossible, to eliminate the damage. A preventive principle is a reconstructive approach to traditional environmental protection law, reflecting active prevention and control. The behaviour to be regulated by traditional law (especially administrative law) is essentially deterministic, as are the related decisions. Rule-making and regulation of specific issues, such as penalties, permits, and coercion, require precise implementation, conclusive evidence, a clear basis for the rules, and even precise cost– benefit calculations. On the other hand, what risks and their regulation confront is uncertainty. There needs to be an accurate calculation of whether the risk exists, how big it is, how to control it, or to what extent it can be controlled. The institutional design model of traditional environmental law is regulation relief/remediation, whereas the institutional design model of modern environmental law is risk-regulation relief/remediation. The core of conventional environmental law was the exclusion of harm, i.e., the emphasis on protecting rights and interests. With risk taking the theoretical high ground, risk exclusion and prevention should become the core of environmental law, considering harm exclusion.

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3.2.2 Content and Implementation The specific requirements for implementing this principle are to establish a system of responsibility for environmental protection based on prevention by the relevant provisions of our environmental law. Take effective measures to prevent environmental pollution and damage of all kinds. Strictly control new ecological pollution and injury, and strictly implement the environmental impact assessment system and the “three simultaneous” system. Strengthen the environmental management and environmental monitoring of construction projects. Establish early warning and response plans for ecological emergencies and take enhanced precautionary measures for enterprises and institutions where significant pollution is likely to occur. 3.3

Principles of Integrated Governance

3.3.1 Concept and Significance The principle of integrated governance means that all units and individuals are obliged by law to protect the environment and to actively and effectively address environmental issues through various mechanisms and means, including administrative, market, and self-governance. It embodies the concept of consultative democracy and public governance in ecological protection. This principle is reflected in the 2014 Environmental Protection Act as follows. 1. Pluralistic governance. Article 6 states: “All units and individuals must protect the environment. Local people’s governments at all levels shall be responsible for the quality of the environment in their administrative regions. Enterprises, institutions, and other producers and operators shall prevent and reduce environmental pollution and ecological damage and bear responsibility for the damage caused by the law. Citizens should enhance their environmental protection awareness, adopt a low-carbon and frugal lifestyle, and consciously fulfil their obligations to protect the environment.” 2. Management system. The Environmental Protection Act provides a unified management system with a division of labour among departments, stipulating the environmental protection responsibilities of relevant departments and organs such as finance, education, agriculture, public security, supervisory organs, appointment and dismissal organs, and people’s courts. Article 21 stipulates that the State shall adopt policies

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and measures in finance, taxation, prices, and government procurement to encourage and support the development of environmental protection industries such as environmental protection technology and equipment, comprehensive utilisation of resources, and ecological services. Article 22 provides that enterprises, institutions, and other production operators, based on pollutant emissions in line with the statutory requirements, to reduce the emission of pollutants further, the people’s government shall adopt financial, tax, price, government procurement, and other policies and measures to encourage and support. This principle reflects the objective requirement of combining modern environmental protection with the democratic rule of law. In the early days, environmental protection was often a purely administrative act of the government, with enterprises being the object of management rather than the subject of governance, and public concern for environmental protection was limited to the perspective of the victims of pollution and the means of governance were mainly limited to administrative management and judicial trials of individual cases. This mechanism needs to meet the actual needs of environmental protection and be conducive to effectively curbing environmental pollution and ecological damage. In addition, environmental governance is an essential part of national governance capacity. Improving national governance capacity requires the more wonderful introduction of the democratic rule of law into ecological protection. Improving national governance requires greater adherence to the democratic rule of law in environmental protection. 3.3.2 Content and Implementation 1. The Plurality of Governance Subjects The 2014 Environmental Protection Act embodies a new concept and mechanism for public governance of environmental protection by the State, enterprises, and individuals. The State, enterprises, and individuals must protect the environment, and the characteristics and interrelationship between the three are: the government is responsible, enterprises are active, and individuals are conscious. Regarding subject relations, public environmental governance should include the three-dimensional partnership between government and enterprises, government and the public, and the active role of non-governmental organisations (environmental NGOs).

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The “government is responsible” addresses the fact that in the past, environmental laws were biased towards the government’s power but not its responsibility. The new environmental law has significantly strengthened the government’s environmental responsibilities, which is the focus of our environmental protection efforts. “Enterprises are active” addresses the fact that in the past, the role of business in environmental law in China was that of a passive manager, with little active involvement in environmental protection. Companies in developed Western countries are becoming more involved in environmental protection, with critical ecological standards such as ISO 14000 and environmental regulations such as legislation on the disposal of electrical and electronic waste all coming out of corporate self-regulation. In contrast, companies in China still have a long way to go in environmental protection, so they need to take the new environmental protection law as an opportunity to be more proactive in ecological protection. “Individuals are conscious ” is aimed at the current public awareness of environmental protection in China and the need to combine environmental protection with the improvement of personal cultivation and the pursuit of a civilised lifestyle. The ideal state of environmental protection is not managed but created by the conscious action of all. We should form a consensus and a code of conduct for all people that ecological protection is honourable and pollution is shameful so that we can work together to achieve environmental civilisation. 2. Diversity of Governance Approaches The particular emphasis on the use of market instruments and economic policies objectively requires a shift in government functions, stimulates the role of market mechanisms, encourages social participation, and emphasises the combination of administration, market, and public. Some innovative environmental protection systems in China, such as ecological compensation, third-party governance, emissions trading, carbon trading, corporate environmental integrity systems, green government procurement, environmental taxes, environmental liability insurance, and contract energy management, all reflect the characteristics of integrated governance. In terms of instruments, public environmental governance mechanisms include market-based mechanisms and regulatory measures at the governmental level, NGO assistance instruments

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and general instruments, and private subject governance models such as self-regulation, contractual tools, and voluntarism. 3. Comprehensive Governance Mechanism Public environmental governance involves legislation, law enforcement, justice, supervision, and other aspects of environmental affairs and is a kind of cooperative governance from “pre-planning participation” to “process participation,” “end participation,” and “behavioural participation.” Environmental protection requires the whole society to work together and cooperate to achieve systematic governance. China’s ecological law stipulates the environmental protection responsibilities of relevant departments and organs, such as finance, education, agriculture, public security, supervisory organs, appointment and dismissal organs, and people’s courts, as well as of people’s governments at all levels, environmental protection authorities and other departments. 3.4

Principles of Public Participation

3.4.1 Concept and Meaning The principle of public participation, also known as the principle of relying on the masses to protect the environment, and the principle of environmental democracy, means that the protection of the ecological environment and the exploitation of natural resources must rely on the extensive participation of the public. Environmental law establishes the qualifications of the public to participate in environmental management and protection through various statutory forms and ways, encourages the public to join the cause of environmental protection activities actively, and protects their right to supervise acts that pollute and destroy the environment by the law. The principle of public participation is a specific requirement for safeguarding environmental justice and improving environmental efficiency. For a long time, the emergence and development of environmental law in China have characteristics of administrative dominance, and the depth and breadth of public participation have needed to be improved. The principle of public participation has different specific content in the provisions of environmental laws of various countries, depending on the level of economic development of a country and the degree of democracy

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and legal system construction determined by it. The main task of public participation in China is to raise and strengthen the environmental awareness of the whole nation and the concept of environmental law and to establish an excellent social culture of protecting and improving the environment. Environmental protection is a public welfare cause that affects the people’s immediate interests and everyone’s life and health, and the development of society and the economy. Only through publicity and education to make the general public aware of the importance of environmental protection can we establish a culture of protecting the environment and everyone’s responsibility in the whole society and turn ecological protection into a conscious action of all citizens. 3.4.2 Content and Implementation The public participation function aims to empower the public with the right to know, participate and monitor the environment. In 2014, the new Environmental Protection Law added Chapter 5 on “Environmental Information Disclosure and Public Participation.” We summarise the rights of the public to participate in environmental protection as follows. 1. Citizens, legal persons, and other organisations enjoy the right to obtain environmental information and participating in and supervising ecological protection by the law, i.e., the right to environmental information. Article 53 of the new Environmental Protection Law states, “Citizens, legal persons and other organizations shall enjoy the right to obtain environmental information and to participate in and supervise environmental protection by law.” Article 54 states, “The competent environmental protection department of the State Council releases national environmental quality, key pollution source monitoring information and other major environmental information uniformly. The environmental protection authorities of the people’s governments at or above the provincial level shall regularly issue environmental status bulletins. Environmental protection authorities of people’s governments at or above the county level and other departments with environmental protection supervision and management responsibilities shall disclose information on environmental quality, environmental monitoring, environmental emergencies, environmental administrative permits, administrative penalties, and the collection and use of sewage charges by the law. The competent departments of environmental protection of local people’s governments at or above the county level and other departments with supervisory and

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administrative responsibilities for environmental protection shall record information about environmental violations of enterprises, institutions, and other production operators in the social integrity file and promptly publish the list of violators to the society.” Citizens have the right to access environmental information held by administrative organs, the right to be informed about the state of the environment, government decisions, engineering projects, etc., and the right to consult the government on relevant issues and receive timely answers. Government information disclosure is the key to citizens’ enjoyment of the right to know about the environment. Establishing a sound government information disclosure mechanism, including the authorities for information disclosure, the content of information, the degree of disclosure, the time of disclosure, the way for citizens to inquire, and the way to consult on relevant issues, should be stipulated. 2. The right to litigation. The first is the right to a judicial remedy. That is, when citizens’ environmental rights and interests are infringed, they should be able to have timely and effective access to justice and obtain judicial remedies. Citizens also have the right to legal remedy through litigation when their right to information about the environment and participation in environmental decision-making is illegally infringed. Secondly, it is the right to litigate in the environmental public interest. It means that the people’s courts should accept public interest litigation brought by eligible social organisations by the law. The competent environmental protection departments of the people’s governments at all levels and other departments with supervision and management responsibilities for environmental protection shall facilitate the participation and supervision of citizens, legal persons, and other organisations in environmental protection by the law. Article 58 of the new Environmental Protection Law stipulates that social organisations that meet the following conditions may bring a lawsuit in the people’s court against acts that pollute the environment, damage the ecology or harm the public interest of society: (1) they are registered with the civil affairs department of the people’s government at or above the district level by the law; (2) they have been exclusively engaged in public welfare activities for environmental protection for at least five consecutive years and have no record of violations. The people’s courts shall accept lawsuits filed by social organisations that meet the requirements of the preceding paragraph by the law. The social organisation bringing the case shall not make financial gain through the lawsuit.

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3. Governments at all levels and environmental protection departments must publicise environmental information and promptly release the list of enterprises that violate the environment. The competent environmental protection departments of local people’s governments at or above the county level and other departments with supervisory and administrative responsibilities for environmental protection shall record information on ecological violations by enterprises, institutions, and other production operators in their social integrity files and promptly publish the list of offenders to society. 4. Emission units must disclose their environmental information and full disclosure of the EIA report. Article 55 of the new Environmental Protection Law states: “Key emission units shall truthfully disclose to the community the names of their major pollutants, the mode of emission, the concentration and total amount of emissions, excess emissions, and the construction and operation of pollution prevention facilities to accept social supervision.” Article 56 states: “For construction projects that are required to prepare an environmental impact report according to the law, the construction units shall explain the situation to the potentially affected public at the time of preparation and fully solicit opinions.” Article 56 stipulates: “For construction projects subject to an environmental impact report by law, the construction unit shall, at the time of preparation, explain the situation to the public that may be affected and fully consult them. The department responsible for approving the environmental impact assessment document of a construction project shall, upon receipt of the environmental impact report of the construction project, make it public in full, except for matters involving state secrets and commercial secrets. If a construction project is found to have failed to consult the public adequately, the department in charge shall instruct the construction unit to consult the public.” 5. Encourage and protect citizens from reporting environmental violations. Article 57 of the new Environmental Protection Law stipulates: “Citizens, legal persons and other organizations who find that any unit or individual has polluted the environment or damaged the ecology shall have the right to report such acts to the competent department for environmental protection or other departments with supervisory and administrative responsibilities for environmental protection. Suppose citizens, legal persons, and other organizations find that the local people’s governments at all levels, the departments in charge of environmental protection of the people’s governments at or above the county level, and

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other departments in charge of environmental protection supervision and management are not performing their duties by the law. In that case, they have the right to report to their superior or supervisory organs. The organ receiving the report shall keep the relevant information of the whistleblower confidential and protect the legitimate rights and interests of the whistleblower.” 6. Right to environmental administrative hearings. China’s Environmental Impact Assessment Law provides that: “For plans that may cause adverse environmental impact and directly involve the environmental rights and interests of the public, the organ preparing the particular plan shall, before they submit the draft plan for approval, hold a discussion meeting, a hearing, or take other forms to solicit opinions from relevant units, experts and the public on the draft the environmental impact report. Except in cases where state regulations require confidentiality, for construction projects that may have a significant impact on the environment and for which the construction unit shall prepare an environmental impact report, the construction unit shall hold a demonstration meeting, a hearing, or take other forms to solicit the opinions of relevant units, experts and the public before they submit the report for approval.” China’s laws and regulations on environmental protection also protect citizens’ right to participate in environmental protection and regulate the various ways and procedures for public participation. For example, the Law on Prevention and Control of Environmental Noise Pollution and other individual environmental laws on the environmental impact report system include the opinions of the units and residents of the construction project site in the legal content of environmental protection and provide strict legal protection for the right of public participation. 3.5

Principles of Liability for Damage

3.5.1 Concept and Meaning The principle of liability for damage means that any entity or individual who causes damage to the environment and ecology must bear the corresponding legal consequences by the law. This principle refers first and foremost to Article 64 of the Environmental Protection Law: “Those who cause damage by polluting the environment and damaging the ecology shall bear tort liability by the relevant provisions of the Tort Liability Law of the People’s Republic of China.” Liability, in this context, means civil liability for damage.

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Secondly, it also includes the legal liability for violating the legal obligations of the environment and directly or indirectly causing damage to the environment and ecology, i.e., the situation stipulated in Article 6 of the Environmental Protection Law: “All units and individuals must protect the environment. Local people’s governments at all levels shall be responsible for the quality of the environment in their administrative regions. Enterprises, institutions, and other producers and operators shall prevent and reduce environmental pollution and ecological damage and shall be responsible for the damage caused by the law. Citizens should enhance their environmental protection awareness, adopt a low-carbon and frugal lifestyle, and consciously fulfil their obligations to protect the environment.” The liability for environmental damage caused is civil and includes criminal and administrative. This principle is the fullest expression of the environmental justice law that governs ecological protection. It aims to eliminate the externalisation of environmental costs, or so-called external diseconomies, seeks substantive fairness where benefits and responsibilities are aligned, and is an extension of the civil law principles that are an essential jurisprudential basis for environmental law. 3.5.2 Content and Implementation 1. “The polluter pays” means that the polluter should bear the damage caused by polluting the environment and the cost of treating the pollution, and they should not pass it on to the state and society. From an economic point of view, pollution caused by production and business activities is a cost of doing business, and it is incompatible with the principle of fairness in civil law if the operator does not bear this cost, but the state and society do. The polluter pays system has been widely recognised internationally since the 1970s and has been established as a fundamental principle of environmental protection law in many countries. The polluter pays system works mainly as an ex-post negative compensation for pollution that has already occurred, but sometimes it is not very effective, and some polluters continue to pollute even after they have paid a certain amount of sewage charges or taxes. In response to this situation, many countries have adopted a new system of polluter’s burden, namely, the punitive compensation system. This system provides that units and individuals who deliberately violate environmental laws and regulations for their benefit, causing environmental pollution or damage, are not only required to pay damages but

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also punitive damages, which are often several or dozens of times higher than the actual damage caused by their pollution. The purpose is to punish deliberate violators and to deter subsequent violators. 2. The principle of user compensation. Also known as the principle that whoever uses it compensates. It means that those who develop and utilise environmental resources shall bear the responsibility of monetary payment by the relevant provisions of the State, and compensate for the natural resources consumed, the environmental capacity occupied, and the restoration of ecological balance to establish and improve the economic compensation mechanism for the paid use of natural resources and the restoration of the ecological environment. Environmental resources are not inexhaustible public goods but scarce goods with a specific value. Its value is manifested in the reproduction capacity and scarcity of environmental resources, and the cost of alternative resources measures the value. Although the relationship between utilisation and compensation has the nature of property content in environmental protection, it is not equivalent to a civil sales relationship. Even under private ownership, the use and disposal of the environment and natural resources based on private ownership are subject to legally necessary restrictions. It is demonstrated by the so-called compensation being a monetary consideration for the environmental resources used. More importantly, the user should compensate for the labour required to regenerate or develop alternatives to the ecological resources they have used. As stipulated in the Decision of the State Council on Several Issues Concerning Environmental Protection, it is necessary to “establish and improve economic compensation mechanisms for the use of natural resources and the restoration of the ecological environment in a remunerative manner.” 3. Developer protection, also known as whoever develops, protects. It means that the units and individuals with the right to exploit the environmental resources also bear the obligation to protect them. The various ecological elements and natural resources that make up an ecosystem are interconnected and affect each other. Any exploitation may cause different forms and degrees of alteration and damage to the original environmental resources and impact the surrounding environment and ecosystem. Blind development activities can lead to the destruction of the environment and natural resources and the imbalance of ecosystems. The exploitation of natural resources must be accompanied by measures to protect the ecological environment. Developer conservation is the maintenance of the development process and subsequent remediation after development,

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which can minimise the impact of resource development on the environment and ecosystems, conserve and integrate non-renewable resources and maintain the maximum value-added capacity of renewable resources. Only by combining development and conservation can the perpetual or long-lasting use of resources, the virtuous cycle of the ecological and environmental system, and the sustainable growth of the economic system be achieved. In China, many natural resources are state-owned, and most developers are state-owned enterprises and institutions. Therefore, these institutions are legally obliged to protect environmental resources in terms of their legal status and development behaviour. For developers, not stateowned enterprises or institutions, protecting environmental resources is their legal obligation. 4. Vandals restore, also known as whoever destroys, restores. It refers to the legal responsibility of the units or individuals who cause damage to environmental resources to restore and remediate the damaged ecological resources. The provisions in this area are related to and different from the “whoever pollutes pays” and “whoever pollutes deal with it” requirements: even if the person who causes environmental pollution and damage pays, he is not automatically exempted from the responsibility of restoration and remediation. Pollution often refers to acts that harm the natural environment, while damage also includes actions that harm natural resources. The provisions on revegetation in the Grassland Law and the requirements on land reclamation in the Mineral Resources Law are specific norms of this principle. In addition, all violations of statutory obligations must be subject to corresponding legal responsibilities and consequences. Article 6 of the new environmental protection law states that “all units and individuals must protect the environment.” It means that whether it is the people’s government at all levels, or enterprises and institutions and other production operators or individuals, and regardless of whether their actions have caused civil damage consequences, as long as the fact that there is a violation of the law, and caused environmental and ecological damage consequences, they will have to bear the corresponding legal responsibility. It includes civil, criminal, and administrative liability and responsibility for self-governance statutes, morality, and discipline.

CHAPTER 3

The Primary Regimes of Environmental Law

1 Environmental Impact Assessment and the “Three Simultaneous” System 1.1

Environmental Impact Assessment (EIA) System

1.1.1 Concept and History Environmental impact assessment (EIA), is also known as environmental quality assessment. Article 2 of China’s Environmental Impact Assessment Law stipulates: “EIA, as referred to in this Law, refers to a method and system for analysing, predicting and assessing the environmental impact that may be caused by planning and construction projects after their implementation, proposing countermeasures and measures to prevent or mitigate adverse environmental impacts, and conducting follow-up monitoring.” The EIA system, on the other hand, is a system of legal rules on matters such as the scope, content, procedures, and legal consequences of EIA. This system, together with the “three simultaneous” system, is at the front end of the adjustment of environmental legal relations and fully reflects the purpose of prevention. China’s Environmental Protection Law (Trial) promulgated in 1979 established an EIA system for the first time. Since then, a series of special legislation promulgated have further specific provisions on the EIA system. These include the Marine Environmental Protection Law promulgated in 1982 (revised in 1999 and amended in 2013), the Water Pollution Prevention and Control Law promulgated in 1984 (revised in 2008), the Air Pollution Prevention and Control Law promulgated in © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_3

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1987 (revised in 2000), the Water Law promulgated in 1988 (revised in 2002), the Wildlife Protection Law promulgated in 1988 (revised in 2004 and amended in 2009), the Environmental Noise Pollution Prevention and Control Law promulgated in 1996, and the Regulations on the Management of Environmental Protection of Construction Projects deliberated and adopted by the State Council in 1998. 1.1.2 Main Elements of China’s EIA System 1. Classification of EIA There are two types of (EIA) in China: planning EIA and construction project EIA. (1) Planning EIA, i.e., EIA concerning planning, is expressly provided for in Chapter II of the Environmental Impact Assessment Law. Article 11 stipulates that for plans that may cause adverse environmental impacts and directly involve the environmental rights and interests of the public, the preparation authority shall hold a demonstration meeting or hearing, or take other forms to solicit the opinions of relevant units, experts, and the public on the draft environmental impact report before they submit it for approval, except in cases where the State stipulates that confidentiality is required. The preparation authority shall seriously consider the opinions of relevant institutions, experts, and the public on the draft environmental impact report and shall attach to the environmental impact report submitted for examination an explanation of the acceptance or non-acceptance of the opinions. The object of planning environmental assessment includes two categories. The first category is comprehensive planning, including land use planning and construction and development and uses planning for regions, watersheds, and sea areas. The second category is specialised planning, which refers to the specialised planning of industry, agriculture, animal husbandry, forestry, energy, water conservancy, transportation, urban construction, tourism, and other sectors. These include specialised plans of the relevant departments of the State Council and the people’s

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governments at or above the level of municipalities with municipal jurisdictions, and relevant departments. About the procedures for planning EIAs, Article 13 of the Environmental Impact Assessment Law stipulates that in approving a specialised draft plan, the people’s government at or above the level of the municipality with municipal jurisdiction shall, before making a decision, convene a review panel comprising representatives of relevant departments and experts by the competent ecological and environmental department designated by the people’s government to review the environmental impact report. The review panel shall submit written review opinions. The experts participating in the review panel, as provided in the preceding paragraph, shall be determined by random selection from the list of experts in the relevant specialties in the expert pool established by the regulations of the competent department of ecology and environment under the State Council. (2) EIA of construction projects. For all industrial, transportation, water conservancy, agriculture and forestry, commerce, health, culture and education, scientific research, tourism, municipal and other capital construction projects, technological transformation projects, regional development, and the introduction of construction projects that have an impact on the environment, the construction unit must prepare an environmental impact report or fill in an environmental impact report form. The Environmental Impact Assessment Law classifies and manages the EIA of construction projects according to the degree of their environmental impact. Article 27 of the Environmental Impact Assessment Law stipulates that if a project does not conform to the approved EIA document during construction or operation, the construction unit shall organise a post-evaluation of the environmental impact, take improvement measures and report to the department that approved the original EIA document and the department that approved the construction project for the record. The department that approved the original EIA document may also instruct the construction unit to conduct a post-evaluation of the environmental impact and take improvement measures. In addition, Article 14 of China’s 2014 Environmental Protection Law states that “The relevant departments of the State Council and the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government shall take full account of the

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impact on the environment and listen to the opinions of relevant parties and experts when organising the formulation of economic and technological policies.” It indicates that our policy provisions for environmental impact assessment are in their infancy. 2. Content of EIA (1) The EIA of a comprehensive plan shall analyse, predict, and evaluate the possible environmental impact caused by the implementation of the plan, propose countermeasures and measures to prevent or mitigate the adverse environmental impact, and submit it to the approval authority as part of the draft plan. (2) The EIA of a specialised plan shall include the following contents: analysis, prediction, and assessment of the possible environmental impact caused by the implementation of the plan; countermeasures and measures to prevent or mitigate the adverse environmental impact; and conclusion of the EIA. (3) The content of the EIA of a construction project includes the following seven aspects: The basic situation of the project; the investigation report on the environmental condition of the area around the project; the analysis, prediction, and assessment of the environmental impact of the project on the surrounding area; the environmental protection measures and their technical and economic justification; the economic profit and loss analysis of the project’s impact on the environment; the proposal for the implementation of environmental monitoring of the project; and the conclusion of the environmental impact assessment. In addition, construction projects involving soil and water conservation must also have a soil and water conservation plan examined and approved by the competent water administration department. (4) The contents of the environmental impact assessment form and the environmental impact registration form shall be completed per the provisions of the 1999 SEPA Notice on the Publication of the Contents

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and Format of the “Environmental Impact Report Form for Construction Projects” and the “Environmental Impact Registration Form for Construction Projects”. 1.1.3 Public Participation in EIA Except for cases where the state regulations require confidentiality, for specialised plans and construction projects that may significantly impact the environment, the construction unit shall hold a demonstration meeting or hearing, or take other forms to solicit the opinions of relevant units, experts, and the public before submitting the environmental impact assessment report for approval. The preparation authority shall seriously consider the opinions of relevant units, experts, and the public on the draft environmental impact report and shall attach to the environmental impact report submitted for examination an explanation of the acceptance or non-acceptance of the opinions. 1.2

“Three Simultaneous” System

1.2.1 The Concept of “Three Simultaneous” System The “three simultaneous” system means that all construction projects that may impact the environment must have their environmental protection facilities designed, constructed, and put into use simultaneously as the main project. Article 41 of the Environmental Protection Law stipulates that “facilities for the prevention and control of pollution in construction projects shall be designed, constructed, and put into use at the same time as the main project. The facilities for pollution prevention shall conform to the requirements of the approved environmental impact assessment documents and shall not be removed or left idle without permission.” The “three simultaneous” system is unique to China and is a critical way to control the generation of new pollution sources and realise the principle of prevention. The reference to the “three simultaneous” system first appeared in the “Certain Provisions on the Protection and Improvement of the Environment (Trial),” which was approved by the State Council in 1973 as an administrative provision for environmental management. It was established as a critical institution of environmental law in the 1979 trial of Environmental Protection Law and has been reflected in various environmental protection laws and regulations since then.

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1.2.2 Scope of Application of the “Three Simultaneous” System According to the Regulations on the Administration of Environmental Protection of Construction Projects issued in 1998 (amended in 2017), the “three simultaneous” system applies to the following projects of development and construction: • Construction, expansion, and reconstruction projects; • Technological transformation projects; • All engineering and construction projects that may cause pollution and damage to the environment; • Integrated use projects that do have economic benefits. 1.2.3

Implementation Requirements of the “Three Simultaneous” System Construction projects generally consist of three stages: design, construction, and commissioning while the “three simultaneous” system runs through the entire process of the construction project, and specific management requirements are put forward for different stages. About the design stage of construction projects, Article 16 of the Regulations on the Administration of Environmental Protection of Construction Projects stipulates: “For the preliminary design of a construction project, an environmental protection chapter shall be prepared by the requirements of the environmental protection design specifications, and measures to prevent and control environmental pollution and ecological damage, as well as investment estimates for environmental protection facilities, shall be implemented. The construction unit shall incorporate the construction of environmental protection facilities into the construction contract, ensure the progress and funding of the construction of environmental protection facilities, and organise the implementation of the environmental protection countermeasures proposed in the environmental impact report, the environmental impact report form and the approval decision of its approving department at the same time during the construction of the project.” During the construction stage of construction projects, the environment around the construction site should be protected to prevent damage to the natural environment and to prevent or mitigate pollution and harm to the surrounding living and residential areas from dust, noise, and vibration. The department in charge of the construction project is

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responsible for supervising the implementation of environmental protection measures during construction. Administrative departments in charge of environmental protection at all levels implement unified supervision and management of environmental protection in construction projects and are responsible for the inspection of construction as a way to ensure that environmental protection facilities are constructed simultaneously as the main project. Concerning the stage of acceptance and formal commissioning, Article 19 of the Regulations on the Administration of Environmental Protection of Construction Projects stipulates: “For construction projects that require the preparation of environmental impact reports and environmental impact report forms, they may not be put into production or use until the environmental protection facilities constructed in conjunction with them have been accepted and passed. If they are not accepted or fail to be accepted, they shall not be put into production or use.” Article 20 states: “The administrative department in charge of environmental protection shall supervise and inspect the design, construction, acceptance and commissioning into production or use of environmental protection facilities of construction projects, as well as the implementation of other environmental protection measures determined in the relevant environmental impact assessment documents. The administrative department in charge of environmental protection shall record information about environmental violations of the construction project in the social integrity file and promptly disclose the list of violators to society.”

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Environmental Administrative Permit (EAP) System 2.1

Overview of the (EAP) System

The environmental administrative permit system refers to a series of legal systems whereby the ecological protection administrative authorities grant or confirm the legal qualification or legal right of the applicant to engage in activities that may cause adverse environmental impact by issuing a permit or licence upon examination of the application made by the applicant by the law. The environmental administrative licensing system is an essential means of ensuring that the state environmental protection authorities effectively and legally carry out their supervisory and management functions

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of environmental protection, and is also a legal way for the administrative counterparts to obtain the relevant rights and confirm the relevant obligations in the form of a legal document. It facilitates the prior review of activities that exploit the environment and the in-event and ex-post remedy of such activities. For this reason, many countries treat the environmental administrative licensing system as the backbone of environmental law. The EAP system is also a fundamental environmental legal system in China. The Law of the People’s Republic of China on Administrative Permits (hereinafter referred to as the Administrative Permits Law, amended in 2019), which came into effect on 1 July 2004, is an essential legal basis for regulating the environmental permitting system in China. It comprehensively regulates administrative permits in terms of their setting, implementation, supervision, and liability. By the Administrative Permit Law and the Environmental Impact Assessment Law, and other laws and regulations, the competent authorities for environmental protection in China have formulated departmental regulations such as the Interim Measures for Hearing on Administrative Permits for Environmental Protection and the Measures for the Administration of Safety Permits for Radioisotopes and Radioactive Devices. It comprehensively regulates administrative permits in terms of their setting, implementation, supervision, and liability. By the Administrative Permit Law and the Environmental Impact Assessment Law, and other laws and regulations, the competent authorities for environmental protection in China have formulated departmental regulations such as the Interim Measures for Hearing of Administrative Permits for Environmental Protection and the Measures for the Administration of Safety Permits for Radioisotopes and Radioactive Devices. The written form of an environmental permit is the environmental administrative permit. The EAP system sets out the rules for the application, examination, issuance, supervision, and management of EAPs. The EAP applies to the protection of different environmental elements and the protection of different stages of development and utilisation of an environmental element. For example, the Measures for the Administration of Hazardous Waste Operation Licenses (revised in 2016), which have been in force since 1 July 2004, and the Water Pollution Prevention and Control Law propose implementing a national discharge permit system, among others. According to the content of the licenses issued, we can roughly divide China’s environmental administrative licensing system

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into three categories: the first category is the administrative license to prevent environmental pollution, which is the most critical environmental administrative license in China, such as sewage discharge license, marine dumping license, hazardous waste collection, storage, and disposal license, license for the production, use, and sale of radioisotopes and radiation devices, license for the production and operation of hazardous chemical substances; The second category is administrative permits to prevent environmental damage, such as forest harvesting license, mining license, fishing license, water extraction license, permits for licensed hunting, hunting and domestication and breeding of wild animals; The third category is administrative permits for overall environmental protection, such as construction planning license. 2.2

Setting and Implementation of EAPs

2.2.1 Setting of EAPs 1. Classification of EAPs based on nature According to the provisions of Article 12 of the Administrative Permit Law, licensing matters implemented by administrative organs can be classified into five categories: (1) The general permit category, i.e., specific activities directly related to national security, public safety, economic macro-control, protection of the ecological environment, and directly related to personal health and safety of life and property, need to be approved by the statutory conditions. (2) Licensed permission category, i.e., matters mainly involving the exploitation of limited natural resources, the allocation of public resources, and market access for specific industries directly related to the public interest, which require the granting of specific rights. (3) Accreditation, i.e., mainly the recognition of qualifications for professional skills and conditions required for the provision of public services in the field of environmental protection. (4) Approved matters, i.e., mainly matters relating to necessary equipment, facilities, products, and articles directly related to public safety, personal health, and safety of life and property, which need

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to be validated by technical standards and specifications through inspection, testing, and quarantine. (5) Registration matters, mainly for establishing enterprises or other organisations, the need to determine their subject qualifications. Article 13 of the Administrative Permit Law stipulates that administrative licensing may be dispensed with for the above-mentioned five categories of matters if they can be regulated by the following means: citizens, legal persons, or other organisations can decide on their own; the market competition mechanism can effectively regulate them; industry organisations or intermediaries can regulate themselves, and administrative organs can resolve them by other administrative means such as post-facto supervision. 2. According to the Decision of the State Council on Setting Administrative Permissions for Administrative Approval Items that Really Need to be Retained (implemented in 2004 and amended in 2009 and 2016), the State Council has retained and set a total of seven items as environmental administrative permits: (1) Qualification review of specialised operating units for environmental protection facilities; (2) Identification of designated enterprises for processing and utilising waste electrical appliances that are restricted by the State from being imported and can be used as raw materials; (3) License issuance for the design, manufacture and installation of civil nuclear pressure equipment; (4) Registration certificate issuance for the environmental management of new chemical substances; (5) Approval of transboundary movement of hazardous waste; (6) Certification of welding and inspection personnel for civil nuclear pressure equipment; (7) Registration for the environmental management of export of hazardous chemicals. 2.3

Subjects for Implementing EAPs

The subject that implements the EAPs, i.e., the organ that implements the EAPs, refers to the environmental administrative organ that exercises the right and responsibility of the EAPs and the organisation authorised by laws and regulations. According to the Administrative Permit Law and the provisions of China’s environmental laws and regulations, three kinds of organs implement EAPs in China as follows:

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(1) Administrative organs with the power to grant EAPs. The authorities with the power to grant EAPs can be broadly classified into four types. Namely, environmental protection departments at all levels, departments that implement supervision and management of relevant aspects of environmental pollution prevention and control by the law, departments that implement supervision and management of resource protection, and local people’s governments at all levels. (2) Organisations with environmental management functions authorised by laws and regulations, for example, the China Environmental Protection Industry Association, the National Petroleum and Chemical Industry Association, and the National Coal Industry Association. The state authorises these national industry associations to have the function of partially or assisting the government in the management of their industry, exercising functions such as the pre-approval of construction project assessments. These organisations also constitute the administrative licensing authorities for the EIA of construction projects. (3) Other authorities entrusted with the task.

2.4

Procedures for the Implementation of EAPs

2.4.1 Application and Acceptance The applicant submits a written application to the relevant competent authority with the documents necessary for the examination. In accepting applications for EAPs, the administrative organ shall fulfil its obligation to publicise, explain, refrain from requesting irrelevant materials, and regulate applications’ acceptance. 2.4.2 Review and Decision The competent authority for the environment may publish in the press the applications accepted, seek the views of all parties, and examine the applications by the relevant provisions. After examination, the competent authority shall decide to issue or refuse to issue a permit; if it agrees to issue a permit, it shall inform the holder of the obligations and restrictions; if it refuses to issue a permit, it shall state the reasons for the refusal.

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2.4.3 Hearings The hearing system is conducive to regulating the administrative permit activities of environmental protection, safeguarding and supervising the administration of ecological and environmental authorities by the law, improving the scientific, fairness, reasonableness, and democracy of the administrative licensing of environmental protection, and protecting the legitimate rights and interests of citizens, legal persons, and other organisations. Hence, hearing is an essential element of the environmental administrative permit procedure. The Administrative Permit Law, the Environmental Impact Assessment Law, and other relevant laws and regulations provide this. The Interim Measures for Hearings on Administrative Permit for Environmental Protection, which came into effect on 1 July 2004, further provides specific and detailed provisions on the applicable principles of hearings, the scope of application, the presiding officer and participants of hearings, hearing procedures, and penalties. 2.4.4 Supervision, Inspection, and Handling The supervision of EAPs mainly includes internal supervision by administrative organs at different levels and supervision by administrative organs on licensees. According to Article 60 of the Administrative Permit Law, higher administrative organs shall strengthen the supervision and inspection of administrative licenses by lower administrative organs and promptly correct any illegal acts in the implementation of administrative licenses. Supervision and inspection of the licensee by the environmental administrative organ should, in principle, be in writing. The administrative organ may require the permittee to provide relevant information, conduct on-site equipment inspections, monitor emissions, and issue administrative orders. The competent authority may modify the conditions initially stipulated in the permit in the event of a change in circumstances or if the licensee’s activities affect the interests of the surrounding public. If the licensee violates the obligations or restrictions stipulated in the permit, the competent authority may suspend or revoke the permit and hold the offender legally responsible.

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Environmental Standards System 3.1

Overview of Environmental Standards

Environmental standards are guidelines set by the state per environmental laws and policies to regulate activities and outcomes related to the environment, aiming to protect public health, prevent environmental pollution, and ensure ecological safety and rational use of energy and natural resources. In a broader sense, they also include autonomous environmental management standards developed by professional and industry organisations. Environmental standards are uniform, statutory, and technical regulations for essential environmental elements and are fundamental tools and instruments for environmental protection. On the one hand, they guide the objectives of environmental protection and related work and are an essential basis for formulating environmental protection regulations and plans. On the other hand, they are the basis for assessing the effectiveness of environmental protection and pollution prevention. It is reflected in the following: Firstly, environmental standards are the yardstick for judging the quality of the environment and measuring the merits of environmental protection work. Evaluating the quality of an area’s environment and the impact of an enterprise on the environment can only be meaningful if compared with environmental standards. Secondly, environmental standards are the basis for enforcement. Whether it is a lawsuit on environmental issues, collecting sewage charges, or pollution control targets, environmental standards are the basis for law enforcement. Finally, environmental standards are an essential means and condition for organising modern production. By implementing standards, it is possible to stop arbitrary emissions; motivate enterprises to manage and control pollution; adopt advanced non-polluting and less polluting processes; upgrade equipment and use resources and energy extensively. Strictly scientific methods and procedures develop environmental standards. Formulating environmental standards is also subject to the natural environmental characteristics, the level of science and technology, and the

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country’s and region’s socio-economic development at a specific time. If environmental standards are too strict, they will restrict social and economic development. If they are too lenient, they will not meet the basic requirements for environmental protection and will cause human hazards and ecological damage. Environmental standards have legal effects and are also the basis for environmental planning, management, assessment, and urban construction. 3.2

Classification of Environmental Standards

The environmental standards can be classified as follows. 3.2.1 Based on the Terms of Reference Article 15 of the Environmental Protection Law stipulates that “The competent department of the State Council for environmental protection shall be responsible for formulating national environmental quality standards. The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may formulate local environmental quality standards for items not stipulated in the national environmental quality standards. They may set stricter local environmental quality standards than national standards for items already stipulated in the national environmental quality standards. The local standards shall be reported to the competent department of the State Council for environmental protection for the record. The State encourages the development of environmental benchmarking studies.” National environmental standards are enforceable nationwide, while local environmental standards are enforceable only within the jurisdiction of the province, autonomous region, or municipality directly under the Central Government that promulgates them. Local environmental standards may be equal to the national environmental standards. According to the Ministry of Environmental Protection, as of 7 March 2011, 1,434 national environmental protection standards have been issued over the years. 3.2.2 Based on Content Article 16 of the Environmental Protection Law stipulates that “The competent department of the State Council for environmental protection shall set national pollutant emission standards by national environmental quality standards and national economic and technological conditions.

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The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may set local standards for items not stipulated in the national pollutant emission standards. They can formulate stricter local standards than national ones for items already stipulated in the national pollutant emission standards. The local pollutant emission standards shall be reported to the competent department of the State Council for environmental protection for the record.” 1. Environmental quality standards This type of environmental standard is a comprehensive regulation of the maximum permissible concentrations of various pollutants in the environment of a specific area within a limited period. It is the basis for measuring the quality of the environment, the objective of environmental policy, the basis for environmental management, and the basis for setting standards for the discharge of pollutants. China has issued the following environmental quality standards: Atmospheric Environmental Quality Standards (GB 3095–1996 instead of GB 3095–1982); Environmental quality standards for surface water (GB 3838–2002 instead of GB 3838–1988 and GB 3838–1983); Water quality standards for seawater (GB 3097–1997 instead of GB 3097–1982); Water quality standards for fisheries (GB 11,607–1989); Water quality standards for agricultural irrigation (GB 5084–1985); Environmental noise standards for urban areas (GB 3096–1982).

2. Pollutant emission standards Pollutant emission standards are national limits on the concentration or total amount of pollutants discharged into the environment from anthropogenic sources to achieve environmental quality standards or objectives by controlling the quantity of emissions from the sources. Pollutant emission standards are divided into gaseous, liquid, solid, and biological pollutant (e.g., noise) emission standards according to the form of the pollutant. Emission standards for gaseous pollutants specify

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the permissible emissions of sulphur dioxide, nitrogen oxides, carbon monoxide, hydrogen sulphide, chlorine, fluorine, and particulate matter. Emission standards for liquid pollutants specify the permissible emissions of oils, oxygen-demanding organics, toxic metal compounds, radioactive substances, and pathogens in waste water (waste liquids). Emission standards for solid pollutants specify the permissible content of hazardous substances in solid waste from landfills, dumps, and agricultural land. In addition, there are also emission standards for physical pollutants, such as noise standards. Pollutant emission standards are divided into general and sectoral standards according to their scope of application. General emission standards refer to common pollutant emission standards, while sectoral emission standards specify the permissible emissions of various pollutants emitted by an industry and are binding only on that industry. As a result, the permitted emissions of the same pollutant may vary from industry to industry. 3. Foundational standards for the environment These are environmental standards that are the basis for developing other environmental standards, such as symbols, guidelines, and guidelines that guide within the context of environmental protection work. Because of their guiding role in environmental standards, the development and validation of foundation standards have received international attention. The International Organisation for Standardisation (ISO) Technical Committee on the Environment has made foundation and methodological standards the focus of its work. China has promulgated necessary foundational standards for the environment, such as: “Environmental Protection Pictorial Signs,” “Environmental Protection Industry Standards of the People’s Republic of China,” “Technical Principles and Methods for Developing Local Emission Standards for Water Pollutants” (GB 3839-1983), and “Technical Principles and Methods for Developing Local Emission Standards for Air Pollutants” (GB 3840-1983). 3.2.3 Based on Mandatoriness Accordingly, environmental standards can be divided into mandatory and recommended ones. Environmental quality, pollutant emission, and other

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environmental standards required by laws and administrative regulations are mandatory environmental standards. Those other than mandatory environmental standards are recommended, such as the ISO 14000 international standard. The state encourages the adoption of recommended standards, and if a recommendation is cited by a mandatory one, it must also be enforced.

4 Cleaner Production and Circular Economy Systems Article 40 of the new Environmental Protection Law 2014 states, “The State shall promote cleaner production and resource recycling.” 4.1

Cleaner Production

4.1.1 Overview of Cleaner Production 1. The concept of cleaner production The United Nations Environment Programme (UNEP) defined “cleaner production” in 1989 as the sustainable application of integrated and preventive environmental strategies to production processes and products to reduce risks to humans and the environment. China’s Agenda 21 defines cleaner production as practical methods and measures that meet people’s needs while rationally using natural resources and energy, and protecting the environment. Cleaner production requires not only a pollution-free and less polluting production process, with maximum possible savings in raw materials and energy, but also a greening of the product itself, i.e., a reduction in the impact of the product on humans and the environment throughout the production cycle. It includes the non-polluting process of recycling and disposal of products at the end of their life. There is no denying that everything is relative, and there is no absolute “clean.” “Cleaner production” is also limited by the current state of technology and science, and is relative to traditional production methods and models. The direct cause of environmental pollution from traditional production processes is the predatory use of resources to obtain the final product, most of which is lost in the production process, occupies space in the form of waste, and causes pollution and ecological disorders or becomes

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a potential threat. The primary pollution source is not the pollutants but the outdated production methods and the entire production process. Cleaner production replaces the previous model of end-of-pipe pollution control with a “greening” of the entire production process. Cleaner production is a creative and continuous application of environmental prevention strategies throughout the production process and products, thus increasing the efficiency of the production process, reducing the risk of pollution to humans and the environment, and representing an advanced form of productivity. 2. Key elements of cleaner production The main elements of cleaner production include the following three aspects: (1) Rational use of natural resources That is, to obtain a maximum output with minimum input, including measures to maximise energy and raw material conservation, use of renewable energy or clean energy, use of non-toxic raw materials, reduction in the use of rare raw materials, and recycling of materials. (2) Maximising economic benefits That is, by saving resources, reducing losses, and improving efficiency and product quality, we can reduce production costs and enhance enterprises’ competitiveness. (3) Minimising environmental hazards In other words, through a series of environmental protection measures, including avoiding and reducing the use of toxic materials to the maximum extent possible, adopting waste-free and waste-saving technologies, reducing hazardous factors in the production process, focusing on waste recovery and recycling, using recyclable and biodegradable materials to complete the production and packaging of products, and improving the functions of products to achieve the minimisation of hazards to human health and the environment and the “greening of industry”.

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4.1.2 Cleaner Production Legislation in China The first local regulation on cleaner production in China, the Taiyuan Cleaner production Regulations, was promulgated in November 1999, and the Law of the People’s Republic of China on the Promotion of Cleaner production was published on 29 June 2002 and came into force on 1 January 2003 and was amended in 2012. 1. Purpose of the legislation The legislative purpose of the Cleaner Production Promotion Law is to promote the implementation of cleaner production, combining the dual nature of a policy law and an administrative law, a combination of policy and regulatory legal regulation of cleaner production. As a result, China’s cleaner production legislation emphasises the autonomy of enterprises in implementing cleaner production and focuses on the government’s guidance, encouragement, and support for cleaner production practices. This nature is reflected in the content of the legislation, which is dominated by encouraging, facilitating, and advocating legal norms to promote the implementation of cleaner production rather than by direct administrative control and sanctioning legal norms. It is to strengthen the government’s role in promoting cleaner production and dilute its administrative coercive overtones. 2. Scope of regulation Articles 2 and 3 of the Cleaner Production Promotion Law set out the scope of adjustment of our legislation on cleaner production, i.e., covering the entire range of production of products and services. On the one hand, the legislation expands the scope of cleaner production from the traditional field of industrial production to the entire field of production and services. On the other hand, to emphasise cleaner production in industrial production, the legislation makes specific provisions for it. In contrast, cleaner production in other areas is only regulated in principle. While meeting the urgent need to promote cleaner production in the industrial sector, such a provision also reflects the forward-looking nature of the law and provides a legal basis and space for the implementation of cleaner production in other areas.

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3. Basic measures and management system The Law on the Promotion of Cleaner Production provides basic measures to promote cleaner production. The State Council and local people’s governments at or above the county level shall incorporate the promotion of cleaner production into national economic and social development plans, annual plans, and plans for environmental protection, resource utilisation, industrial development, and regional development. In addition, the State encourages scientific research, technological development, and international cooperation in this area, organises the promotion and popularisation of knowledge on cleaner production and the promotion of cleaner production technologies, and encourages social organisations and the public to participate in the promotion, education, dissemination, implementation, and supervision of cleaner production. As far as the management system is concerned, the Cleaner Production Promotion Law stipulates that: First, the comprehensive coordination department of the State Council for cleaner production is responsible for organising and coordinating the promotion of cleaner production nationwide; local people’s governments at or above the county level are responsible for leading the promotion of cleaner production within their administrative regions; the comprehensive coordination department of the local people’s governments at or above the county level are responsible for organising and coordinating the promotion of cleaner production within their administrative regions. Second, the State Council’s environmental protection, industry, science and technology, finance, and other relevant departments are responsible for promoting cleaner production by their respective responsibilities. Other relevant departments of local people’s governments at or above the county level are responsible for the relevant promotion work of cleaner production by their respective responsibilities. 4. Responsibility for implementation Chapter II of the Promotion of Cleaner Production Law sets out the responsibilities of governments at all levels and their relevant departments to promote cleaner production. (1) Responsibilities of governments at all levels in promoting cleaner production

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Governments are primarily responsible for policy formulation, planning and layout, and the procurement and use of sanitary products to implement cleaner production. Governments at all levels should also give priority to the procurement of products that are conducive to the protection of the environment and resources, such as energy saving, water saving, and waste recycling, and should encourage the public to purchase and use such products. (2) Responsibilities of relevant government departments in the promotion of cleaner production The comprehensive coordination department of cleaner production is the administrative department responsible for organising and coordinating the promotion of cleaner production. Its primary responsibilities are: in conjunction with the State Council’s departments of environmental protection, industry, science and technology, and other relevant departments, according to the national economic and social development plan and the State’s requirements for saving resources, reducing energy consumption and reducing emissions of key pollutants, prepare a national clean production implementation plan for timely publication after approval by the State Council. (3) Responsibilities of other relevant departments It includes: guiding and supporting the demonstration and promotion of cleaner production technologies, incorporating cleaner production technology and management courses into the relevant education and technology training system, strengthening supervision of cleaner production implementation, publishing the list of seriously polluting enterprises regularly in major media to facilitate public participation in supervision, approving the establishment of environmental protection product labels for energy saving, water saving, and waste recycling, and setting corresponding standards and organising cleaner production and training. These relevant departments include science and technology, education, environmental protection, relevant administrative departments of people’s governments at or above the county level, relevant administrative departments of the State Council, as well as press and publication, broadcasting, film and television, culture and other units and relevant social organisations.

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5. Implementation mechanisms Chapter 3 of the Cleaner Production Promotion Law sets out the implementation requirements for cleaner production, including guiding, voluntary and mandatory requirements. Guiding requirements are advocacy for production operators to engage in cleaner production. The main content involves requirements for construction, alteration, and expansion projects, technological transformation of enterprises, and product packaging design. The corresponding advocacy requirements are also issued for the cleaner production audit: agricultural producers, service enterprises, construction works, mineral resources exploration and extraction, waste recycling and utilisation, and typical enterprises. Voluntary requirements encourage production operators to voluntarily implement cleaner production, improve the image of enterprises and their products, and accordingly are rewarded and enjoy policy preferences following relevant regulations. The main elements include voluntary agreements to conserve resources and reduce pollutant emissions and volunteer applications for environmental management system certification. Many developed countries have adopted voluntary requirements as one of the key strategies for implementing cleaner production. In addition to the promotion of cleaner production and the provision of the necessary technical support, the key to achieving excellent results depends on the availability of practical incentives. Therefore, the Cleaner Production Promotion Law has a chapter on “Incentives” to ensure that the promotion of cleaner production is carried out smoothly and effectively. Specific measures include recognition and awards, financial support, support from the SME Development Fund, tax incentives, and support for auditing and training.

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Circular Economy

Since the 1990s, circular and knowledge economies have become the two major trends in international socio-economic development. While a shift towards knowledge-based economic activities characterises the knowledge-based economy, the circular economy is characteristic of a shift towards ecological-economic activities. Since the establishment of the sustainable development strategy, more and more countries have seen the development of the circular economy and the construction of a conservation-oriented society as an important way to implement the sustainable development strategy and to realise it, precisely because of the “greening” characteristics of the circular economy. 4.2.1 The Concept of Circular Economy The circular economy is an ecological-economic model that closely integrates the economic system with environmental resources. It is an environmentally friendly economic development model based on continuous materials recycling. It requires economic operations to follow the repeated circular flow of materials in the form of “resources–products–recycled resources.” The circular economy effectively promotes the sustainable development of society and economy and is characterised by low exploitation, high utilisation, and low emissions. 4.2.2 The Three Principles of Circular Economy The circular economy has three primary rules of conduct for economic activities, also known as the 3Rs, which are the principles of Reduce, Reuse, and Recycle. The principle of reduction means reducing resource input at the source of production, requiring the use of as little raw material and energy as possible to achieve a given production or consumption purpose. It is often reflected in the need to reduce the size of products and weight, for example, by replacing heavy vehicles with lighter vehicles, pursuing more plain packaging in consumption, and choosing durable, recyclable, and biodegradable items over disposable ones to reduce waste generation. The principle of reuse aims to extend the life of a product or service. It means using items as often as possible or in as many ways as possible

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to avoid them becoming waste prematurely, resisting the proliferation of disposable items, and using standard scale design by manufacturers in production. For example, using classic scale design in electronics makes it easier to upgrade products without replacing them. In life, people can return repairable items to the market for use by others or donate items they do not use. The principle of recycling requires that products are turned back into usable resources rather than useless waste after they have fulfilled their function, generally referring to the recycling of scrap and the extensive use of waste. As consumers, we should also be more aware of the need to purchase recycled goods and contribute to promoting a circular economy. 4.2.3 Implementation Mechanism of Circular Economy The development of the circular economy is a significant national economic and social development strategy. It should follow comprehensive planning guidelines, rational layout, localisation and pragmatism, government promotion and market guidance, enterprise implementation, and public participation. Firstly, the law stipulates the government’s responsibilities for developing a circular economy: supervision, planning, support, and accountability. Secondly, the law sets out the responsibilities of enterprises and other social organisations: establishing systems, industry self-regulation, publicity, and education. Thirdly, the law stipulates the responsibilities of individuals and public participation: environmental awareness, conscious practice, monitoring, and reporting. Finally, the law provides for incentives: the establishment of special funds for the development of the circular economy, support for the arrangement of financial resources, preferential taxation, priority loans, and other credit support for industrial activities that promote the development of the circular economy, as well as preferential pricing policies, priority in government procurement, recognition, and rewards.

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Environmental Taxation System The Concept and Role of the Environmental Taxation System

The environmental taxation system refers to the legal system whereby the authorities of state tax and environmental management impose certain taxes and fees on those who emit pollutants by the provisions of the law. It includes sewage charging and the environmental tax system. 5.1.1 The Concept of the Sewage Charging System Article 43 of the 2014 Environmental Protection Law stipulates that “enterprises, institutions, and other production operators that discharge pollutants shall pay sewage charges by relevant state regulations. The sewage charges shall be used exclusively for preventing and controlling environmental pollution, and no unit or individual shall retain, misappropriate or divert them for other purposes. If the law imposes an environmental protection tax, there will no longer be an emissions charge.” The sewage charging system is a legal system that uses economic instruments to protect the environment. Since its inception in Germany at the beginning of the twentieth century, it has been adopted worldwide, providing constant pressure and stimulating innovation for further pollution abatement and technological progress, thus making it more conducive to preventive environmental policy and sustainable development. The levying of sewage charges is the most crucial economic instrument, which embodies the polluter pays principle. The specific regulations on the scope, criteria, methods, and use of sewage charges vary from country to country. A sewage charging system was provided for in China’s Environmental Protection Law (Trial) promulgated in 1979 and piloted in some cities. The earliest specific legislation was the Interim Measures for the Collection and Use of Sewage Charges promulgated by the State Council in 1982, which was replaced by the Regulations on the Collection and Use of Sewage Charges, which came into effect on 1 July 2003. The regulations set out specific provisions on the purpose, scope, and standards of the collection of sewage charges, the approval of the types and quantities of pollutants to be discharged, and the collection and use of sewage charges.

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5.1.2 The Concept of Environmental Taxation Environmental taxation is an economic instrument through which the state internalises the social costs of environmental pollution and ecological damage into production costs and market prices and then allocates environmental resources through market mechanisms. As the theory of sustainable development becomes more widely accepted by the international community, the issue of environmental protection is receiving much attention from national governments. As an essential tool and instrument used by governments to regulate social and economic life, taxation plays an increasingly important role in protecting the environment. The Law of the People’s Republic of China on Environmental Protection Tax (the “Environmental Tax Law”) was adopted in 2016 and came into effect on 1 January 2018, with amendments in 2018. In 2017, the State Council promulgated Regulations on implementing the Law of the People’s Republic of China on Environmental Protection Tax. China successfully transferred from an emissions tax to an environmental protection tax system. The Environmental Tax Law sets tax grades according to the items of the existing sewage charges. It sets the payers of sewage charges as the taxpayers of environmental protection tax (referred to as ecological tax), the emissions of pollutants payable as the basis for taxation, and the current sewage charges as the lower limit of the tax amount of environmental protection tax. Considering that the situation varies significantly from place to place, localities can increase the applicable tax amount of the taxable pollutants based on the tax rate specified in the “Environmental Protection Tax Schedule.” The socio-economic significance of environmental taxation lies in that it broadens the scope of tax regulation, plays an essential role in protecting the human living environment, and fully reflects the principles of fairness and efficiency of taxation, which is of great socio-economic significance. 5.2

Collection of Environmental Taxes

5.2.1 Taxpayers Taxpayers of environmental tax are enterprises, institutions, and other production operators who discharge taxable pollutants directly into the environment in the territory of the People’s Republic of China and other sea areas under its jurisdiction (see Article 2 of the Environmental Tax Law). However, they do not include those enterprises, institutions, and

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other production operators that discharge taxable pollutants into places established by law for the centralised treatment of sewage and domestic waste or store or dispose of solid waste in facilities or sites that meet national and local environmental protection standards. It is because they do not constitute a direct discharge of pollutants into the environment (see Article 4 of the Environmental Tax Law). 5.2.2 Taxation Objects and Scope The objects of environmental tax are air and water pollutants, solid waste, and noise (see Article 3 of the Environmental Tax Law). The specific tax items and tax amounts shall be implemented per the “Table of Environmental Protection Tax Items and Tax Amounts” attached to the Environmental Tax Law (see Article 6(1) of the Environmental Tax Law). From the implementation of the Environmental Tax Law, the environmental protection tax shall be levied under the provisions of the Law, and the sewage charge shall no longer be levied (see Article 27 of the Environmental Tax Law). The Environmental Tax Law dovetails with the current sewage charge system for the scope of levy on air and water pollutants. The Environmental Tax Law stipulates that the environmental protection tax shall be levied on the first three pollutants in descending order of pollutant equivalence for each emission outlet or no emission outlet of taxable air pollutants. The “Table of Taxable Pollutants and Equivalent Values” attached to the Environmental Tax Law distinguishes the taxable pollutants at each outlet into Class I and other water pollutants. The pollutants are ranked according to the number of pollutant equivalents from the largest to the smallest. The environmental protection tax is levied on the first five water pollutants in Category I and the first three in other categories. The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may increase the number of taxable pollutant items for the same emission outlet to the unique needs of pollutant reduction in the region. However, this is subject to the decision of the Standing Committee of the National People’s Congress at the same level and the report to the Standing Committee of the National People’s Congress and the State Council for the record (see Article 9 of the Environmental Tax Law). The specific pollution equivalent values of each taxable air pollutant and water pollutant shall be implemented per the “Table of Taxable Pollutants and

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Equivalent Values” attached to the Law (Article 8 of the Environmental Tax Law). 5.2.3 Tax Liability The current sewage charge rate is used as the lower limit of the tax amount for environmental tax. Specifically: the tax rates for air and water pollutants are 1.2 and 1.4 yuan per pollution equivalent, respectively; the tax on solid waste is 5~1,000 yuan per tonne according to different types; the tax on noise is 350~11,200 yuan per month according to the number of decibels exceeded. Meanwhile, the Law considers that some provinces and municipalities directly under the Central Government have increased their sewage charges. Some provinces, autonomous regions, and municipalities directly under the Central Government have relatively high charges. The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may take into account the environmental carrying capacity of the region, the current situation of pollutant emissions, and the requirements of economic and social-ecological development goals to put forward the determination and adjustment of the specific applicable tax amount for taxable air and water pollutants within the range of tax amounts stipulated in the “Table of Taxes for Environmental Protection” attached to the Law. The Standing Committee of the People’s Congress of the same level shall make the decision and report it to the Standing Committee of the National People’s Congress and the State Council for the record (see Article 6 of the Environmental Tax Law). 5.2.4 Tax Concessions The Environmental Tax Law provides for five tax exemptions: First, taxable pollutants emitted from agricultural production to support agricultural development; Second, taxable pollutants emitted from mobile sources such as motor vehicles, ships, and aircraft; Third, corresponding taxable pollutants emitted from urban and rural sewage centralised treatment and domestic waste centralised treatment sites established by law, which do not exceed the national and local emission standards; Fourth, taxpayers meeting the standards for extensive use of solid waste; and Fifth, other circumstances in which the State Council approves tax exemptions (Article 12 of the Environmental Tax Law). Where the taxpayer emitted taxable air pollutants or water pollutants at a concentration value lower than 50% of the national and local emission standards for pollutants, the

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environmental protection tax shall be levied at a reduced rate of 50% (see Article 13 of the Environmental Tax Law). 5.2.5 Tax Collection and Administration Taxpayers shall truthfully file tax declarations by the law and shall be responsible for the truthfulness and completeness of the declarations (Article 19); The taxation authorities shall collect and administer environmental protection tax following the law, and the competent ecological and environmental authorities shall be responsible for detecting and managing pollutants per the law (Article 14); The competent ecological and environmental authorities and the taxation authorities shall establish a tax-related information-sharing platform and an active cooperation mechanism and regularly hand over relevant tax information and other information to the competent authorities (Article 15). The Environmental Tax Law also provides for the method of determining the tax basis for taxable pollutants for environmental tax (Article 7), the method and order of calculation of taxable pollutants (Article 10), and the method of calculation of taxable amount (Article 11).

6 6.1

Environmental Accident Reporting System Concept and Significance of the Environmental Accident Reporting System

The environmental accident reporting system is also known as the environmental pollution and damage accident reporting and handling system or the reporting and handling system of environmental pollution accidents and environmental emergencies. This system stipulates that in the event of an accident or other sudden event that exposes or may expose the environment to severe pollution or damage, the person involved in the accident or event must take immediate measures, promptly inform the public whom the environmental pollution and damage may endanger, and report to the local ecological and environmental authorities and relevant departments for investigation and treatment. Environmental pollution and damage accidents are emergencies in which the environment is polluted or damaged, and public life, health, and property are endangered or threatened due to factors such as accidents or mishaps. According to the type of accident, it can be divided into water pollution, air pollution, noise and vibration hazards, solid waste

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pollution, pesticide, and toxic chemical pollution, radioactive pollution accidents, and accidents of the destruction of wildlife and nature reserves under national protection. Depending on the degree of hazard, accidents can be classified as general, relatively significant, significant, and particularly significant environmental pollution and damage accidents. Environmental pollution and damage accidents generally have the characteristics of suddenness, spread, and extreme harm. With the expansion of some industries with highly hazardous sources, the scope of environmental pollution and damage accidents becomes even wider and more harmful. According to the British Nuclear Safety Authority, after the 1980s, an average of more than two hundred serious pollution accidents occurred worldwide each year. Some parties involved in environmental accidents deliberately conceal the truth about the accident for various purposes, resulting in an artificially extended and prolonged scope of harm and ineffective control of pollution consequences that could have been avoided or mitigated in time. To prevent the recurrence of such tragedies, the system of reporting and handling pollution incidents came into being. The reporting system of environmental pollution accidents has the following significances. Firstly, the government and environmental protection supervision and management departments can grasp the situation of environmental pollution and damage accidents, identify the causes of accidents and determine the degree of harm promptly so that they can take adequate measures to prevent the spread and expansion of accidents. Secondly, the public threatened by environmental pollution and damage can take precautionary measures in advance to avoid or reduce losses and minimise the degree of harm caused by accidents. 6.2

Content of the Reporting System of Environmental Accidents

China’s Marine Environmental Protection Law, enacted in 1982, first provided for a system for reporting and dealing with environmental accidents, which was confirmed in the 1989 Environmental Protection Law and was also provided for in individual ecological protection laws such as the Water Pollution Prevention and Control Law and the Air Pollution Prevention and Control Law. The State Council also issued the National Emergency Response Plan for Environmental Emergencies in 2006 (revised in 2014).

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6.2.1 Classification of Environmental Emergencies An environmental emergency is a situation requiring an emergent measure to respond to where pollutants or toxic or hazardous substances such as radioactive substances enter the atmosphere, water bodies, soil, and other environmental media as a result of pollutant emissions or natural disasters, production safety accidents, and other factors, suddenly causing or likely to cause a decline in environmental quality and thus endangering public health and property safety, or causing ecological and environmental damage, or causing significant social impact. It mainly includes sudden environmental pollution events such as air, water, soil, and radiation. According to the severity and urgency, emergencies are divided into four levels: particularly significant (level I), significant (level II), major (level III), and general environmental events (level IV). 6.2.2

National Emergency Response Organisation System for Environmental Emergencies The organisational command structure includes the following two levels: 1. National level. The Ministry of Environmental Protection is responsible for the guidance and coordination of the response to major environmental emergencies and the daily supervision and management of environmental emergencies. The Ministry of Environmental Protection or the provincial people’s governments may report to the State Council according to the developing situation and impact of the environmental emergencies. Upon approval or on the instructions of the leading comrades of the State Council, they may set up a working group of the State Council to guide, coordinate and supervise relevant regions and departments to carry out emergency environmental incident response work. 2. Local level. Local people’s governments at or above the county level are responsible for responding to environmental emergencies within their administrative regions and specifying the appropriate organisational command structure. The people’s governments of the relevant administrative regions are jointly responsible for responding to environmental emergencies that cross administrative regions or the local people’s governments at a higher level common to the administrative regions concerned.

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6.2.3 Early Warning and Measures Article 47 of the Environmental Protection Law stipulates: “People’s governments at all levels, their relevant departments, and enterprises and institutions shall, by the provisions of the Law of the People’s Republic of China on Response to Emergencies, do an excellent job in risk control, emergency preparedness, emergency disposal, and post-event recovery in the event of an environmental emergency. People’s governments at or above the county level shall establish an early warning mechanism for public monitoring of environmental pollution and formulate early warning programmes. When the environment is polluted, and public health and environmental safety may be affected, they should promptly announce early warning information and initiate emergency measures under the law. Enterprises and institutions shall formulate plans for environmental emergencies per relevant state regulations and report them to the competent authorities for environmental protection and relevant departments for the record. In the event of a sudden environmental incident or the possibility of one, the enterprise or institution shall take immediate measures to deal with it, promptly inform the units and residents who may be endangered, and report to the competent department for environmental protection and relevant departments.” There are four warning levels for environmental emergencies according to their severity, urgency, and potential reach, with the warning levels ranging from low to high, in the order of blue, yellow, orange, and red. The local people’s government or relevant department issuing the early warning information on an environmental emergency should adjust the warning level in due course according to the development of the situation and the effectiveness of the measures taken. When it judges that an environmental emergency is unlikely to occur or that the danger has been eliminated, it shall announce the lifting of the warning and terminate the relevant measures in due course. When the local environmental protection authority studies and judges that an environmental emergency may occur, it shall promptly propose to the local people’s government at this level to issue early warning information and, at the same time, inform the relevant departments and units at the same level. Local people’s governments or relevant departments authorised by them shall promptly release early warning information to the public in their administrative regions through channels or means such as television, radio, newspapers, the Internet, mobile phone text messages, and face-to-face notification, and inform the relevant areas that may be

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affected. The competent environmental protection authorities at higher levels shall disclose the relevant information monitored that may lead to an ecological emergency promptly to the competent environmental protection authorities at the next level in the area that may be affected. The competent environmental protection authorities at higher levels should inform the next level of environmental protection authorities in the area likely to be affected by any relevant information monitored that may promptly lead to an ecological emergency. After entering the state of early warning, the local people’s government at or above the county level and relevant departments shall take the following measures: (1) Analysis and research. Organise relevant departments and agencies, professional and technical personnel, and experts to analyse and judge the early warning information promptly and predict the possible scope of impact and degree of harm. (2) Prevention and disposal. Quickly take effective disposal measures to control the first signs of an incident. Set up cautionary tips or event hazard warning signs in areas at risk. Increase the frequency of publicity using various channels to inform the public of general knowledge on risk avoidance and hazard mitigation and the necessary health protection measures to be taken. (3) Emergency preparedness. Evacuate and relocate people who may be endangered in advance and place them appropriately. Order emergency rescue teams and personnel with specific responsibilities to enter a state of standby, mobilise reserves to be ready to participate in emergency rescue and disposal work, mobilise materials and equipment needed for emergency response, and do an excellent job of emergency protection. Strengthen environmental supervision of relevant enterprises, institutions, and other production operators that may lead to environmental emergencies. (4) Public opinion guidance. Promptly and accurately release the latest developments, publish consultation telephone numbers and organise expert interpretations. Strengthen the monitoring of relevant public opinion and do an excellent job of guiding public opinion. 6.2.4 Reporting Timelines and Modalities In the event of an environmental emergency, the enterprise or other production operator involved must take countermeasures, report immediately to the local environmental protection authorities and relevant departments, and release the units and residents whom the pollution may endanger. For environmental emergencies caused by production safety accidents, safety supervision and other relevant departments should

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promptly inform the competent environmental protection department at the same level. The competent environmental protection authorities should strengthen the collection of information on environmental emergencies through various channels such as internet information monitoring and environmental pollution reporting hotlines and keep abreast of environmental emergencies. Upon receiving an information report on an environmental emergency or monitoring relevant information, the competent environmental protection department of the place where the incident occurred shall immediately verify and make a preliminary determination of the nature and type of the environmental emergency. It shall report to the competent environmental protection department at the higher level and the people’s government at the same level by the time limits, procedures, and requirements stipulated by the state and inform other relevant departments at the same level. Suppose an environmental emergency has involved or may involve neighbouring administrative regions. In that case, the people’s government or the competent department for environmental protection of the place of occurrence shall promptly notify the counterpart of the neighbouring administrative region at the same level. Local people’s governments at all levels and their competent environmental protection authorities shall report the incident at each level per the relevant regulations. They may go beyond the level when necessary. Upon receiving information that an environmental emergency has occurred or may occur across provincial administrative regions, the Ministry of Environmental Protection shall promptly notify the relevant provincial environmental protection authorities. The provincial people’s governments and the Ministry of Environmental Protection shall immediately report to the State Council the following environmental emergencies: (1) those initially judged to be particularly significant or major; (2) those that may or have triggered large-scale mass incidents; (3) those that may have international implications; (4) those caused or likely to be caused by factors outside the country; (5) other environmental emergencies that the provincial people’s governments and the Ministry of Environmental Protection consider necessary to report.

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Source and Area-Specific Protection Systems 7.1

Concept and Meaning

The source and specific area protection system refers to the legal system whereby the state implements the strictest protection for ecological and environmental sources and specific areas through environmental resource carrying capacity monitoring, early warning mechanisms, and ecological protection red lines. Ecological and environmental sources and specific areas are critical ecological function areas, ecological and environmentally sensitive, and fragile areas. The State has designated ecological protection red lines for these areas and implemented strict protection. Ecological sources and specific areas are the basis of the country’s environmental security and are often areas of greater ecological vulnerability, so they must be given the strictest protection through the law. For example, China’s Sanjiangyuan region is an important ecological source area of the country and, at the same time, the most fragile and sensitive ecological environment. Once damaged, it can exacerbate soil erosion and flooding in the middle and lower reaches of the region and is difficult to restore and manage. Another example is that large, densely populated cities are often ecologically sensitive areas that are prone to severe damage to the ecological environment and have a considerable impact, requiring strict protection. In 2013, the state proposed that “to build an ecological civilisation, we must establish a systematic and complete system of ecological civilisation; Implement the strictest system of protection at source, compensation for damage and accountability, improve the system of environmental governance and ecological restoration, and use the system to protect the ecological environment.” The 2014 Environmental Protection Law imposes strict protection at source through the establishment of systems such as monitoring and early warning of the carrying capacity of environmental resources, ecological protection red lines, and joint prevention and control across administrative regions. 7.2

Objective Identification

7.2.1 Key Ecological Function Areas Key ecological function areas play an essential role in water conservation, soil and water conservation, flood storage, wind and sand control,

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and the maintenance of biodiversity, and require joint management by the state and local governments and are subject to crucial protection and development restrictions. Protecting and managing critical ecological function areas is significant in preventing and mitigating natural disasters, coordinating watershed and regional ecological protection with economic and social development, and safeguarding national and local ecological security. 7.2.2 Ecologically Sensitive and Vulnerable Areas Ecologically sensitive and fragile areas are where various essential and sensitive conservation targets deserve protection or need to be protected as stipulated by law. The ecologically sensitive protection targets stipulated in China’s Environmental Protection Law, Marine Environmental Protection Law, Water and Soil Conservation Law, Land Management Law, and other laws include: 1. Representative of the various types of natural ecosystems; 2. The natural distribution of rare and endangered wildlife and plants; 3. Critical water-conserving areas; 4. Geological formations, famous caves and fossil distribution areas, glaciers, volcanoes, hot springs, and other natural relics with great scientific and cultural value; 5. Human relics and old and valuable trees; 6. Scenic spots and nature reserves; 7. Natural landscapes; 8. Special marine protected areas, marine nature reserves, and coastal scenic tours; 9. Aquatic resources, aquaculture farms, fish, and crab refugia; 10. Marine mudflats, coastal protection forests, scenic forests, rocks, mangroves, and coral reefs; 11. Soil and water resources, vegetation, and (sloping) wastelands; 12. Landslide hazard areas and mudslide-prone areas; 13. Protected areas of arable land and basic farmland; 14. The Ministry of Construction’s “List of Environmental Protection Categories for Construction Projects (Trial)” identifies the following areas as “Environmentally Sensitive Areas” and serves as an essential basis for classifying the level of environmental protection management for construction projects:

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(1) Areas requiring special protection: areas requiring special protection as determined by national or local laws and regulations and designated by the people’s government at or above the county level, such as water conservation areas, scenic spots, nature reserves, forest parks, national key protected cultural relics, historical and cultural conservation areas (zones), key soil erosion prevention reserves, and essential farmland conservation areas; (2) Ecologically sensitive and fragile areas: essential erosion control and key supervision areas, natural wetlands, habitats of rare animals and plants or unique habitats, natural forests, tropical rainforests, mangroves, coral reefs, fish and shrimp spawning grounds, natural fishing grounds, and essential wetlands; (3) Areas of social concern: densely populated areas, cultural and educational areas, sanatoriums, hospitals, and other areas, as well as protected areas of historical, scientific, ethnic, and cultural significance. In addition, areas where the quality of the environment no longer meets the requirements of environmental function zoning should also be regarded as environmentally sensitive zones. 15. “General Sensitive Protection Targets” in the EIA.

(1) Protection targets with ecological significance These include representative ecosystems such as wetlands, marine mudflats, mangroves, coral reefs, primary forests, natural forests, tropical rainforests, wilderness areas, and other ecosystems with high biodiversity and are representative of the region. Also included are essential protected organisms and their habitats: including flora and fauna and their habitats listed for primary and secondary protection at national and provincial levels; rare and endangered flora and fauna and their habitats listed in the Red Book; endemic and indigenous flora and fauna and their habitats; and flora and fauna and their habitats with significant economic and social value. It also includes essential fishing grounds, fish spawning grounds, baiting grounds, overwintering grounds, return routes, nature reserves, nature protection areas, and germplasm resource protection areas.

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(2) Conservation objectives with aesthetic significance. The main ones are scenic spots, forest parks and tourist resorts, natural landscapes with unique features, humanistic landscapes, ancient trees and trees, scenic forests, and scenic rocks. (3) Conservation targets of scientific and cultural significance, such as geological formations, famous caves, and fossil distribution areas; natural relics such as glaciers, volcanoes, and hot springs; rare natural things such as shell dykes; geomorphological features of geographical and social significance, such as watersheds, provincial and municipal boundaries, and other geographical landmarks. (4) Protection targets with economic value, such as water resources and water connotation areas; arable land and primary farmland protection areas; aquatic resources, farms, and other natural resources with economic significance. (5) Important ecological function areas and protection targets with social security significance. The main ones are important ecological function areas, such as river source areas, flood storage, and drainage areas; water connotation areas, wind, and sand conservation protected areas; critical areas for soil and water conservation, important fishery waters; disaster-prone areas, such as collapse, landslide, and mudslide areas (geological disaster-prone areas), high mountains, and steep slope areas in gorges. (6) Ecologically fragile areas. Ecosystems amid severe degradation may evolve into disaster-prone regions and should be treated as an essential and sensitive target, such as sand and dust storm source areas, areas of extreme and intense desertification, areas of strong and severe soil erosion, and stone desertification areas. In addition, it includes areas at the junction of land and water, such as the coast, river banks, lake shores, and coastal areas, the foothills at the junction of mountains and plains, and areas in transition, such as the agro-pastoral zone and the oasis periphery. (7) Various objects established by human beings with ecological and environmental protection significance, such as botanical gardens, zoos, rare and endangered organisms protection, breeding bases, seed bases, forest parks, urban parks, green areas, ecological demonstration areas, natural forest reserves, etc. (8) Areas and waters where the quality of the environment has been drastically degraded or where the environment no longer meets the requirements of the environmental function zoning.

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(9) Protected objects of particular concern to human society, such as schools (for young people), hospitals (for vulnerable people who are weak and sick), research, cultural and educational areas, and concentrated residential areas.

7.3

Early Warning Mechanism for Monitoring the Carrying Capacity of Environmental Resources

7.3.1 Concept and Significance 1. Environmental resources carrying capacity Environmental resource carrying capacity, also known as environmental carrying capacity or environmental endurance, refers to the limit of the ability of a region’s environment to support human social and economic activities within a certain period and under the premise of maintaining relative stability. The environment on which human beings depend for survival and development is an extensive system that provides space and carriers for human activities and resources and accommodates waste. However, the Earth has limited area and space, resources, and carrying capacity. Human activities must remain within the limits of the Earth’s carrying capacity. Most of the environmental problems that exist today result from conflicts between human activities and the environment’s carrying capacity. The impact of human socio-economic activities on the environment exceeds the limits of what the environment can support, i.e., the impact of human social behaviour on the environment exceeds the environment’s carrying capacity. The environment’s carrying capacity determines the speed and scale of economic and social development in a watershed or region. Suppose the population and economic scale of a watershed or region exceed the capacity of its ecological environment under certain conditions of social welfare and economical technology. In that case, this will lead to ecological degradation, resource depletion, and, in severe cases, unsustainable economic and social development. The capacity of environmental resources carrying capacity is a dynamic change process, affected by many factors such as population scale, development degree, urbanisation scale, industrial development, infrastructure construction, spatial layout, climate, and natural conditions. Establishing monitoring and early warning mechanisms is conducive to grasping the current resource and

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environmental carrying capacity in real-time and formulating decisionmaking deployments and relevant policies that align with the current resource and environmental situation. It is also conducive to identifying the constraints and weaknesses of the carrying capacity to supplement and strengthen it, avoiding overexploitation and breaking through the bottom line of the carrying capacity of resources and the environment. It is because once the natural environment loses its ability to recover, there will be irreversible consequences. Technological progress can increase the carrying capacity of the regional environment, as it can improve people’s management and increase the recycling rate of the waste. It can also change the structure and composition of products so that some substances that are harmful to humans can be effectively controlled, reducing the pressure on the environment caused by the activities that produce these products, and offering the possibility of eliminating pollutants. Optimising the industrial structure, shifting capital and labour-intensive industries to technology and knowledge-intensive industries to reduce the proportion of industries that cause tremendous pressure on the environment or a more rational industrial layout, as well as changing the content of human activities, can all improve the regional environmental carrying capacity. Joint social and economic development between regions is a prerequisite for each region to achieve sustainable development. Making full use of the complementary role of the environmental carrying capacity between regions, coordinating the planning of the development intensity of each region, and mobilising factors outside the region is another measure to improve the regional environmental carrying capacity, with typical cases such as joint prevention and control of air pollution. 2. Early warning mechanism for monitoring the carrying capacity of environmental resources It refers to a system for issuing warnings in advance based on surveys and evaluations of the state of environmental resources. It aims to lay the foundation for realising advanced feedback on environmental resource information and for timely arrangement and prevention of environmental resource risks through an early warning system consisting of institutions, systems, networks, and initiatives that provide timely warnings.

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Article 18 of the new Environmental Protection Law of 2014 states that “The people’s governments at or above the provincial level shall organise relevant departments or entrust professional institutions to investigate and evaluate the state of the environment and establish an early warning mechanism for monitoring the carrying capacity of environmental resources.” 7.3.2

Main Monitoring Objects of Environmental Resources Carrying Capacity Monitoring and Early Warning 1. Land resources carrying capacity

The carrying capacity of land resources refers to the limit of the scale and intensity of various human activities that land resources can carry within a specific time and space range. Land resources can provide people with arable land security, economical construction, living, and ecological space. The carrying capacity of land resources is reflected by dividing arable land, construction land, residential land, and ecological land into suitable areas. Because the total amount of land resources is constant, an increase or decrease in the area of each type of land must affect the area of other types of land, thus reducing the ability of the land to provide other services. 2. Water resources carrying capacity The water resources carrying capacity is the maximum capacity to support the social and economic development of an area under a specific historical development stage based on the foreseeable level of technical, economic, and social development, the principle of sustainable development, and the condition of maintaining the development of a virtuous cycle of ecological environment, after reasonable and optimal allocation. Water resource carrying capacity comprises two parts: water environment capacity and water supply capacity. The environmental capacity of water is the pollution-carrying capacity of water, i.e., the maximum amount of pollutants that a water body can accommodate, given certain water quality or environmental objectives. The ability of this environmental capacity to support human activities also affects the size of the carrying capacity of water resources. The supply capacity of water resources mainly refers to the part humans can use for production and life under the premise of

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ecological balance, i.e., the total amount of water resources minus the ecological water demand is the regional water supply capacity. 3. The environmental carrying capacity of energy It refers to the ability of the energy system to meet the demand for energy loads and the capacity of the energy system to develop in terms of scale, intensity, and speed that it can withstand. It is directly related to factors such as the abundance of energy resources, the degree of infrastructure development, and the system’s efficiency. If gas or wind resources are abundant, more clean and renewable energy sources can alleviate the pressure on energy and the environment. The greater the environmental protection and the higher the carrying capacity of the atmosphere, the more environmental emissions can be supported. A relative abundance of water and land resources can support a relatively large population and building construction. Generally speaking, the higher the standard of living of the people and the higher the degree of socio-economic development, the greater the supporting capacity, but the greater the energy consumption required and the greater the environmental pressure caused. 4. Environmental carrying capacity The environmental carrying capacity can be divided by elements into the carrying capacity of water, atmosphere, and soil. The environmental carrying capacity is not a fixed value. It changes over time and varies depending on the quality of the environment that people require. The main factors affecting the environmental carrying capacity of a region are the progress of science and technology, the pattern of human economic activity in the area, and factors outside the region. 7.4

Ecological Protection Red Line

7.4.1 Concept and Form A “red line” is generally a boundary that cannot be crossed and contains management requirements regarding the number, proportion, or limit of things to be controlled. We can define the ecological red line as a spatial

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boundary and management limit that must be strictly protected to maintain national ecological security, enhance ecological functions, improve environmental quality and promote the efficient use of resources. The ecological protection red line includes a baseline for ecological function protection, a bottom line for environmental quality and safety, and a top line for resource use. The ecological function safeguard baseline refers to the natural ecological space that plays a vital role in water conservation, soil and water conservation, wind and sand control, flood storage, and biodiversity protection, and supports economic and social development. The bottom line of environmental quality and safety refers to environmental management limits that must be strictly enforced to maintain the basic needs of human habitation and human health. The upper line of resource use refers to the highest requirements to promote resource and energy conservation and to guarantee the efficient use of energy, water, land, and other resources. An ecological red line is the most basic environmental protection requirement, a protective bottom line that must be adhered to maintain a certain level of ecological quality. There are generally three forms: One is the red line for a specific geographical area, such as the main functional area plan and the environmental functional area plan. Areas classified as restricted development zones and prohibited development zones mainly function as ecological barriers and ecological benefits. The second is the upper limit on the use of natural resources, such as the use of coal, which is now growing at a rate of 200 million tonnes per year; coal cannot continue to grow indefinitely in this way, and we must control the total amount of use. In addition, we must control the growth of motor vehicles in some big cities. The third, there is a cap on the total emissions of pollutants. Now the total emissions of the four primary pollutants are decreasing. However, the total emissions of some other pollutants are still increasing, and greenhouse gases are also increasing, for which a cap must be set. These three lines combine to form a complete ecological red line. According to Article 29(1) of the new Environmental Protection Law of 2014, the State has designated ecological protection red lines in critical

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ecological function areas, environmentally sensitive and fragile areas, and implemented strict protection. 7.4.2 The Significance of the Ecological Protection Red Line 1. The objective need to curb the situation of ecological and environmental degradation With the rapid industrialisation and urbanisation, China’s resource and environmental situation is becoming increasingly severe, the pressure on resource constraints continues to increase, environmental pollution continues to worsen, ecosystem degradation remains serious, ecological problems are more complex, and the trend of resource, environmental and ecological deterioration still needs to be reversed. In this context, the red line for ecological protection is designed to enforce a strict environmental protection system, promote the efficient use of resources and energy, increase the security of ecologically critical areas in China, improve ecosystem function and ecological quality, alleviate the pressure and negative impact of economic and social development and construction activities on the natural ecosystem, and promote a balance between population, resources, and the environment, and the harmonisation of economic and social benefits with ecological benefits. 2. The basic premise for optimising the national ecological security pattern The ecological security pattern is the fundamental guarantee for achieving optimal development of national land space and promoting sustainable economic and social development. Regarding ecological space protection and optimisation, China has carried out national ecological function zoning, leading function zone planning, and biodiversity conservation strategies and action plans, thereby accelerating the construction of various protected areas. Various protected areas play an essential ecological service function and play an important role in promoting the quality of human habitat and safeguarding national environmental security. Delineating ecological protection red lines is the most direct means of integrating various types of protected areas and improving the efficiency of environmental protection. It is the most effective way to strengthen

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ecological protection and scientifically construct an ecological security pattern. 3. An inevitable way to reform the environmental protection management system The red line for ecological protection is a very comprehensive and systematic project. The aim is to consider ecological and environmental protection in an integrated manner from a national level, to organically integrate the many areas of resource exploitation, environmental management, and ecological protection, and to coordinate the responsibilities and interests of the various authorities. It also aims to implement a strict ecological protection system, reform the current environmental protection management system, and establish a strict ecological protection mechanism with a clear division of labour and coordination.

CHAPTER 4

Environmental Tort and Environmental Civil Liability

1 1.1

Environmental Tort The Concept of Environmental Tort

An environmental tort is an act of polluting the environment or damaging the ecology, thus infringing on the civil rights and interests of others, such as personal and property rights and interests and environmental enjoyment. Environmental tort has become an increasingly prominent phenomenon in modern social and economic development, closely related to environmental civil liability. Environmental civil liability refers to the legal consequences borne by the subjects of environmental legal relations per the form of legal liability stipulated in Civil Law. Article 3 of the Civil Code states: “The personal rights, property rights, and other lawful rights and interests of civil subjects are protected by law and may not be infringed by any organisation or individual.” In the case of environmental civil rights and interests, although the principle of no-fault applies, it does not mean that the fault element is not taken into account. In addition, the standard request to exclude obstruction in environmental civil disputes does not require that there must be a result and fact of damage. It is because acts such as noise pollution and light pollution are also often complex to determine the result of damage, but this does not preclude the perpetrator from environmental civil liability. In contrast, the reference to civil liability for environmental torts is more accurate.

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2

Characteristics of Environmental Torts

As a unique phenomenon of infringement of rights and interests in modern society, compared with the traditional civil tort, environmental tort has the following characteristics: 1. The characteristics of the subject matter. Firstly, there is a de facto inequality in the status of the parties. While the parties to traditional torts are generally equal in status, the perpetrators of environmental torts are primarily industrial and commercial enterprises with special economic status and strength. At the same time, the victims have primarily scattered members of the general public with weak cognitive, defense, and litigation abilities. The positions of the two are, in fact, very different. Secondly, the victims of environmental torts include the present generation and future generations. The present generation may infringe on future generations’ environmental rights and interests. According to the modern theory of intergenerational equity in environmental Law, such infringement is also subject to civil liability in tort. 2. Objective characteristics. Environmental torts are broad and complex. First of all, while traditional torts generally involve the direct action of an act of aggression on the person or property of an individual victim, environmental torts have to be mediated through the environment and then act on persons and property. The targets of infringement include various elements of nature, unclaimed objects, public and private property, and persons, which are much broader than the general tort. Secondly, because of the holistic and communal nature of the environment, once an environmental tort has caused specific damage, it inevitably harms the life, health, property, and other rights and interests of an unspecified majority of people. The degree of injury is also often much more severe than those in traditional torts. 3. Characteristics in terms of content. Firstly, from a macro perspective, environmental torts have value duality. The traditional tort is a purely value-free act regarding legal norms, i.e., an illegal act with complete legal negativity, such as not paying a debt, forcibly taking other people’s property, or hurting others’ bodies. In contrast, environmental infringement, such as polluting the environment by discharging “three wastes” (waste gas, waste water, waste dregs) is often accompanied by legal production activities and may be legal regarding technical and administrative norms. Secondly, environmental infringement is continuous, potential, and unclear. Traditional infringements are mostly one-off infringements,

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and the damage is usually temporary. Environmental infringements are often continuous and recurrent. Traditional infringements are easier for victims to discover and prove, whereas environmental infringements are often not immediately discovered by victims and are often difficult to prove. In addition, some major theoretical issues concerning the content of rights and obligations in environmental Law are much more complex than general civil rights and obligations. There are many controversies, such as the issue of environmental rights.

3 Principles of the Imputation of Environmental Civil Liability Tort law has developed primarily from homomorphic revenge to consequential liability, then gradually to fault-based liability, and from a single fault-based imputation principle to a diversified imputation system such as fault-based and no-fault liability. From the provisions of China’s environmental protection legislation, the principle of the imputation of civil liability for environmental protection in China should be a dualistic imputation system of fault liability and no-fault liability. 3.1

The Principle of Fault-based Liability and Its Adjustment

The principle of fault-based liability originates from Roman Law. Its basic meaning is that the aggrieved party bears civil liability for their wrongful acts, and no-fault means no liability. The so-called fault refers to the perpetrator having a state of mind that should be blamed, including intentional and negligent forms. It is conducive to the activities of private subjects and economic activity, as it promotes the freedom of individual activity without the need to be blameworthy. This principle was regarded as the most valuable legacy of Roman Law by bourgeois civil law theory, which emphasised individual freedom. Along with freedom of contract and unlimited private rights, it became one of the three main principles of bourgeois civil Law in the nineteenth century and contributed positively to the development of the modern market economy. However, with the high social and economic development, accidents and disasters caused by various artificial torts, including environmental hazards, have become severe social problems. These torts are often characterised by the complexity of the subject of the harm, the uncertainty of the causal relationship, and the extreme difficulty in determining fault, which makes

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the principle of fault liability pale into insignificance and gives rise to the doctrine of the objective fault and the doctrine of presumption of fault. The doctrine of objective fault refers to a standard of conduct rather than a particular mental state of the perpetrator, which has been described as the duty of reasonable care owed by a “good father” or “good manager.” Failure to exercise this duty is considered negligence. The presumption of fault means that if the plaintiff claims that the defendant causes the damage and the defendant cannot prove that he or she is not at fault, the defendant should be presumed to be at fault and held civilly liable. In practice, this means that the burden of proof is reversed. The presumption of fault is more beneficial to the protection of victims. However, it still takes fault as the final argument to determine liability and cannot escape the limitations of fault-based liability. 3.2

The Application of the Principle of No-Fault Liability in Environmental Law

No-fault liability is also known as no-negligence liability. It is a dangerous liability in German Law and strict liability in common law countries. It means that the perpetrator is liable for the damage caused by his or her actions, regardless of fault, as long as the Law provides that he or she is civilly liable. Under no-fault liability, the victim is not required to prove the aggressor’s fault nor is the aggressor presumed to be at fault, nor can the aggressor plead lack of fault. No-fault liability is a new type of civil liability principle established to compensate for the inadequacy of fault liability and to address the challenges and problems posed by the new types of torts in industrialised societies. Unlike the principle of fault liability, which is limited to the traditional natural jurisprudence standard of fairness and justice, the principle of no-fault liability embodies the principle of fairness in civil Law from the perspective of balancing the interests of society as a whole. It considers different social groups’ strengths and weaknesses and seeks compensation to make amends. It reflects the modern concept of fairness and justice under the conditions of social production and is coloured by social jurisprudence. The principle of no-fault liability is commonly adopted in national environmental laws for three main reasons: Firstly, the emissions from modern industrial production make production highly dangerous. Even if an enterprise takes various safety measures, it cannot eliminate the

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risk of accidental pollution damage to others. Even if the enterprise is not at fault, it may cause environmental pollution and damage property and persons. Secondly, modern industrial production and the resulting pollution often involve complex scientific and technological issues. As the general public, it is difficult for victims to understand the causes of pollution and more challenging to obtain sufficient evidence. It is also difficult to prove the intentional negligence of the emitter. Again, the principle of no-fault is an objective requirement of the principle of fairness in civil Law. If law does not protect the victim because the perpetrator is not at fault or cannot prove his fault, this is tantamount to indulging in the exploitation of money and life. As a result, no-fault liability is fast becoming a new liability principle in current environmental law. China’s law provides for the application of fault liability and nofault liability to environmental torts, respectively. The principle of fault liability mainly applies to the protection of ecological and environmental resources, such as forest resources, land resources, and wildlife resources, as well as the protection of nature reserves, scenic spots, urban and rural environments, and other human environmental resources. While the principle of no-fault liability mainly applies to pollution prevention and control of various environmental elements, such as air pollution prevention and control, water pollution prevention and control, marine pollution prevention and control, and noise pollution prevention and control.

4 4.1

Constituent Elements and Exemptions of Environmental Civil Liability Constituent Elements of Environmental Civil Liability

Compared with general civil liability, the unique characteristics of environmental civil liability are mainly manifested in the two constituent elements of no-fault liability. 4.1.1 The Fact of Environmental Damage According to the essential requirements of the compensation function of tort law, no damage means no remedy; thus, it is the constitutive element of environmental civil liability. Environmental damage includes property damage, personal damage, and environmental enjoyment damage explicitly.

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1. Property damage It refers to damage to the property of the right holder as a result of environmental torts. For example, pollution may result in the loss of crops and livestock, the death of aquatic animals, a reduction in production, a reduction in the value of movable or immovable property, or an increase in the cost of repairs. Pollution of scenic areas, sanatoriums, and parks may reduce revenue due to a reduction in visitors. The State may also become a claimant for compensation for damage caused by pollution of State property. For example, per Article 89 of the Marine Environmental Protection Law, the person who causes marine pollution shall compensate the State for its loss. 2. Personal injury It refers to damage to a citizen’s right to life and health caused by environmental torts. It occurs mainly in the context of civil liability for environmental pollution, such as the pollution of the environment by the discharge of “three wastes” exceed the limits set in the standard, resulting in injury, disability, death, or disease of the victim. It is the most severe type of environmental damage. In many countries, punitive civil damages are applied, reflecting the strict legal protection of citizens’ right to life under modern civil Law. 3. Damage to the enjoyment of the environment It is an impairment of a citizen’s right to enjoy good environmental quality, which is related to, but not equivalent to, property damage and personal damage. The Law clearly defines property damage and personal damage, whereas the criteria for environmental enjoyment rights and interests are uncertain. However, such damage is objectively present and is the most common form of environmental tort. As economic and socio-cultural development increases, so does citizens’ demand for legal protection in this area, making it necessary for the Law to regulate it reasonably. Damage to the enjoyment of the environment usually occurs in two ways: firstly, it prevents others from enjoying their right to a suitable environment or living everyday life under the Law. For example,

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the emission of foul-smelling gases makes the surrounding area unbearable—emissions of powerful noise and vibrations that prevent residents from resting and working correctly. The second is to cause non-property damage to environmental elements, reducing their function or value. For example, pollution or damage to natural scenic areas reduces the ornamental and recreational value of the landscape. Pollution of health resorts so that they lose their healing and comfort value. Pollution or destruction of humanistic monuments to reduce or lose their scientific research value or aesthetic value. The determination of damage to the enjoyment of the environment is rather complex. In some countries, environmental rights are directly enshrined in law and can be used by victims as a basis for claims. In addition, in the absence of clear legal standards, the aforementioned principle of the doctrine of limits of tolerance can also be used as a basis for claims. 4.1.2 Causation It means that there is a direct causal link between the act of environmental damage and the fact of damage, i.e., the damage to the victim is caused by the discharge of pollutants or damage to the environment caused by the perpetrator. In many cases, especially in environmental pollution damage, it is often difficult to prove a causal link between the fact of damage and the act of damage. The reasons for this are mainly as follows: 1. While most general torts act directly on the victim, environmental torts act on the human body and property through the vehicle of the “environment”, and the causal link is not readily apparent directly and immediately. Moreover, pollutants are latent and cumulative in the environment, so the time between the polluting act and the consequences of the damage is often long and transitory. This extension in space and time makes the determination of causation extremely difficult. Many pollutants are the result of a combination of factors. For example, someone may develop lung cancer from pollution from excessive factory emissions, living near a road and breathing in too much car exhaust, or from passive smoking in the workplace. It may even be the result of a combination of these three causes of damage. Then there is the case of asthma, which can be caused by air pollution or smoking. 2. There needs to be more than the current level of science and technology to understand the nature and toxicity of various pollutants and their migration, diffusion, and transformation in the environment or to prove the causal relationship between environmental pollution and the

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consequences of damage. It requires using technical means such as environmental analysis and laboratory tests, extensive scientific and technical knowledge and specialised equipment, and considerable human and financial resources. It is a significant difficulty both for the victim and for the judiciary. For these reasons, proving direct causation by environmental science alone in environmental torts is likely to be mired in scientific controversy and fail to bring relief to victims’ claims or to stop environmental torts in time. In environmental liability regimes, this negative effect of the socalled servitude of Law to science and technology should be avoided as far as possible. For this reason, we suggest correcting environmental Law by adopting the legal approach of presumption of causation. There are three specific propositions: The first type of causation is based on the possibility of causation, which means that the victim only needs to prove that the damage caused by the infringing act is probable (the degree of probability) for causation to be presumed to exist. Alternatively, causation is presumed by proving that without the act, the result would not have occurred as a matter of probability. The second is the epidemiological (or epidemiological) theory of causation. This theory uses collective epidemiological statistics to analyse epidemiologically the causes of disease and the factors that have a more significant relationship with it. A comprehensive study is then carried out to determine four main aspects: the factor had an effect prior to the onset of the disease; the more significant the effect of the factor, the higher the rate of people with the disease (known as the quantity-effect relationship); the less significant the effect of the factor, the lower the rate or degree of people with the disease; and the conclusion that the factor is sufficient to cause the disease and can be justified by biology. The third is the doctrine of causation by circumstantial disproof, a concept initially from German civil law on evidence. When applied to environmental torts, it means that if the victim can prove some of the facts in the chain of causation, it is presumed that the remaining facts exist and the burden of proving their non-existence is on the person causing the harm. Countries with developed environmental protection systems have adopted the above methods of proof to varying degrees. For example, Japan has adopted the epidemiological approach to causation in the trial

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of all four significant public health hazards, and the Law on the Punishment of Crimes against Human Health, implemented in 1971, makes express legal provision for the presumption of causation. German and French courts can also apply a presumption of the existence of a causal link when trying environmental tort cases. 4.2

Exemptions from Environmental Civil Liability

The exclusion of liability for environmental torts, also known as the defence, refers to the exclusion of civil liability for damage caused by environmental torts, as provided in Environmental Law. The principles and elements of liability for environmental torts usually determine it. The legal provisions vary from country to country. China’s Law provides for the following exemptions from liability for environmental torts. 4.2.1 Irresistible Natural Disasters Article 89 of the Water Pollution Prevention and Control Act and Article 91 of the Marine Environment Protection Act make relevant provisions: 1. An irresistible natural disaster is different from force majeure; the former is very narrow in scope and must not be interpreted in an expanded manner; 2. An irresistible natural disaster is unforeseeable and unavoidable, whereas any natural disaster that can be foreseen or avoided cannot be a matter of exemption; 3. Even if an irresistible natural disaster has occurred, it can only be exempted if the perpetrator has taken reasonable measures and still could not avoid causing damage to the environment. There would be no exemption if the damage were caused by the failure of the perpetrator to take reasonable measures in time; 4. The perpetrator’s liability may be excluded if the damage was caused solely by an irresistible natural disaster. If this disaster was only partly responsible for causing the damage, the aggressor is not exempt from liability.

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4.2.2 The Fault of the Victim Article 96, paragraph 3 of the Water Pollution Control Act provides that the discharger is not liable for damage caused by the victim’s responsibility. If the victim is intentionally or grossly negligent in the occurrence of the damage, sufficient to show that the victim’s actions were the direct cause of the damage, i.e., that the damage is not causally related to the discharge of the discharger, the discharger is exempted from liability. However, the discharger shall prove the fault of the victim. 4.2.3 The Fault of the Third Parties Article 89 of the Marine Environmental Protection Law provides that the third party shall be liable for compensation if damage to the marine environment is caused by pollution solely through the intention or negligence of a third party. However, the person responsible shall also prove the third-party’s fault. Article 68 of the Tort Liability Law and Article 96 (4) of the Water Pollution Control Law provide that in the case of damage caused by the fault of a third party, the victim may exercise the option of claiming compensation. The victim may claim compensation from either the aggressor or the third party. Suppose the victim seeks compensation from the polluter who caused the damage. In that case, the polluter shall not refuse to pay compensation because the damage is caused by the fault of a third party but shall first pay compensation to the victim and then exercise the right of recovery from the third party. 4.2.4 Acts of War In addition to irresistible natural disasters, Article 91 of China’s Marine Environmental Protection Law also exempts those responsible for causing pollution damage to the marine environment from liability under the following two circumstances. 1. War. 2. Negligence of the authorities responsible for lighthouses or other aids to navigation in performing their duties or other negligent acts. In addition, self-defence and emergency hedge, provided for in our Civil Code as conditions for exemption from general civil liability, may also be applied to the environmental liability regime.

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It is untenable for some enterprises to use the fact that they have obtained emission permits, met emission standards, and paid emission fees to counteract victims’ requests for relief and avoid civil liability for the environment. Administrative legality is not an exemption from environmental civil liability. It is because, as a matter of jurisprudence, parties may not deprive citizens of their civil rights in exercising their administrative powers and administrative permits but should do so in a manner that protects their legitimate rights and interests. The Supreme People’s Court implemented the Interpretation of Several Issues on the Application of Law to the Trial of Environmental Tort Liability Disputes on 3 June 2015. Article 1 expressly provides: “A polluter who causes damage to the environment shall bear tort liability regardless of whether it is at fault or not. The people’s court will not support a polluter who claims he is not liable because his discharge meets national or local pollutant discharge standards.”

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Assumption of Environmental Civil Liability 5.1

Ways of Assuming Civil Liability for the Environment

Article 179 of China’s Civil Code stipulates that the main ways of assuming civil liability are: (1) stopping the infringement; (2) removing obstruction; (3) eliminating danger; (4) returning property; (5) restoring the original State; (6) repairing, reworking or replacing; (7) continuing performance; (8) compensating damages; (9) paying damages for breach of contract; (10) eliminating impact and restoring reputation; and (11) making apologies. The punitive damages provided for by Law shall comply. The ways of incurring civil liability provided for in this article may be applied separately or in combination. Some apply to contractual liability, some to tort liability, and some may apply to both. As environmental civil liability is a special tort liability, not all of these civil liabilities apply to environmental tort disputes. The assumption of environmental civil liability in China mainly includes the following ways. 5.1.1 Exclusion of Harm Exclusion of harm in environmental Law is a form of civil liability in which the State compels a person who has caused or is likely to cause environmental harm to exclude the harm that may occur or to stop the harm

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that has occurred and to eliminate its effects. It includes excluding environmental pollution hazards that have already occurred and excluding environmental pollution hazards that may occur. It should include three specific meanings: 1. Eliminating and treating the pollution already caused so that it will not continue to harm others; 2. Setting up or strengthening measures and equipment to prevent pollution; 3. Stopping the ongoing polluting behaviour. 5.1.2 Compensation for Damage Compensation for damages in environmental law is a form of civil liability in which the State forces the polluter to make good the damage caused to others with its property. It is the most common and purest form of civil liability for environmental damage. According to the current legislation and judicial practice in China, the scope of compensation for environmental damage includes the following: 1. Direct losses Direct loss refers to the reduction or loss of the victim’s property as a direct result of an environmental hazard. It also includes medical expenses and travel expenses for medical treatment caused by environmental hazards to the person. For direct damage, the perpetrator shall pay total compensation. In addition, a direct loss is for the direct victim of the damage and does not include the indirect recipient of the damage. For example, if the sewage caused the farmers to lose their grain harvest, and the farmers had signed a grain purchase contract with the grain purchase unit beforehand, the direct victim of the damage is the farmers. The farmer can claim compensation, whereas the grain buyer, as an indirect recipient of the loss, cannot claim against the perpetrator of the environmental harm. 2. Indirect losses Indirect loss is the loss of the expected benefits to damage to the victim’s property or person caused by hazard. For example, if sewage causes the death of seedlings, the input of the melon farmer’s seedlings

the victim due to an environmental a melon farmer’s and fertiliser is a

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direct loss. In contrast, the loss of expected proceeds from the sale of melons due to crop failure is indirect. It also includes personal injuries caused by environmental hazards and lost wage income during treatment. In principle, indirect losses should also be fully compensated. In addition, environmental hazards may also cause moral damage to the victim. It includes the tremendous mental suffering of the victim’s relatives as a result of the victim’s death from severe pollution, as well as the victim’s disability caused by the environmental hazards or the mental suffering of citizens whose rights and interests to enjoy the environment have been damaged. Local courts have ruled on moral damages in environmental tort cases. On 8 March 2001, the Supreme People’s Court issued the Explanation on Several Issues Concerning the Determination of Liability for Moral Damage in Civil Tort, which provides more specific provisions on the compensation for moral damage in China. This provision can also apply to compensation for moral damage arising from environmental torts. In addition to the two forms of civil liability, namely, the exclusion of harm and compensation for damage, the “restitution” provided in our Civil Code can also be included in the forms of civil liability for the environment. “Restitution as a form of civil liability requires that restoration is necessary and possible.” Restitution can be applied primarily to torts that damage resources, but also to acts that pollute the environment, as restitution is more likely to achieve the purpose of protecting the environment. In addition, “return of property” can be applied in environmental tort disputes. For example, Article 78 of China’s Land Management Law provides that if a rural villager illegally occupies land for the construction of a residence, the villager shall return the illegally occupied land. The Forestry Law, the Wildlife Protection Law, and other laws and regulations also contain similar provisions on the return of property. 5.2

Joint Tort

Joint environmental tort refers to the acts of two or more civil subjects that jointly cause damage to others or lead to the danger of causing damage to others, which may also be called compound pollution or compound public hazard. Article 1169 of China’s Civil Code provides that where two or more persons jointly commit a tort causing damage

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to another person, they shall be jointly and severally liable. This provision is also applicable to environmental tort disputes. The core of joint infringement lies in Joint and Several Liabilities, which aims to expand the scope of responsible persons and enhance the protection of victims. For the determination of joint infringement, it is not necessary to find that the infringing parties have joint infringement intentionally or negligently, as this is unlikely and unnecessary. The victim can establish joint tort liability of the emitter by proving the following facts: that there was damage, that two or more sources nearby both continuously emitted pollutants, and that common or mixed emission components can be identified in the victim or the victim’s body. Once a joint environmental tort has been established, the victim does not have to determine the proportion of emissions and the proportion of liability of the perpetrators and can hold any tortfeasor fully liable for the tort first. The first to assume entire liability may hold the other tortfeasors liable in proportion to their tort liability. If the proportion of infringement cannot be determined, then the joint infringers may be held equally liable.

6

Remedies for Environmental Torts

Generally speaking, there are four main ways to resolve civil disputes: self-negotiation, mediation, arbitration, and litigation. As civil tort, environmental torts can also be resolved in these ways. 6.1

Self-Negotiation

Self-negotiation means that the tortfeasor and the victim reach an agreement on their own in the spirit of fairness and proper settlement of environmental tort disputes and consciously fulfil their obligations under the agreement. Self-negotiation helps to alleviate conflicts between the two parties, and the two parties can reach an agreement on the attribution and assumption of responsibility in a peaceful manner, which helps the smooth implementation of the agreement. Several laws in China recognises the settlement of civil disputes by negotiation between the parties. For example, Article 14(1) of the Land Administration Law (2019) provides that the parties shall settle disputes concerning the ownership and use of land through consultation; if consultation fails, the People’s Government shall deal with them. According to Article 39 of China’s Law

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on the Protection of Consumer Rights and Interests, when a dispute over consumer rights and interests arises between a consumer and an operator, the first way to resolve the dispute is through negotiation between the parties. Any dispute that the parties can settle by negotiation should be settled by negotiation as far as possible, which also contributes to establishing a harmonious society. The settlement of disputes by negotiation should be on the premise that it is law-abiding, voluntary, fair, and reasonable. The content of the agreement should be an expression of the true intentions of both parties. Neither party, especially the party in a strong position as the infringer, shall use coercion to force the other party to reach an unequal and involuntary agreement. At the same time, our Law provides that an agreement reached by mutual agreement shall not be enforceable. If one party reneges on an agreement, it may refuse to enforce it, and the other party is entitled to bring an action. 6.2

Mediation

Mediation is a method of dispute resolution in which the parties, in the event of a dispute, ask a disinterested third party to mediate and reach an agreement to resolve the conflict and implement it consciously. Mediation can be divided into administrative and judicial mediation, depending on the subject of the mediation. Administrative mediation refers to mediation conducted under the auspices of administrative authorities. Like people’s mediation, it is a form of extra-judicial mediation. In resolving environmental disputes, administrative mediation should also comply with the Law and the principles of voluntariness and fairness. Mediation agreements are also not enforceable, and therefore, parties who do not want to mediate, fail to mediate, or regret can sue in the People’s Court. The competent environmental protection administrative department or other departments exercising environmental supervision and management by the Law may, at the request of the parties concerned, mediate in a civil environmental dispute based on ascertaining the facts and distinguishing responsibilities and seek to reach an agreement on the liability and amount of compensation for environmental damage. However, this is neither an administrative ruling nor an administrative decision and is not binding or enforceable on the parties. If a party is not satisfied with the outcome of the mediation, it may take the case to the People’s Court.

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Of course, it is also possible to sue directly without administrative mediation. If the parties decide to sue, they should bring a civil action with the other party as the defendant, but not with the environmental protection administrative department that made the mediation proposal. The court will still hear the case as a civil dispute. Judicial mediation is litigation mediation conducted by the people’s courts. Mediation agreements made by the People’s Court following the principles of voluntariness and fairness and under the Law are enforceable. If one party fails to perform, the other party may apply to the court for compulsory enforcement. According to China’s Arbitration Law, arbitration mediation has the same effect as court mediation. 6.3

Arbitration

Arbitration means that the parties to a civil dispute submit the civil dispute to an arbitration institution chosen by both parties for adjudication and settlement of the dispute per a prior or subsequent arbitration agreement. China currently has neither arbitration legislation nor an arbitration institution for environmental disputes except maritime disputes. Moreover, in practice, the arbitration committees established in various parts of China have yet to include domestic environmental disputes in the matters accepted for arbitration. Some disputes over compensation for environmental pollution damage may be foreign-related, such as disputes over compensation from ships, offshore oil development, and exploration, or other maritime disputes arising from pollution. Parties to such disputes with a prior or subsequent written arbitration agreement can only submit the dispute to arbitration by a foreign-related arbitration institution and cannot initiate litigation. 6.4

Litigation

Under Chinese Law, self-negotiation, mediation, and arbitration to resolve environmental tort disputes are not prerequisite for initiating litigation proceedings. The parties may bring a civil environmental lawsuit directly to the court without going through negotiation, mediation, or arbitration. A civil action for environmental infringement is a civil action brought by a victim of environmental infringement to the people’s court to protect his or her personal and property rights and interests under the conditions and procedures in the civil action. This type of litigation is conducted per the conditions and procedures in the Civil Procedure Law.

CHAPTER 5

Overview of Environmental Pollution Prevention and Control Law

1

Overview of Environmental Pollution 1.1

The Concept of Environmental Pollution

There are generally two main environmental problems: environmental pollution and ecological damage. Thus the prevention and control of pollution are one of the two main tasks of environmental protection. Because environmental pollution and other public hazards are more direct and visible than ecological damage to environmental resources and human health, and because environmental pollution is often the direct cause of ecological damage, modern environmental protection in all countries has its origins directly in treating environmental pollution. It is also the case in China. Environmental pollution is the discharge of substances or energy into the environment by human beings in production and living activities that exceed the environment’s self-purifying capacity. It causes the environment’s chemical, physical, and biological properties to mutate, resulting in a decline in environmental quality, disrupting the ecological balance, or endangering the everyday survival and development of human beings. Another concept closely related to environmental pollution is “public hazard.” A public hazard is a social hazard to the human environment caused by environmental pollution. Environmental pollution can absorb the concept of a public hazard. The environmental pollution listed in the Environmental Protection Law refers to the pollution of environmental elements such as waste gas, © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_5

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wastewater, waste residue, waste heat, dust, malodorous gases, radioactive substances produced by people during production, construction, or other activities, and also includes the hazards of noise, vibration, electromagnetic radiation to human bodies through environmental media. Other public hazards refers to public hazards other than the above-mentioned environmental pollution and hazards that have not yet emerged and may emerge in the future or that environmental protection law does not cover. 1.2

Types of Environmental Pollution

In production and other activities, human beings create material and cultural wealth, enriching their material and spiritual lives and providing conditions for their survival and development. On the other hand, they also produce many pollutants such as waste gas, wastewater, sludge, dust, foul-smelling gases, radioactive substances, noise, vibration, electromagnetic radiation, and waste heat, causing environmental pollution and public hazards. These pollution and public hazards are always side effects of production, life, and other beneficial activities for society that are harmful to human health and economic development. It is impossible to avoid these pollution and pollution hazards altogether and implement “zero emissions.” Therefore, the prevention and control of environmental pollution and other public hazards mainly aim at the pollution and harm caused to the environment by human activities. Environmental pollution and other public hazards can be broadly classified into two types, depending on the nature of the pollutants that cause them: pollution by environmental elements and pollution by toxic and hazardous substances. There can be other classifications. For example, there is air, water, marine, and soil pollution according to the different natures of the environment. The different pollutants include exhaust gas pollution, wastewater pollution, sludge, and other solid waste pollution, noise pollution, radioactive pollution, and electromagnetic wave radiation pollution. The primary classification in legislation is environmental pollution and pollution by toxic and hazardous substances. 1.3

Characteristics of Environmental Pollution

From the perspective of how environmental pollution occurs and its manifestations, environmental pollution has the following characteristics:

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1. The artificiality of the cause. Environmental pollution accompanies human production, life activities, and generated. Therefore, unnatural causes, such as volcanoes, earthquakes, floods, and other environmental pollution caused by natural disasters, do not belong to the scope of environmental pollution in the strict sense. However, the resulting environmental emergencies still fall within the scope of the environmental pollution accident reporting system. 2. Interventional of the pathway. Environmental pollution means that pollutants act on the environment in low concentrations for long periods and often in an integrated and cumulative manner, using the environment as a medium to cause harm to unspecified human and other rights and interests. 3. Variability of mechanisms. Environmental pollutants entering the environment can be transformed, poisoned, degraded, or enriched through biological, physical, or chemical effects, thus changing the environment’s original nature, state, or concentration and producing different harmful effects. 4. Harmfulness of the consequences. Environmental pollutants can have long-term effects on the human body through various pathways, such as the environment and food, affect and endanger many people, and cause serious consequences. For example, it is difficult to detect the harmful effects on the human body, and when detected, it is often difficult to eradicate them and may endanger future generations. 5. Destructive nature of the system. The environmental system consisting of environmental elements and their interrelationships is dynamically balanced. The various environmental elements are interdependent, and changes in any one will affect the equilibrium of the whole system. Changes in any one of the environmental elements caused by environmental pollution can destabilise the environmental system and pose a threat to it.

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2 Environmental Pollution Prevention and Control Legislation and the Primary Legal System 2.1

Status of Legislation on the Prevention and Control of Environmental Pollution in China

Prevention and control of environmental pollution is an essential element of environmental protection and an important task of environmental legislation. Environmental pollution prevention and control legislation is a class of laws and regulations to prevent and control environmental pollution as the legislative object. As an essential part of the environmental pollution prevention and control law, it takes the prevention and control of various environmental pollution as its content. The specific forms are the laws on pollution prevention and control of various environmental elements under the Basic Law on Environmental Protection, individual regulations, and their supporting regulations, and pollutant emission standards. It is both a concretisation of the principal provisions of the fundamental law on the prevention and control of environmental pollution and a comprehensive regulation of the prevention and control of environmental pollution. China’s environmental pollution prevention and control legislation is an early and fast-developing area of environmental law. A series of pollutant emission standards were promulgated in the early 1970s, followed by laws and regulations on sewage charges and environmental pollution prevention and control. To date, specific single laws on environmental pollution prevention and control have been enacted: the Environmental Protection Law (promulgated in 1989 and revised in 2014); the Air Pollution Prevention and Control Law Atmospheric Pollution Prevention and Control Law (adopted in 1987, amended in 1995, revised in 2000, 2015 and amended in 2018); and the Water Pollution Prevention and Control Law (adopted in 1984, revised in 1996, February 2008 and amended in 2017); Law on Prevention and Control of Soil Pollution Prevention and Control Law (adopted in August 2018); Marine Environmental Protection (adopted in 1982, amended revised in 1999, amended in 2013, 2016, 2017); Law on Prevention and Control of Environmental Noise Pollution (1996, amended in December 2018, replaced by the Law on Prevention and Control of Noise Pollution in 2022); Law on Prevention and Control of Environmental Pollution by Solid Waste (adopted in

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1995, amended in 2004, amended in 2013, revised in 2015, amended in 2016, amended revised in 2020); Law on Promotion of Cleaner Production (adopted revised in 2002, amended revised in 2012); Law on Environmental Impact Assessment (promulagated in 2002, amended in 2016, amended in December 2018); Law on (Prevention and Control of Radioactive Pollution (2003); etc. China has promulgated many administrative rules and regulations on pollution prevention and control. These regulations are complementary to individual pollution prevention and control laws. There are also departmental regulations that provide for environmental factors or sources of pollution not provided for in laws and regulations relating to pollution prevention and control, such as the Measures for the Environmental Management of New Chemical Substances (2010). (adopted in 2003, revised in 2010, now expired.) In addition, China has signed the following international conventions on the prevention of environmental pollution: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1991), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and its 1996 Protocol, the Stockholm Convention on Persistent Organic Pollutants (which entered into force for China in November 2004), and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (which entered into force for China in June 2005), among others. 2.2

The Main Regimes of Environmental Pollution Prevention and Control Law

According to the law, the central systems in China’s environmental law dedicated to pollution prevention and control are: 2.2.1 On-Site Inspection System 1. Enforcers The competent ecological and environmental authorities of the people’s governments at or above the county level and the law enforcement agencies and other departments with supervisory and management

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responsibilities shall have the right to conduct on-site inspections of enterprises, institutions, and other production operators that emit pollutants. Other departments exercising environmental supervision and management are the state marine administrative departments, port supervision, fishery and fishing port supervision, military environmental protection departments, and public security, transportation, railway, and civil aviation management departments at all levels. These departments supervise and manage environmental pollution prevention and control per the relevant legal provisions. 2. Relators The inspected emission unit should make a truthful statement and provide the necessary information. The information includes the following: • the discharge of pollutants; • the handling, operation, and management of pollutant treatment facilities; • the type and specification of monitoring instruments and equipment and their calibration; • the monitoring and analysis methods used and monitoring records; • the implementation of the deadline for treatment; • the accident situation and related records; • information on the production process and the use of raw materials related to pollution; • other circumstances and information related to the prevention and control of environmental pollution.

3. Law enforcement norms Inspection authorities should keep the technical and business secrets of the inspected units. Enterprises and institutions’ technical and business secrets directly affect their economic interests in an increasingly competitive market. The leakage of secrets may lead to defeat in the market competition and suffer losses. Therefore, the inspecting authority should

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keep the secrets of the inspected units. In addition, to prevent counterfeiting, inspectors must hold an inspection certificate issued by the environmental supervision and management department of the people’s government at or above the provincial or municipal level and wear the “China Environmental Supervisor” badge when carrying out their work. 2.2.2 Pollution Incident Reporting System 1. Definition A pollution accident is an incident causing environmental pollution due to a violation of operating procedures or management negligence. The pollution accident reporting system refers to the system of notifying and reporting and taking timely measures under laws and regulations in the event of an accident or other sudden event that causes or may cause severe pollution of the environment and threatens the lives and property of residents. Other sudden events refer to irresistible natural disasters that cause environmental pollution. The main difference between the two is that the former is due to human fault, while the latter is an accidental event that is not human fault. 2. Reporting obligations of the unit involved in the accident Units where accidents or other sudden events cause or may cause pollution accidents, must take immediate measures to prevent the expansion of the accident and remove hidden hazards promptly, inform the units and residents whom the pollution may endanger swiftly, and report to the local ecological and environmental authorities and relevant departments for investigation and treatment. Enterprises and institutions with a potential risk of significant pollution accidents should take measures to strengthen prevention. 3. Reporting obligations of competent authorities In the event of severe pollution of the environment threatening the lives and property of residents, the competent ecological and environmental authorities of local people’s governments at or above the county level must immediately report to the local people’s government. The

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people’s government shall take adequate measures to relieve or mitigate the harm. 2.2.3 Pollution Transfer Prevention System 1. Definition Prevention of pollution transfer refers to the prevention of environmental pollution caused by the transfer of heavily polluting equipment, technical processes, or toxic and harmful wastes from manufacturers in foreign countries or overseas regions or from enterprises and institutions in China to units and individuals without the ability to prevent and control pollution for production, processing, operation, or disposal. 2. Constituent elements Pollution transfer must have the following three constituent elements: (1) the transferred equipment, technology, and waste are prohibited by law due to the seriousness of the environmental pollution hazards; (2) the enterprise or institution receiving the transfer does not have the technology, equipment, and capital to prevent the pollution hazards; and (3) the perpetrator is subjectively at fault. Each one of them is necessary. 3. Forms There are many different ways in which pollution can transfer, the main ones being: • Transferring equipment or processes whose production, use, or sale has been banned abroad to domestic enterprises and institutions without the ability to prevent and control pollution for production, processing, or use in the form of joint production, joint ventures, or even wholly owned operations • Illegal production, sale, and use of equipment and processes that have been eliminated under the laws of China or transferred to units without the ability to prevent and control pollution; • Transfer of equipment and processes eliminated in the cities to the rural suburbs for production, operation, and use in the name

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of joint production, setting up factories, or even “supporting the countryside”; • Transfer of heavily polluting processes and equipment from foreign investors to the Chinese side without introducing corresponding pollution prevention facilities that cannot be used simultaneously in conjunction with production in the territory. 2.2.4

Eliminating Outdated Equipment and Processes and Promoting Advanced Equipment and Technology Systems 1. Significance

Low levels of industrial technology and outdated equipment are important causes of environmental pollution. To prevent pollution at its roots, it is necessary to vigorously develop advanced technologies beneficial to the environment and eliminate outdated production processes and equipment that produce pollutants that seriously pollute the environment. 2. Phase-out policy In conjunction with relevant departments, the competent economic department of the State Council shall publish a list of seriously polluting processes banned after a specified time limit and a list of seriously polluting equipment banned from production, sale, import, or use. No unit or individual may transfer the equipment being phased out for use by others. 3. Promotional policy Chinese environmental laws promote the use of advanced production equipment and production technology. In this regard, the Environmental Protection Law, the Air Pollution Prevention and Control Law, the Water Pollution Prevention and Control Law, and the Solid Waste Pollution Prevention and Control Law have explicit provisions. For example, the Law on Prevention and Control of Soil Pollution stipulates that the State encourages and supports agricultural producers to use low toxicity and low residue pesticides and advanced spraying techniques. The Law on

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the Promotion of Cleaner Production states that “the State encourages and supports the development of cleaner production.” Adopting cleaner production by enterprises is significant in transforming the traditional primary pollution prevention and control strategy.

CHAPTER 6

Air Pollution Prevention and Control Act

1 1.1

Overview of the Atmospheric Pollution Control Act

The Concept of Atmosphere and Atmospheric Pollution

1.1.1 Atmosphere The atmosphere is the air, which covers the Earth’s surface and consists of a natural mixture of gaseous components, including nitrogen, oxygen, argon, neon, helium, krypton, xenon, carbon dioxide, water vapour, and other impurities. Under normal conditions, the proportion of these components in the atmosphere is generally 78.1% for nitrogen, 20.9% for oxygen, 0.94% for argon and other inert gases, and 0.06% for carbon dioxide and other gases and impurities. Among the many components of the atmosphere, nitrogen, oxygen, and inert gases are constant components, carbon dioxide, and water vapour are variable components, and impurities and other harmful compounds are indeterminate. The variable components of the atmosphere are the root cause of atmospheric pollution, while excessive carbon dioxide emissions are an essential cause of the Earth’s greenhouse effect. 1.1.2 Air Pollution Atmospheric pollution is a phenomenon in which toxic and harmful substances enter the atmosphere as a result of human production and other activities, leading to changes in their physical, chemical, biological, © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_6

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or radiological properties, which result in the pollution of human life and the ecological environment. It can endanger human health and life. Atmospheric pollution spreads quickly, has an enormous impact, lasts for a long time, and is one of the common hazards of human society. The essence of atmospheric pollution is the massive increase of variable and indeterminate components in the atmosphere, which exceeds the atmosphere’s background content or self-purification capacity, thus causing pollution and harm to human beings, various plants and animals, and other biological objects. The atmosphere is self-purifying and can gradually reduce the concentration of variable components through physical diffusion and dilution, chemical reactions, and biological effects until it returns to its original status. However, when the amount of pollutants absorbed exceeds a specific limit, it is not easy to recover through self-purification. Natural forces such as volcanic eruptions or artificial activities can cause atmospheric pollution. The law aims to prevent and control air pollution caused by human activities. There are four primary sources of air pollution caused by human activities: 1. Domestic pollution sources: Mainly based on the needs of human life, burning fossil fuels, and other activities in the atmosphere, such as the emission of soot and other pollutants caused by atmospheric pollution. 2. Industrial pollution sources: Thermal power plants, iron, and steel plants, chemical plants and cement plants, and other industrial and mining enterprises emit soot, dust, and inorganic or organic compounds in the production and combustion process, causing atmospheric pollution. 3. Traffic pollution sources: Moving cars, trains, ships, and airplanes emit exhaust gases containing monoxide, hydrocarbons, lead, and other pollutants that cause atmospheric pollution. 4. Sources of dust pollution: Due to natural forces, overexploitation in rural and urban areas, vegetation and water surfaces are destroyed and reduced or disappeared, the surface is exposed, and sand and dust are lifted by wind or human activities such as construction and traffic, and as a result, respirable particles are suspended in the atmosphere, thus causing atmospheric pollution. It has been a severe source of air pollution in China in recent years. Our revised Air

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Pollution Prevention and Control Law highlights the treatment of such sources of pollution. The composition of the primary pollutants in the air and the mechanisms responsible for their harmful effects are as follows: (1) Sulphur dioxide (SO2 ). It is mainly produced by the combustion of sulphur-containing substances, such as coal and fuel oil, and from nature, such as volcanic eruptions and forest fires. Sulphur dioxide is a strong irritant to the conjunctiva and mucous membranes of the upper respiratory tract. It can damage the respiratory organs, causing bronchitis, pneumonia, pulmonary oedema, and respiratory paralysis. In addition, sulphur dioxide will corrode metal materials, housing construction, cotton, chemical fibre fabrics, leather, and paper products, making them flake and fade. It can also make the leaves of plants turn yellow or even die. The national environmental quality standard stipulates that the daily average concentration in residential areas should be less than 0.15 mg/m3 , and the annual average concentration should be less than 0.06 mg/m3 . (2) Nitrogen oxides (NOx). Nitrogen oxides in the air are nitrous oxide (N2 O), nitric oxide (NO), nitrogen dioxide (NO2 ), and nitrous oxide (N2 O3 ). The main components are nitrogen oxide and nitrogen dioxide expressed as NOx (nitrogen oxides). Tailpipe emissions from the production or use of nitric acid follow this. The coexistence of NOx and hydrocarbons in the air is photochemically reacted by UV light to produce a form of photochemical smog. It is a toxic secondary pollutant. NO2 is four times more toxic than NO and can cause lung damage and even pulmonary oedema. National environmental quality standards require that the daily average concentration in residential areas be less than 0.10 mg/m3 and the annual average concentration be less than 0.05 mg/m3 . (3) Particulate pollutants. Particulate pollutants in the air are significant in number and complex in composition and can be toxic substances or carriers of other pollutants. They mainly originate from soot from the incomplete combustion of coal and other fuels, dust from industrial processes, construction and traffic dust, wind dust, etc., as well as salt particles formed by physical and chemical reactions of gaseous pollutants. In air pollution monitoring, particulate pollutants are monitored for total suspended particulate matter, natural fallout, and drifting dust. In air pollution monitoring, the main items of particulate matter are total suspended particulate matter (TSP), natural fallout, and drifting

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dust. Total suspended particulate matter (TSP) refers to particulate matter with a particle size of 100 microns or less or TSP for short. The most hazardous are the floating particles of 10 microns or less, known as drifting dust. PM2.5 is a particle with an aerodynamic diameter smaller than 2.5 microns, also known as delicate particulate matter. Its small size and light weight allow it to remain in the air for long periods over a large area. When combined with moisture in the air without wind, it can remain suspended, forming what is known as “hazy weather.” Natural fallout refers to dust with a particle size greater than 10 microns that settles to the ground by gravity in the air. Its source is mainly wind and sand. The development of chronic respiratory inflammation, emphysema, and lung cancer is significantly correlated with the level of airborne particulate matter pollution. National environmental quality standards require daily average concentrations of less than 0.3 mg/m3 and annual average concentrations of less than 0.2 mg/m3 in residential areas. (4) Acid rain. It refers to precipitation with a pH value below 5.6. Sulphur dioxide emissions from coal combustion and nitrogen oxides from motor vehicle emissions are the main factors in the formation of acid rain. Meteorological and topographical conditions are also essential factors in the formation of acid rain. Precipitation with an acidic pH value below 4.9 can cause significant damage to forests, crops, and materials. (5) Carbon Monoxide (CO). It is a colourless and odourless gas. It is mainly derived from the incomplete combustion of carbon-containing fuels and cigarettes and secondly from industrial processes such as coking, steel, and iron. Carbon monoxide is easily combined with haemoglobin to produce carboxyhaemoglobin, which reduces the oxygen-carrying capacity of the bloodstream, resulting in reduced consciousness, reduced central nervous function, and reduced heart and lung respiratory function. Victims may experience dizziness, headaches, nausea, weakness, and even death by coma. National air quality standards require that the daily average concentration of carbon monoxide in residential areas be less than 4.00 mg/m3 . (6) Fluoride (F). It refers to the presence of inorganic fluoride in gaseous and particulate formations. It mainly originates from the production of fluoride-containing products, phosphate fertiliser plants, steel plants, aluminium smelters, and other industrial processes. Fluoride is a strong irritant to the eyes and respiratory organs. Inhalation of high concentrations of fluoride gas can cause pulmonary oedema and bronchitis. Long-term inhalation of low concentrations of fluoride gas can

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cause chronic poisoning and fluorosis, which reduces the calcium in the bones and leads to bone sclerosis and osteoporosis. Our ambient air quality standards require daily average concentrations in urban areas to be less than seven micrograms per cubic metre. (7) Lead and its compounds (Pb). It refers to lead and its compounds present in total suspended particulate matter. It is mainly derived from vehicle emissions. Lead enters the body and accumulates in the bones, damaging the skeletal haematopoietic and nervous systems. It causes clinical symptoms such as anaemia, peripheral neuritis, and abnormalities in movement and sensation. Our average urinary lead level is 80 micrograms per litre, and our average blood lead level is less than 50 micrograms per millilitre. (8) Mercury (Hg) and its compounds. It is a highly toxic substance and can accumulate in the body. The principal risks of mercury are headaches, dizziness, numbness, and limb pain. Methylmercury in total mercury is readily absorbed by the liver and kidneys, of which the brain absorbs only 15%. However, brain tissue is the first to be damaged and is difficult to treat, often leading to death or lifelong illness. 1.2

Legislation on the Prevention of Air Pollution in China

On 25 May 1956, the State Council promulgated China’s earliest legislation on preventing air pollution, the Decision on the Prevention of Silica Dust Hazards in Factories and Mines. It was mainly intended to protect the air in factories and mines and to eliminate the hazards of silica dust to workers. In the 1970s, the main focus of air pollution prevention and control was the renovation of boilers and the elimination of smoke and dust. In 1973, the State Planning Commission issued the Circular on Strengthening the Prevention of Silica Dust and Toxic Substances Hazards. It formulated the Plan to Prevent Silica Dust and Toxic Substances in Enterprises. The State Planning Commission, the State Construction Commission, and the Ministry of Health also jointly issued the “Trial Standards for the Emission of the ‘Three Wastes’ of Industry,” which set out the emission standards for 13 types of hazardous substances such as sulphur dioxide and carbon monoxide, and proposed necessary measures and systems such as the “Three Simultaneous Measures.” On 30 September 1979, the Ministry of Health, the State Construction Commission, the State Planning Commission, the State Economic and Trade Commission, and the State General Labour

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Bureau jointly promulgated the revised Sanitary Standards for the Design of Industrial Enterprises. It is the earliest promulgation of air quality standards and workshop air quality standards for industrial areas in China. Since the 1980s, the State has promulgated Several Provisions on Combining Technological Transformation to Prevent and Control Industrial Pollution, Provisions on Technical Policies for Preventing and Controlling Coal Smog Type Pollution, the Air Environment Quality Standards, the Emission Standards for Boiler Soot, the Emission Standards for Idling Pollutants from Gasoline Vehicles, the Emission Standards for Free Acceleration Soot from Diesel Vehicles, the Emission Standards for Full Load Soot from Automobile Diesel Engines, the Emission Standards for Pollutants in Sulphuric Acid Industry, Interim Measures on the Development of Civilian Type Coal and Measures for the Administration of Urban Smoke and Dust Control Areas, etc. The Air Pollution Prevention and Control Law was promulgated in 1987 and amended in 1995, 2000, 2015, and 2018. The Act is currently the fundamental law for preventing and controlling air pollution in China. It has more specific provisions on the supervision and management system for the prevention and control of air pollution, the primary legal system, the prevention and control of air pollution from combustion, the prevention and control of pollution from motor vehicle and vessel emissions, as well as the primary measures for the prevention and control of exhaust gas, dust and odour pollution, and legal liability. The Beijing Regulations on the Prevention and Control of Air Pollution are standard local rules and regulations.

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The Main Legal Provisions for the Prevention and Control of Air Pollution in China 2.1

Responsibilities of People’s Governments at All Levels in the Prevention and Control of Air Pollution

The Law on Prevention and Control of Air Pollution stipulates the responsibilities of the State Council and local people’s governments at all levels in preventing and controlling air pollution, which can be summarised in two aspects. (1) Unified planning and management. “People’s governments at or above the county level shall incorporate air pollution prevention and control into national economic and social development plans and increase

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financial investment in air pollution prevention and control.” This provision incorporates atmospheric environmental protection into the national development plan, which is the key to ensuring the coordinated development of air pollution prevention and control and economical construction. (2) Reliance on science and technology. The State Council and local people’s governments at all levels must strengthen scientific research on the prevention and control of air pollution and take various technical measures to prevent and control air pollution, such as improving the fuel structure of cities. The Air Pollution Prevention and Control Law stipulates that “the State encourages and supports scientific and technological research on air pollution prevention and control, carries out analysis of the sources of air pollution and its changing trends, promotes advanced and applicable air pollution prevention and control technologies and equipment, and promotes the transformation of scientific and technological achievements as well as the supporting role of science and technology in the prevention and control of air pollution.” They can only be effectively implemented in atmospheric environmental protection if the administrative authorities at national and local levels personally promote these scientific and technical measures. 2.2

Supervisory and Management System for the Prevention and Control of Air Pollution

The task of preventing and controlling air pollution in China is enormous. There are many sources of atmospheric pollution involving many areas and an enormous scope of harm, so it is difficult for the competent ecological environment department to assume supervision and management responsibilities. Therefore, Article 5 of the Air Pollution Prevention and Control Law stipulates: “The competent department of the ecological environment of the people’s government at or above the county level shall implement unified supervision and management of air pollution prevention and control. Other relevant departments of the people’s governments at or above the county level shall implement supervision and management of the prevention and control of air pollution within their respective areas of responsibility.” It is the law’s provision on the supervision and management system for preventing and controlling air pollution. Other relevant

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departments of the people’s governments at or above the county level should formulate administrative regulations and rules to accompany the Air Pollution Prevention and Control Law to implement the supervision and management of air pollution prevention and control. 2.3

Obligations of Polluting Units to Prevent and Control Air Pollution

Emission units refer to all enterprises, institutions, agencies, organisations, and military forces that emit pollutants into the atmosphere in China, including the catering industry, which has been developing rapidly in recent years and has caused severe pollution to the living environment of nearby residents. All units that emit pollutants into the atmosphere must take measures to prevent and control air pollution, regardless of whether they exceed the national or local emission standards. 2.4

Supervision and Management System for the Prevention and Control of Air Pollution

The Law on the Prevention and Control of Air Pollution provides for a particular chapter (Chapter 3) on the supervision and management system for preventing and controlling air pollution. First, the general legal system for pollution prevention and control applies to air pollution prevention and control. These include the environmental impact assessment system, the emission permit system, the total emission control system for key air pollutants, the air pollution monitoring system, the phase-out system, and the on-site inspection system. Secondly, Article 23 of the Air Pollution Prevention and Control Law expressly provides for an air pollution monitoring system. It stipulates that “the competent department of the State Council for the ecological environment is responsible for formulating norms for monitoring and evaluating atmospheric environmental quality and pollution sources, organising the construction and management of a national monitoring network for atmospheric environmental quality and pollution sources and carrying out corresponding monitoring, and releasing information on the status of atmospheric environmental quality nationwide in a unified manner. Local people’s governments at or above the county level are responsible for organising the construction and management of monitoring networks and corresponding monitoring of

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atmospheric environmental quality and pollution sources in their administrative regions and releasing information on the status of atmospheric environmental quality in their administrative regions in a unified manner.” The competent ecological environment department of the State Council establishes air pollution monitoring institutions and organises monitoring networks, develops unified monitoring methods, carries out nationwide air pollution monitoring work to evaluate and grasp the quality of the air environment and the pollution situation, and provides monitoring data and testing techniques and methods for air pollution prevention and control. 2.5

Preventing Air Pollution from Coal Burning

China’s energy sources mainly rely on coal combustion. Therefore, the prevention and control of air pollution is mainly the prevention and control of soot and sulphur dioxide produced by coal combustion. To this end, the Air Pollution Prevention and Control Law has set up a special section (Chapter 4, Section 1) to make explicit provisions, including the general prevention and control of coal pollution and the unique prevention and control of coal-fired sulphur dioxide pollution in two aspects. 2.5.1

Prevention of Pollution from Coal Combustion and Other Energy Sources 1. Boiler products must meet standards before being manufactured, sold, or imported. 2. Develop a centralised heat supply. 3. Improve the structure of urban fuels and promote the production and use of clean energy.

2.5.2

Unique Prevention and Control of Sulphur Dioxide Pollution from Coal Combustion In addition to soot pollution, coal combustion also produces sulphur dioxide and causes acid rain pollution. This pollution is extremely harmful and is the focus of coal pollution prevention and control. In order to prevent and control this kind of air pollution, the Air Pollution Prevention and Control Law has made the following provisions: to promote coal

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washing and processing, to limit the mining of high sulphur and highash coal, and to improve the quality of coal burning. Article 33 of the Air Pollution Prevention Law states: “The State promotes coal washing and processing to reduce coal’s sulphur and ash content, limiting the mining of highsulphur, high-ash coal.” New coal mines shall simultaneously build supporting coal-washing facilities to bring coal’s sulphur and ash content up to the prescribed standards. Established Coal mines shall build supporting coal-washing facilities within a specified period, except for those where the coal mining is of low sulphur or ash content or where coal-fired power plants that have met emission standards do not require it. The Air Pollution Prevention and Control Law also stipulates that the State prohibits all units and individuals from mining coal containing toxic and hazardous substances such as radioactivity and arsenic above the prescribed standards. 2.6

Industrial Pollution Prevention and Control

The Air Pollution Prevention and Control Act has a special section on industrial pollution prevention and control. 1. Strict emission of exhaust gases and dust During the production process, industrial and mining enterprises emit large amounts of toxic emissions to the environment, such as mercury vapour and chlorine gas, which are very harmful to human health. Dust, i.e., soot particles emitted from industrial boilers and cars that use petrol, is even more dangerous to humans. Therefore, Article 45 of the Air Pollution Prevention and Control Law stipulates that “Production and service activities that generate exhaust gases containing volatile organic substances shall be carried out in enclosed spaces or equipment. Pollution prevention and control facilities shall be installed and used per the regulations. Where confinement is impossible, measures shall be taken to reduce emissions.” Article 48 states: “Fine management of enterprises in iron and steel, building materials, non-ferrous metals, petroleum, chemical, pharmaceutical, and mineral mining should be strengthened. Measures such as centralized collection and treatment shall be taken to control the emission of dust and gaseous pollutants strictly. Industrial production enterprises should take measures such as confinement, enclosure, covering, sweeping,

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and sprinkling to reduce the emission of dust and gaseous pollutants generated by the internal storage, transmission, loading, and unloading of materials.” 2. Preventing flammable gases from polluting the atmosphere Many combustible gases emitted from industrial production, such as coke oven gas and petrochemical tail gas, can be recycled. Article 49 of the Air Pollution Prevention and Control Law stipulates: “Combustible gases generated from industrial production, landfills or other activities shall be recycled. If the conditions for recycling are not available, pollution prevention and treatment shall be carried out. Where the device for recycling flammable gases cannot operate normally, it shall be repaired or updated promptly. When the recycling device cannot operate normally, if there is a real need to emit flammable gases, the emitted flammable gases shall be fully combusted, or other measures to control the emission of atmospheric pollutants shall be taken. Moreover, report to the local ecological and environmental authorities and repair or update within a time limit as required.” 3. Equipped with desulphurisation devices Article 43 of the Air Pollution Prevention and Control Law stipulates: “Enterprises of iron and steel, building materials, non-ferrous metals, petroleum, and chemical industry which emit dust, sulphur, and nitrogen oxides in their production processes shall adopt clean production processes and build dust removal, desulphurisation and denitrification devices, or take other measures to control the emission of air pollutants such as technological transformation.” Desulphurising gases containing sulphides can also achieve the value of extensive use while managing pollution. For example, sulphur dioxide, while causing harm to the atmosphere, is also a valuable chemical raw material. 4. Establishing a ledger Article 46 of the Air Pollution Prevention and Control Law stipulates that industrial painting enterprises should use paints with low VOC content and establish a ledger to record the use, waste, and destination of

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production materials and auxiliary materials, as well as the VOC content. The ledger shall be kept for at least three years. 5. Reduction of material leakage and installation of oil and gas recovery devices Article 47 of the Air Pollution Prevention and Control Law stipulates that petroleum, chemical, and other enterprises producing and using organic solvents shall take measures to carry out routine maintenance and repair of pipelines and equipment to reduce material leakage. For leaking materials, they should be collected and disposed of promptly. Oil and gas storage, refuelling stations, crude oil and product terminals, crude oil and product transportation vessels and tankers, and gas tankers should install oil and gas recovery devices and maintain regular use per national requirements. 2.7

Pollution Prevention and Control of Motor Vehicles and Vessels

In recent years, with the rapid increase in the use of automobiles in China, nitrogen oxide emissions from motor vehicles have become one of the major pollutants in big cities. In order to curb this trend, the Air Pollution Control Law has made the following provisions. 1. Promote low-carbon and environmentally friendly travel The government advocates low-carbon and environmentally friendly travel. Cities should reasonably control the number of fuel-fired motor vehicles according to their planning, vigorously develop urban public transport, and increase the proportion of public transport trips. Urban people’s governments should strengthen and improve urban traffic management, optimise road settings, and ensure continuous and unobstructed pedestrian and non-motorised paths. 2. Meeting emission standards Motor vehicles, boats, and non-road mobile machinery shall not emit air pollutants above the standards. Prohibit the production, import, or sale of motor vehicles and non-road mobile machinery that emit air

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pollutants above the standards. Motor vehicles and non-road mobile machinery manufacturers shall conduct emission tests on their products. Only products that have passed the inspection are allowed to sell. Heavy-duty diesel vehicles and non-road mobile machinery without pollution control devices or devices that do not meet the requirements, resulting in substandard emissions, should be retrofitted or replaced with devices that meet the requirements. 3. Emission inspection and supervision Motor vehicles shall be inspected regularly by emission inspection agencies following relevant national or local regulations. The traffic management department of the public security organ shall not issue a safety technical inspection pass mark to motor vehicles that fail the inspection. The competent departments for ecology and the environment of local people’s governments at or above the county level may supervise and sample the air pollutant emissions of motor vehicles in places where motor vehicles are parked or maintained. Without affecting regular traffic, the air pollutant emissions of motor vehicles driving on roads may be supervised and sampled through technical means such as remote sensing monitoring. The traffic management department of the public security organ shall cooperate. 4. Emission reduction and ban areas The State advocates environmentally friendly driving and encourages drivers of oil-fired motor vehicles to switch off their engines when they do not affect road traffic and need to stop for more than three minutes to reduce the emission of air pollutants. Urban people’s governments may designate and announce areas where they prohibit the use of high-emission non-road mobile machinery according to the State of the air environment. 5. Environmental recalls The State establishes a recall system for the environmental protection of motor vehicles and non-road mobile machinery. Manufacturers and importers shall inspect their products when they are informed that

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they are emitting air pollutants above standards. It shall be recalled if it is a product design or production defect or does not meet the specified environmental protection durability requirements. If the product is not recalled, the market supervision and management department of the State Council, in conjunction with the competent department of the State Council for ecology and environment, shall order it to be recalled. 6. Mandatory scrapping vs. early scrapping Motor vehicles emitting air pollutants above the standard should be repaired. If, after repair or pollution control technology, the emissions of air pollutants still do not meet the national standards, they shall be compulsorily scrapped. The motor vehicle owner should sell them to the recycling and dismantling enterprises of end-of-life motor vehicles. These enterprises register, dismantle, destroy, and perform other processing per the relevant state regulations. 7. Prevention of pollution from ships Ship inspection agencies carry out emission tests on ship engines and related equipment. Ships that have been tested to meet national emission standards may only operate. Inland and direct river-sea vessels shall use ordinary diesel oil that meets the standard. Ocean-going ships shall use marine fuel that meets the requirements of air pollutant control when they call at the port. Newly built terminals shall plan, design, and construct shore-based power supply facilities; completed terminals shall gradually renovate shore-based power supply facilities. Priority shall be given to using a shore-based power supply after a ship has called at the port. The production, import, and sale of substandard fuels for motor vehicles, vessels, and non-road mobile machinery are prohibited. So is the sale of ordinary diesel oil and other non-motor vehicle fuels to cars and motorbikes and residual oil and heavy oil to non-road mobile machinery, inland waterways, and direct river and sea vessels.

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Prevention and Control of Dust Pollution

1. Management system Local people’s governments at all levels shall strengthen the management of construction and transportation. Keep roads clean, control materials and muck soil accumulation, expand green spaces, water surfaces, wetlands, and ground paving areas, and prevent and control dust pollution. Relevant departments such as housing and urban and rural construction, urban appearance and environmental sanitation, transportation, and natural resources shall do an excellent job in preventing and controlling dust pollution following the duties determined by the people’s government at the same level. 2. Responsibility for the construction unit The construction unit shall set up a hard material fence at the site and take effective dust prevention and reduction measures such as covering, segmented operation, timing construction, sprinkling water, dust suppression, and washing the ground and vehicles. Construction earthwork, engineering residue, and waste shall be removed and transported promptly. If it is stored on the site, it shall be covered by a closed dust-proof net. Engineering residue and construction waste shall be recycled. The construction unit shall publicise the dust pollution prevention and control measures, the person in charge, the competent department for dust supervision and management, and other information at the construction site. The construction unit shall cover the bare ground for construction land where construction cannot start temporarily. It shall be greened, paved, or covered if it exceeds three months. 3. Prevention of road spillage Vehicles transporting bulk or fluid materials such as coal, rubbish, sludge, sand, gravel, Earth, and mortar shall take airtight or other measures to prevent dust pollution caused by the spillage of materials and shall follow the prescribed routes. Should take the airtight or spraying and other ways to load and unload materials to prevent dust pollution. Urban people’s government should strengthen the roads, squares, car parks, and other public places management and implement clean power mechanised cleaning and other low-dust operation methods to prevent dust pollution.

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2.9

Other Pollution Prevention and Control

1. Prevention and control of malodorous gases and toxic and harmful smoke pollution Malodorous gases can stimulate the senses and cause unpleasant or harmful effects. In order to prevent odorous gas pollution of the atmosphere, Article 75 of the Air Pollution Prevention and Control Law stipulates that “livestock and poultry farms and breeding communities shall collect, store, remove and harmlessly treat sewage, livestock manure, and carcasses promptly to prevent the emission of odorous gas.” Article 80 stipulates: “Enterprises, public institutions, and other producers and operators that produce malodorous gases in their production and business activities shall scientifically select a site. Set a reasonable protective distance, install purification devices, or take other measures to prevent the emission of malodorous gases.” Article 82 stipulates: “It is forbidden to burn asphalt, linoleum, rubber, plastic, leather, garbage and other substances that produce toxic and harmful smoke and odorous gases in populated areas and other areas requiring special protection according to law.” 2. Prohibit open burning of straw The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall designate areas where the open burning of straw, leaves, and other soot-polluting substances is prohibited. People’s governments at all levels and their agricultural administration and other relevant departments should encourage and support the use of advanced and applicable technologies to fertilise, feed, energy, industrial raw materials, edible mushrooms, and other comprehensive use of straw and leaves, and to increase financial subsidies for straw return and collection of integrated agricultural machinery. 3. Adopt emission reduction techniques and technologies Companies, institutions, and other producers and operators of waste incineration facilities that emit persistent organic pollutants into the atmosphere shall, following national regulations, adopt technical methods

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and processes conducive to reducing emissions. Moreover, equip them with effective purification devices to achieve compliance with emission standards. 2.10

Joint Prevention and Control of Air Pollution in Key Regions

The State establishes a joint prevention and control mechanism for air pollution in key regions and coordinates the prevention and control of air pollution in key regions. According to the zoning of the main functions, the regional quality of the air environment, and the law of air pollution transmission and diffusion, the State Council’s competent department of ecology and environment designates the national air pollution prevention and control key areas and report to the State Council for approval. The people’s governments of relevant provinces, autonomous regions, and municipalities directly under the Central Government in key regions shall designate local people’s governments to take the lead and convene joint meetings regularly. Per the requirements of unified planning, standards, monitoring, and prevention and control measures, carry out joint prevention and control of air pollution, and implement the target responsibility for air pollution prevention and control. Under the State Council, the competent ecology and environment department shall strengthen guidance and supervision. Provinces, autonomous regions, and municipalities directly under the Central Government may designate critical areas for preventing and controlling air pollution in their respective administrative regions concerning relevant provisions. 2.11

Dealing with Heavily Polluted Weather

The State shall establish a monitoring and early warning system for heavily polluted weather. The competent department of ecology and environment under the State Council, in conjunction with the competent meteorological authority under the State Council and other relevant departments, and the people’s governments of relevant provinces, autonomous regions, and municipalities directly under the Central Government in critical areas for the prevention and control of air pollution, shall establish monitoring and early warning mechanisms for heavily polluted weather in critical areas, and unify the grading standards for early warning. Key areas where heavily polluted weather may occur shall promptly notify the

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people’s governments of the relevant provinces, autonomous regions, and municipalities directly under the Central Government. The competent ecological and environmental departments of the people’s governments of provinces, autonomous regions, municipalities directly under the Central Government, and municipalities with municipal jurisdictions, in conjunction with the competent meteorological agencies and other relevant departments, shall establish a mechanism for monitoring and warning of heavily polluted weather in their administrative regions. Local people’s governments at or above the county level shall incorporate the response to heavily polluted weather into the emergency management system for emergencies. The people’s governments of provinces, autonomous regions, municipalities directly under the Central Government, municipalities with municipal jurisdictions, and county-level people’s governments where heavily polluted weather may occur shall formulate emergency plans for heavily polluted weather. The plan shall be filed with the competent department of the ecological environment of the people’s government at the higher level and announced to society.

CHAPTER 7

Water Pollution Prevention and Control Law

1 1.1

Water Pollution Issues The Concept of Water Pollution

Water is one of the essential elements of the earth’s environment, the lifeblood of human survival, the material basis for maintaining human social development, and one of the primary sources of energy. Water shortage and pollution are the two major problems facing global freshwater resources. Water pollution in the Water Pollution Prevention and Control Law is the abbreviation for water environment pollution. It refers to land-based water pollution, i.e., the phenomenon of human production and living activities discharging substances or energy into land-based water bodies, resulting in changes in their chemical, physical, biological, or radiological properties, causing deterioration of water quality, thus affecting the effective use of water, endangering human health or damaging the ecological environment. Water pollution includes all surface water and groundwater, such as rivers, canals, lakes, channels, and reservoirs, as well as suspended matter, sediment, and aquatic organisms in the water. The development of urbanisation has led to a large amount of urban sewage being discharged centrally into rivers and lakes around the city or the ground through seeps, bringing in a large number of pollutants that exceed the self-purification capacity of the water bodies. On the other

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hand, a large amount of wastewater from industrial production is also discharged into rivers and lakes, which often contain various substances that cannot be decomposed, some of which are toxic, such as mercury, cadmium, and lead. In addition, a large amount of industrial and municipal waste is deposited on the ground, and toxic substances seep into the groundwater, rivers, and lakes, causing severe water pollution that is difficult to eliminate in the long term. 1.2

Types of Water Pollution

We can broadly divide water pollution into nine types according to the nature of pollutants. 1.2.1 Pathogenic Pollution Pathogenic pollution has the most extended history of water pollution. Domestic sewage, livestock farm sewage, biological products production sewage, medical sewage and tanning, wool washing, slaughter, and other industrial wastewater often contains a variety of pathogens such as viruses, germs, and parasite eggs. Contamination of water bodies with pathogens can lead to the spread of disease. Water has transmitted some of the plagues prevalent throughout history. 1.2.2 Suspended Matter and Sediment Pollution It mainly refers to the pollution caused by the entry of insoluble solids into water bodies, such as soil and mineral particles. The primary sources of pollution are land with more severe erosion, rural and urban runoff, and industrial effluents such as paper and coastal waste. These pollutants damage the surface of the water, blocking rivers, silting up reservoirs and lakes, reducing water transparency, depriving aquatic life of sunlight, causing deterioration of water quality, endangering the survival of aquatic life, and reducing the benefits of water use. 1.2.3 Oxygen-Demanding Substances Pollution Industrial effluents such as domestic sewage, food processing, and paper contain organic substances such as carbohydrates, proteins, oils, fats, and lignin. These substances, which are present in wastewater, need to be decomposed through the biochemistry of microorganisms. The decomposition process requires oxygen consumption and is an aerobic pollutant. These pollutants can cause a reduction in dissolved oxygen in the water,

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which can affect the growth of fish and other aquatic organisms. When dissolved oxygen is depleted, the organic matter will decompose anaerobically, producing unpleasant odours such as hydrogen sulphide, ammonia, and mercaptans, leading to further deterioration of water quality. 1.2.4 Plant Nutrient Pollution Domestic sewage, industrial wastewater, and farm water fertilised with phosphorus and nitrogen often contain some plant nutrients such as phosphorus and nitrogen. The increased levels of these substances in water stimulate the growth of aquatic organisms (mainly algae). Algal blooms take up more and more space in the water column, leaving less and less room for fish and other species to live. Furthermore, algae float on the surface of the water, preventing the exchange of oxygen with the atmosphere and reducing the amount of dissolved oxygen in the water. The algae block sunlight and cause the bottom aquatic plants to die due to lack of oxygen and sunlight, causing the water body to “age” or even “die.” This phenomenon is known as the eutrophication of water bodies. 1.2.5 Oil Pollution It refers to the pollution caused by oil and its refinery products that are discharged into and flow into water bodies. Oil is lighter than water and forms an oily film on the surface of water bodies, preventing them from obtaining oxygen from the atmosphere. Oil pollution mainly affects fish and water birds in water bodies, especially the growth and development of fish eggs and larvae, and causes the death of some birds. 1.2.6 Acid, Alkali, and Salt Pollution It mainly refers to water pollution caused by inorganic alkalis, inorganic acids, and inorganic salts, mostly from industrial and mine sewage. The harm is to increase the mineralisation of freshwater resources, resulting in changes in the pH value of the water body, which destroys the self-purification ability of water and damages industrial and agricultural production. For example, when the pH value of a water body is less than 4.5, the water cannot be used for irrigation. 1.2.7 Pollution by Toxic Chemicals It mainly refers to the pollution caused by heavy metals and organic substances that are difficult to decompose. Heavy metals such as mercury, chromium, cadmium, lead, and arsenic are discharged with wastewater

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in factories and mines and enter water bodies through various channels, causing pollution. Toxic heavy metals generally do not easy to disappear in nature. They act directly on the human body, cause disease, and may also contribute to the development of chronic diseases. The main organic compounds that are difficult to decompose are polycyclic organic compounds, organic cyanide compounds, organic nitrogen compounds, and organic heavy metal compounds. Many of these difficult-to-breakdown compounds are carcinogenic. 1.2.8 Radioactive Contamination It is mainly caused by cooling water from nuclear power plants, radioactive waste dumped into the sea, fallout from nuclear explosions, and nuclear fuel leaking from nuclear ships. The main hazard is the contamination of aquatic organisms and soil, and then through the food chain to human health. 1.2.9 Thermal Pollution It is caused by the discharge of high-temperature wastewater from industrial and mining enterprises into water bodies. Thermal pollution leads to an increase in water temperature. The chemical and biochemical reactions in the water are then accelerated and dissolved oxygen decreases, affecting fish’s survival and reproduction. At the same time, the increase in water temperature also increases the toxicity of certain pollutants. Water pollution not only endangers human health, industrial and agricultural production, and fisheries but also affects the development of shipping and tourism and hinders people’s enjoyment of a suitable environment for recreation, rest, and sports activities.

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Overview of the Water Pollution Prevention and Control Law

The Law of the People’s Republic of China on the Prevention and Control of Water Pollution, promulgated in 1984, is China’s comprehensive Law on the prevention and control of inland water pollution. As of 2017, the Water Pollution Prevention and Control Law has undergone three amendments. The central part of the Law includes standards and planning for water pollution prevention and control, supervision and management, measures, protection of drinking water sources and other

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unique water bodies, and disposal of water pollution accidents. In addition, on 2 April 2015, the State Council officially released the Water Pollution Prevention and Control Action Plan (or “Water Ten”), an important policy document in China’s water pollution prevention and control. The Ministry of Ecology and Environment and its relevant departments issued the Action Plan for the Tackling of Agricultural and Rural Pollution On 6 November 2018, the Action Plan for the Tackling of Agricultural and Rural Pollution (2021–2025) and on 19 January 2022 and the Action Plan for the Improvement of Urban Black Smelly Waters during the 14th Five-Year Plan in April 2022. As the nation’s economy shifts from rapid growth to high-quality development, China’s water environmental protection governance has also begun to focus on particular remediation in different categories.

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3.1

The Primary Laws and Regulations on the Prevention and Control of Water Pollution in China

The Principle of Water Pollution Prevention and Control

The principle of water pollution prevention and control is that within a certain period, the idea of guiding all work in the field of water pollution prevention and control is also the spirit that should be embodied in the formulation of specific policies. Article 3 of the Law on the Prevention and Control of Water Pollution stipulates the basic principles for the prevention and control of water pollution, that is, “the prevention and control of water pollution shall adhere to the principle of giving priority to prevention, combining prevention and control, and comprehensive treatment. Give priority to protecting drinking water sources, strictly control industrial and urban household pollution, and prevent and control agricultural surface pollution. Actively promote the construction of ecological treatment projects, prevent, control and reduce environmental water pollution and ecological damage.”

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3.2

Responsibilities of People’s Governments at All Levels in Water Environmental Protection

Article 4 of the Water Pollution Prevention and Control Law states, “People’s governments at or above the county level shall incorporate water environmental protection into national economic and social development planning. Local people’s governments at all levels are responsible for the quality of the water environment in their administrative regions and shall take timely measures to prevent and control water pollution.” The Law also stipulates that the State shall implement a system of responsibility and assessment of water environmental protection objectives, i.e., the achievement of water environmental protection objectives shall be the subject of assessment and evaluation of local people’s governments and their responsible persons. 3.3

Supervision and Management System of Water Pollution Prevention and Control

Article 9 of the Water Pollution Prevention and Control Law provides for the unified supervision and management and sub-departmental supervision and management institutions and responsibilities for water pollution prevention and control in China. The department in charge of the ecological environment of the people’s government at or above the county level implements unified supervision and management of water pollution prevention and control. The competent department of transportation’s maritime management agency implements supervision and management of the prevention and control of water pollution by ships. Paragraph 3 of which also provides that the water administration, land and resources, health, construction, agriculture, fisheries, and other departments of the people’s governments at or above the county level, and the water resources protection agencies of the watersheds of essential rivers and lakes shall, within their respective areas of responsibility, implement supervision and management of the prevention and control of water pollution. Introduce the river chief system. Article 5 of the Law states that “Provinces, cities, counties, and townships establish a river chief system. The river chiefs shall organise and lead the work of water resources protection, water shoreline management, water pollution prevention and control, and water environment management of rivers and lakes within

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their administrative areas in a graded and sectional manner.” The river chief system is an institutional innovation in river and lake management and in managing China’s water environment and safeguarding national water security. The Opinions on the Comprehensive Implementation of the River Chief System promulgated in December 2016 call for the comprehensive establishment of a four-level river chief system at the provincial, municipal, county, and township levels. Each province (autonomous region, municipality directly under the Central Government) establishes a chief river officer, the leading cadre in charge. It also proposes that the river chief system be fully established by the end of 2018. The competent department of environmental protection under the State Council shall, in conjunction with water administration and other departments and the people’s governments of the relevant provinces, autonomous regions, and municipalities directly under the Central Government, establish a joint coordination mechanism for water environmental protection in the critical river and lake basins and implement unified planning, standards, monitoring and prevention, and control measures. 3.4 3.4.1

Water Environment Protection Standards System

The Development of Water Environmental Quality Standards Water environmental quality standards refer to the quality standards proposed to control and eliminate the pollution of water bodies according to the long-term and near-term objectives of the water environment. Article 12 of the Water Pollution Prevention and Control Law stipulates that the competent department of the State Council for environmental protection shall formulate national water environmental quality standards. For items not stipulated in the national environmental quality standards, the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall formulate supplementary standards and report to the competent department of the State Council for environmental protection for the record. The ecological environment department of the State Council, in conjunction with the water administration department of the State Council and the people’s governments of the relevant provinces, autonomous regions, and municipalities directly under the Central Government, may determine the water quality standards applicable to the

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provincial boundary waters of the critical river and lake basins per the functions of the water bodies identified by the State and the economic and technical conditions of the areas concerned. 3.4.2 Development of Pollutant Discharge Standards According to Article 14 of the Water Pollution Prevention and Control Law, the competent department of the ecological environment under the State Council shall set national discharge standards for water pollutants. For items not stipulated in the national water pollutant emission standards, the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may set local water pollutant emission standards. For items stipulated in the national water pollutant emission standards, local governments may set standards that are stricter than national ones. Local governments shall report local standards to the competent department of the State Council for environmental protection for the record. Article 14(3) of the Water Pollution Prevention and Control Law also stipulates that those who discharge pollutants into any water body for which local standards have been established shall observe such local standards. 3.5

Central Systems for Water Pollution Prevention and Control

1. System to Control the Total Amount of Crucial Water Pollutants Discharged. The system of controlling the total discharge of crucial water pollutants refers to the comprehensive economic, technical, and social conditions within a specific period, through the allocation of water pollution emissions to the sources of sewage in the form of a particular spatial range of water pollutants generated by the sources of water pollution control within the limits of the water environment and the implementation of pollution control methods and their management norms of the general term. To implement the principle of prevention and strengthen the source reduction and discharge control of water pollutants, the Water Pollution Prevention and Control Law extends the scope of the implementation of

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the system for controlling the total discharge of crucial water pollutants to the whole country: First, the State implements a system of controlling the total amount of crucial water pollutant discharges. Secondly, the control target of the total discharge of crucial water pollutants shall be reported by the competent department of environmental protection under the State Council to the State Council for approval and implementation after consulting the relevant departments of the State Council and the people’s governments of the provinces, autonomous regions and municipalities directly under the Central Government, together with the State Council’s comprehensive economic macro-control department. The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall reduce and control the total emissions of crucial water pollutants in their administrative regions following the provisions of the State Council. 3.5.1 Emission Permit System The discharge permit system is an essential means to strengthen the regulation of pollutant discharge. The Water Pollution Prevention and Control Law stipulates that the State shall implement a discharge permit system. Enterprises, institutions, and other producers and operators who directly or indirectly discharge industrial wastewater, medical sewage, and other wastewater and sewage that can only be discharged with a discharge permit per the regulations into water bodies shall obtain a discharge permit. The operator of a centralised urban sewage treatment facility shall also obtain a discharge permit. The discharge permit shall specify the type, concentration, total volume, and destination of water pollutants. 3.6

Protection of Drinking Water Sources and Other Unique Water Bodies

To ensure the safety of drinking water for urban and rural residents and to further improve the management system of protected water sources, Article 1 of the Water Pollution Prevention and Control Law sets “ensuring the safety of drinking water” as one of the legislative objectives. Its main provisions are as follows:

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1. Management system of protected areas for drinking water sources Article 63 of the Law on the Prevention and Control of Water Pollution stipulates that protected areas for drinking water sources are divided into primary and secondary protected areas. When necessary, a specific area may be designated as a quasi-protection area outside the protected area for the drinking water source. The so-called “protected area for drinking water sources” refers to a specific area of water and the land area designated by the State to prevent pollution of drinking water sources and ensure the environmental quality of water sources which requires special protection. The Act also provides the procedure for designating protected areas for drinking water sources, establishing signs, and settling disputes. 2. Strict Management System for a Protected Area for Drinking Water Sources (1) It stipulates that it is prohibited to set up sewage outlets in the protected area of drinking water sources. In the primary protected area of drinking water sources, new construction, alteration, and expansion of construction projects unrelated to water supply facilities and water source protection are prohibited. People’s governments at or above the county level order the demolition or closure of completed construction projects unrelated to water supply facilities and the protection of water sources. Engaging in cage farming, tourism, swimming, fishing, or other activities that may pollute drinking water bodies is forbidden in the primary protected area of drinking water sources. (2) Other prohibited or restrictive measures. Local people’s governments at the county level or above shall organise the department of environmental protection and other departments to investigate and assess the environmental conditions and pollution risks of the following areas: protected areas for drinking water sources, recharge areas of groundwater-type drinking water sources, and areas around water supply units, to screen for possible pollution risk factors and employ corresponding risk prevention measures. Suppose the source of drinking water is polluted and may threaten the safety of the water supply. In that case, the competent department of environmental protection shall order relevant enterprises and public institutions to take measures such as stopping the discharge of water pollutants.

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3. Construction of emergency or standby water sources and improvement of water supply models Article 70 of the newly amended Water Pollution Prevention and Control Law adds provisions for constructing emergency or standby water sources and improving water supply models. “The people’s government of a city with a single source of water supply shall construct emergency or standby water sources, and areas with conditions may carry out regional network water supply. Local people’s governments at or above the county level shall reasonably arrange and layout rural drinking water sources. Areas with conditions may extend urban water supply networks or build cross-village or cross-township joint centralised water supply projects to develop large-scale water supply.” 4. Drinking water supply units are responsible for the quality of the water supply To further clarify the drinking water supply unit responsible for water quality, the Water Pollution Prevention and Control Law added a new Article 71. It provides that: “The drinking water supply unit shall do a good job of quality inspection of the water at the intake and outlet. Suppose the water supply unit finds that the water quality at the intake does not meet the water quality standards of the drinking water source or the water quality at the outlet does not meet the drinking water hygiene standards.” In that case, it shall take corresponding measures promptly and report to the competent water supply department of the local municipal or county people’s government. After receiving the report, the competent department for water supply shall notify the environmental protection departments and health and water administration. Drinking water supply units shall be responsible for the quality of water supply, ensure the safe and reliable operation of water supply facilities, and ensure that the quality of water supply meets relevant national standards. The relevant departments of the local people’s governments at or above the county level shall disclose information on the safety of drinking water to the community at least once a quarter.

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5. Active protection measures in the quasi-protected areas of drinking water Article 68 of the Water Pollution Prevention and Control Law stipulates that in quasi-protected areas, local people’s governments at or above the county level shall, per actual needs, take engineering measures or build wetlands, water-conserving forests, and other environmental protection measures. Thus, water pollutants are prevented from being discharged directly into drinking water bodies to ensure drinking water safety. Engineering protection measures include rural sanitation and environmental improvement, the construction of biological barriers along the reservoir, rural sewage interception, and urban sewage interception. These projects prevent pollutants from entering the water bodies through construction, thus ensuring drinking water safety. 6. Protection of unique water bodies Some water bodies have unique economic and cultural value and require special protection measures to prevent pollution of the water body to ensure that the water quality meets the water environmental standards for specified uses. These remarkable water bodies include waters of scenic beauty, important fishery waters, and other water bodies with exceptional economic and cultural value. The Law effectively protects unique water bodies by designating them as protected areas and stipulates that no new outfalls may be built in the protected areas of unique water bodies. New outfalls in the vicinity of protected areas must ensure that the water in the protected area is not polluted.

CHAPTER 8

Soil Pollution Prevention and Control Law

1

Overview of Soil Pollution 1.1

The Concept of Soil Pollution

Soil is a loose and porous layer of material located on the land’s surface with a certain degree of fertility and capable of growing plants, mainly composed of minerals, organic matter (including soil organisms), water, and air. China’s “Soil Pollution Prevention and Control Law” stipulates that “Soil pollution as referred to in this law refers to the phenomenon of man-made factors causing certain substances to enter the surface layer of land soil, causing changes in the chemical, physical, and biological properties of the soil, affecting the function and effective use of the soil, endangering public health or damaging the ecological environment.” Factors leading to soil pollution include (1) Industrial emissions of “three wastes,” i.e., waste gas, wastewater, and waste residue; (2) Sewage irrigation; (3) The use of pesticides, fertilisers, and other chemicals; (4) Heavy metal pollution; (5) The use of non-degradable agricultural films on a large scale. Soil contamination affects plants’ average growth and development, causing harmful substances to accumulate in plants and enter the human body through the food chain, thus endangering human health. Soil pollution affects industrial and agricultural production and causes collateral

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pollution to the water and air environments. As a significant environmental protection and livelihood project, soil pollution prevention and control has been incorporated into the national environmental management system. 1.2

Types of Soil Contamination

Soil contamination can be divided into different types depending on the nature of the soil contaminants. There are many types of soil contaminants, including chemical, physical, biological, and radioactive pollutants, among which chemical contaminants are the most common, causing the most severe soil pollution and the most complex soil remediation. 1.2.1 Soil Pollution Caused by Organic Matter The primary organic pollutants that contaminate the soil are organophosphorus pesticides, organochlorine pesticides, carbamates, phenols, and amines. In addition, chemical fertilisers, petroleum, polycyclic aromatic hydrocarbons, polychlorinated biphenyls, methane, and harmful microorganisms are also common organic soil pollutants. 1.2.2 Soil Pollution Caused by Heavy Metals The primary sources of heavy metals in the soil are irrigation by sewage, industrial and mining activities and the application of pesticides and fertilisers. Heavy metals contaminate the soil through irrigation with wastewater containing heavy metals or atmospheric deposition into the soil. The heavy metal contaminants that enter the soil are soluble and insoluble particles such as cadmium, mercury, chromium, copper, zinc, lead, and nickel. Heavy metal pollutants are poorly mobile in soil, have a long retention time, cannot be degraded by microorganisms, and can be biologically enriched, making their natural purification process and artificial treatment very difficult. Therefore, once heavy metals contaminate the soil, it is hazardous for humans. 1.2.3 Soil Contamination Caused by Pathogens Soil contains a certain amount of pathogens, including pathogenic intestinal bacteria, parasites, Leptospira, tetanus, moulds, and viruses, mainly from human and animal manure, rubbish, domestic sewage, and hospital sewage. The use of untreated human and animal manure and

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rubbish as fertiliser, or the direct use of domestic sewage to irrigate farmland, can contaminate the soil with pathogens. 1.2.4 Soil Contamination Caused by Radioactive Elements Radioactive elements mainly originate from the fallout from atmospheric nuclear tests and exhaust gases, wastewater, sludge, and nuclear weapons tests emitted during the peaceful use of atomic energy. Materials containing radioactive elements can contaminate soil through natural fallout, rainfall, and waste dumps. Once radioactive material contaminates the soil, it is difficult to decontaminate itself, and the radioactive elements can only decay naturally to stable elements. 1.3

The Hazards of Soil Pollution

The hazards of soil pollution mainly include: (1) Polluting arable land and affecting the quality of agricultural products. Soil pollution affects the growth of crops, resulting in reduced yields. Crops may absorb and enrich certain pollutants, affecting the quality of agricultural products and bringing economic losses to agricultural production. Long-term consumption of farm products with excessive standards may seriously endanger human health. (2) Hurting the safety of the human living environments. Soil contamination of residential, commercial, and industrial land may threaten human health through oral intake, inhalation, and skin contact. If contaminated land is developed directly without treatment and remediation, it will cause long-term harm to the people concerned. (3) Threatening ecological safety. Soil pollution affects the growth and reproduction of plants, animals (e.g., earthworms), and microorganisms (e.g., rhizobia), endangering average soil ecological processes and ecological service functions, and is detrimental to soil nutrient conversion and fertility maintenance, affecting the regular operation of the soil. Contaminants in the ground may be transformed and transported and then enter surface water, groundwater, and the atmosphere, affecting other environmental media and potentially polluting drinking water sources.

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2

Soil Pollution Prevention and Control Legislation

Since the promulgation of the Environmental Protection Law (Trial) in 1979, China has focused on regulating the prevention and control of environmental pollution through legislation. Among them, a large number of contents are devoted to the prevention and control of soil pollution. The legal provisions in this area are scattered among environmental laws, administrative regulations, departmental rules, and many local regulations and government rules. In addition, many highly targeted policy documents have been issued to implement soil pollution prevention and control. The content of these documents is both an organisational implementation of existing legal provisions and a supplement to existing legislation. Subsequent legislation on soil pollution prevention and control has absorbed many of these. 2.1

Laws

(1) The Environmental Protection Law (amended in 2014) provides for the prevention and control of soil pollution in principle. In addition to listing “land” and “wetlands” as environmental elements to be strictly protected by Law, Article 33 of the Law also clearly stipulates that: “People’s governments at all levels shall strengthen the protection of the agricultural environment. Promote the use of new technologies for agricultural and environmental protection. Strengthen the monitoring and early warning of agricultural pollution sources. Coordinate with relevant departments to take measures to prevent and control soil pollution.” (2) The Water Pollution Prevention and Control Act (amended in 2017) is closely related to soil pollution prevention and control. Many of the contents are related to the control of soil pollution sources. For example, Article 51 of the Act states: “The operating unit of a centralised urban sewage treatment facility or the sludge treatment and disposal unit shall safely treat and dispose of sludge. To ensure that the treatment and disposal of sludge are in line with national standards, and the destination of the sludge and other records.” Because of the increasing amount of sludge produced after sewage treatment, some of the sludge contains toxic and harmful substances. If not treated properly, it will cause new soil pollution, so sludge treatment and disposal should be provided. Another

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example is Article 58 of the Law: “Water used for irrigation on agricultural land shall meet the corresponding water quality standards to prevent contamination of soil, groundwater and agricultural products. Discharging industrial wastewater or medical sewage into agricultural irrigation channels is prohibited.” (3) The link between the Air Pollution Prevention and Control Law (amended in 2018) and the prevention of soil pollution is that the air pollutants emitted will eventually settle in water bodies or soil, or form acid rain, causing pollution to the soil. Therefore, Chapter IV of the Act, “Measures for the Prevention and Control of Air Pollution,” are favourable legal provisions for preventing soil pollution. For example, article 41 of the Law states: “Coal-fired power plants and other coal-fired units shall adopt clean production processes, building dust removal, desulphurization, denitrification, and other devices or take other measures to control the emission of air pollutants, such as technical transformation. The State encourages coal-fired units to adopt advanced technologies and devices for the synergistic control of air pollutants such as dust removal, desulphurisation, denitrification, and mercury removal to reduce air pollutants emissions.” Further, Article 74 of the Law stipulates that “Agricultural production operators shall improve fertilization methods, apply chemical fertilisers scientifically and reasonably and use pesticides following relevant state regulations to reduce emissions of atmospheric pollutants such as ammonia and volatile organic substances. The spraying of highly toxic and poisonous pesticides on trees and plants in populated areas is prohibited.” (4) The treatment and disposal of solid waste are essential for soil pollution prevention and control. The Law on the Prevention and Control of Environmental Pollution by Solid Waste (amended in 2016) is a vital law in China to control soil pollution in terms of pollutants and sources of pollution. It focuses on preventing hazardous substances from polluting the soil environment and endangering human health. (5) The Soil Pollution Prevention and Control Law was enacted on 1 January 2019, the first time China enacted a special law to regulate soil pollution prevention and control work. In order to implement the provisions of the Soil Pollution Prevention and Control Law, the 14th

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Five-Year Plan for the Protection of Soil, Groundwater, and Rural Ecological Environment, issued in 2021, focuses on the following aspects to promote soil pollution prevention and control: ➀ Strengthen the source control of arable land pollution. Strictly control the discharge of pollutants from enterprises involved in heavy metal industries. ➁ Prevent new soil pollution from industrial and mining enterprises. Strictly enforce the soil environmental impact assessment system for construction projects. ➂ Implement arable land classification management in-depth. Effectively increase protection efforts. ➃ Strictly manage access to land for construction. Carry out soil pollution surveys and assessments. ➄ Orderly promote soil pollution risk control and remediation on construction sites. Identify priorities for risk control and remediation. ➅ Carry out pilot demonstrations on soil pollution prevention and control. In addition, there are also the Agricultural Law, the Law on Quality and Safety of Agricultural Products, the Law on Land Management, the Law on Soil and Water Conservation, and other related laws, which also cover soil pollution prevention and control. 2.2

Regulations, Rules, and Standards

The main ones are: “Regulations on the Safe Management of Dangerous Chemicals,” “Regulations on the Management of Pesticides,” “Regulations on the Protection of Basic Farmland,” “Measures for the Safe Management of Agricultural Products,” “Measures for the Management of Municipal Domestic Waste,” “Measures for the Management of the Soil Environment of Contaminated Land (for Trial Implementation),” “Regulations for the Assessment and Evaluation of the Implementation of the Action Plan for the Prevention and Control of Soil Pollution (for Trial Implementation),” “Measures for the Management of the Soil Environment of Agricultural Land (for Trial Implementation),” “Measures for the Management of the Soil Environment of Industrial and Mining Land

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(for Trial Implementation),” and so on. Management Measures for Soil Environment on Industrial and Mining Land (for Trial Implementation). There is plenty of regulations on soil pollutants and risk control. Environmental standards also play an essential role in China’s legislative system for soil pollution prevention and control, such as the Standard for the Control of Pollutants in Agricultural Sludge, the Standard for the Safe Use of Pesticides, the Standard for Water Quality in Agricultural Irrigation, the Standard for the Control of Soil Pollution Risks on Agricultural Land (for trial implementation), and the Standard for the Control of Soil Pollution Risks on Construction Land (for trial implementation). In addition, there are a large number of local rules and regulations that regulate the local soil pollution problem to a certain extent according to local conditions, covering topics such as soil protection, prevention and control of soil contamination by pesticides, appropriate soil pollution treatment, and remediation, and soil condition investigation. 2.3

Policies

The specific work of soil pollution prevention and control in China is inseparable from policy documents, the contents of which have significantly impacted the legislation on soil pollution prevention and control in China. These policy documents include the Decision on Implementing the Scientific Outlook on Development and Strengthening Environmental Protection (Guo Fa [2005] No. 39) issued by the State Council in 2005, the Technical Assessment Guide on the Effectiveness of Soil Pollution Treatment and Remediation (for Trial Implementation) (2017), and the Technical Guide on the Classification of Soil Environmental Quality Categories for Agricultural Land (for Trial Implementation) (2017). A critical policy document is the Soil Pollution Prevention and Control Action Plan (Guo Fa [2016] No. 31) issued by the State Council in 2016, also known as “Ten Articles of Soil.” It was prepared by the former Ministry of Environmental Protection in collaboration with the National Development and Reform Commission, the Ministry of Science and Technology, the Ministry of Industry and Information Technology, the Ministry of Finance, the Ministry of Land, the Ministry of Housing and Construction, the Ministry of Water Resources, the Ministry of Agriculture, the General Administration of Quality Supervision, Inspection and Quarantine, the Forestry Bureau and the Legislative Affairs Office of the State Council. In addition to the government’s leadership, it also makes

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explicit provisions for corporate responsibility, the role of the market, and public participation.

3 3.1

The Main Legal Provisions for the Prevention and Control of Soil Pollution in China Legislative Purpose and Basic Principles of the Soil Pollution Prevention and Control Law

3.1.1 The Purpose of the Legislation The Soil Pollution Prevention and Control Law’s legislative purpose is as follows: to protect and improve the ecological environment, prevent and control soil pollution, protect public health, promote the sustainable use of soil resources, advance the construction of ecological civilisation, and promote sustainable economic and social development. The direct purpose is to achieve environmental benefits, i.e., “to protect and improve the ecological environment,” “to prevent and control soil pollution,” and “to promote the sustainable use of soil resources.” The indirect purpose is to achieve economic and social benefits, i.e., “safeguarding public health,” “promoting the construction of ecological civilisation,” and “promoting sustainable economic and social development.” 3.1.2 Basic Principles Article 3 of the Soil Pollution Prevention and Control Law stipulates that soil pollution prevention and control shall adhere to the principles of prevention first, protection first, classification and management, risk control, pollution responsibility, and public participation. The prevention and control of soil pollution in China should follow the following six basic principles: (1) The principle of giving priority to prevention. Prevention means that the whole process of soil pollution prevention and control should be carried out in a preventive manner. It is because once the soil is contaminated, the costs of treatment and remediation are enormous and some of the damage is irreversible. Chapter 3 of the Soil Pollution Prevention and Control Act, entitled “Prevention and Protection,” provides a series of preventive measures. (2) The principle of protection. In dealing with the relationship between soil quality protection and soil development and utilisation, we should avoid “polluting first, then treating” and prevent “damaging first,

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then repairing.“ Soil protection and rational use should be strengthened at the source to prevent soil pollution and ecological damage effectively. (3) The principle of classification and management. It summarises the experience of soil pollution prevention and control at home and abroad. It is also the fundamental principle that meets the characteristics of soil pollution prevention and control as stipulated in Article 10. In other words: the State establishes a classification management system for agricultural land; according to the degree of soil pollution and relevant standards, agricultural land is divided into priority protection, safe use, and strict control categories. (4) The principle of risk control. Treatment of soil pollution is costly. Therefore, in terms of cost-effectiveness, we should seek the maximum environmental benefits at a small cost. It is where soil pollution prevention and control differs from air and water pollution prevention and control. The principles propose risk management measures such as alternative planting and isolation of pollutants for agricultural and construction land contamination, respectively. (5) The principle of pollution liability. The person responsible for causing environmental pollution shall be liable for the pollution damage he caused. It is one of the basic principles stipulated in the Environmental Protection Law and one of the basic principles of soil pollution prevention and control. The Soil Pollution Prevention and Control Law makes corresponding provisions for the responsibility of those responsible for soil pollution. (6) The principle of public participation. As stipulated in the Soil Pollution Prevention and Control Law, any organisation or individual should protect the soil and prevent soil pollution. Citizens, legal persons, and other organisations enjoy the right to obtain information and participate in and supervise the prevention and control of soil pollution by the Law. Any organisation or individual has the right to report or whistleblow acts of soil pollution by the Law. Relevant social organisations may bring environmental public interest litigation to the court by the Law.

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3.2 3.2.1

Government Responsibilities for Soil Pollution Prevention and Control

Target Responsibility System and Assessment and Evaluation of Soil Pollution Prevention and Control Article 5 of the Soil Pollution Prevention and Control Law stipulates: “Local people’s governments at all levels shall be responsible for the prevention and control of soil pollution and its safe use in their administrative regions. The State shall implement a responsibility system for soil pollution prevention and control targets and an assessment and evaluation system. It shall make the completion of soil pollution prevention and control targets a part of the assessment and evaluation of local people’s governments at all levels and their responsible persons, as well as the departments of people’s governments at or above the county level with responsibility for soil pollution prevention and control supervision and their responsible persons.” The target responsibility system for soil pollution prevention and control defines specific objectives and tasks for preventing and controlling soil pollution. It sets out specific measures to achieve these objectives. The responsibility is clarified through assuming responsibility and implementing assessments following the relevant provisions to ensure that the standards are implemented, and the objectives are achieved. The appraisal and evaluation system refers to the implementation and specific effects of the specific goals and tasks defined in the target responsibility system and the performance evaluation by predetermined indicators and assessment methods. Completing soil pollution prevention and control targets is a part of assessing and evaluating the following departments and their responsible persons. The object of the appraisal and evaluation includes two types of subjects: one is the local government, specifically the local governments at all levels and their responsible persons. The second refers to local government departments, specifically those responsible for supervising and managing soil pollution prevention and control at the county level or above, and their responsible persons. According to the “Soil Pollution Prevention and Control Action Plan implementation assessment and evaluation provisions (for trial implementation),” the assessment and evaluation of the content include two

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aspects. The first is the annual assessment of the completion of the critical work of soil pollution prevention and control, and the second is the final assessment of the completion of soil pollution prevention and control objectives. 3.2.2 Basic Duties of the Government Article 6 of the Soil Pollution Prevention and Control Law stipulates: “People’s governments at all levels shall strengthen the leadership of the prevention and control of soil pollution. Organize, coordinate and supervise relevant departments to supervise and manage soil pollution prevention and control per the Law.” According to the provisions of the Environmental Protection Law, local governments at all levels shall be responsible for the environmental quality of their administrative areas, which of course, includes the leadership of the prevention and control of soil pollution. The Soil Pollution Prevention and Control Law stipulates the essential responsibilities of governments at all levels in preventing and controlling soil pollution. It consists of two groups: firstly, the duty of unified leadership, i.e., governments at all levels are required to strengthen the unified leadership of soil pollution prevention and control work. The second is the duty to organise, coordinate, and supervise, i.e., governments at all levels are required to organise, coordinate, and manage relevant departments to perform their supervisory and management duties in soil pollution prevention and control by the Law. 3.3

The Regulatory System of Soil Pollution Prevention and Control

Article 7 of the Soil Pollution Prevention and Control Law stipulates: “The competent department of the State Council for ecology and environment shall implement unified supervision and management of the prevention and control of soil pollution nationwide. The competent departments of the State Council for agriculture and rural areas, natural resources, housing, urban–rural development, forestry, and grassland shall implement supervision and management of soil pollution prevention and control within their respective areas of responsibility.” “Local people’s government departments in charge of the ecological environment shall implement unified supervision and management of soil pollution prevention and control work in their administrative regions. The competent

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departments of agriculture and rural areas, natural resources, housing, urban–rural development, forestry, and grassland of local people’s governments shall implement supervision and management of soil pollution prevention and control within their respective areas of responsibility.” 3.3.1 The Competent Department of Ecology and Environment Soil pollution prevention and control are essential to ecological and environmental protection work. Competent ecological and environmental departments are responsible for unified supervision and management. 1. Responsibilities of the State Council’s ecological and environmental authorities According to the Programme for Deepening Institutional Reform of the Party and the State and the Programme for Institutional Reform of the State Council approved by the 13th National People’s Congress issued in March 2018, one of the primary responsibilities of the established Ministry of Ecology and Environment is to “supervise and manage pollution prevention and control.” The programme also stipulates that the Ministry of Ecology and Environment will integrate the responsibilities and teams of environmental protection and related pollution prevention and ecological protection law enforcement departments such as land, agriculture, water conservancy, and marine. It will also be responsible for ecological and environmental testing and law enforcement in a unified manner. Accordingly, the Ministry of Ecology and Environment is responsible for implementing unified supervision and management of the national soil pollution prevention and control work. However, the environmental law enforcement agencies under the Ministry of Ecology and Environment also enjoy the authority of on-site inspection. 2. Responsibilities of Local Ecological and Environmental Authorities Local ecological and environmental authorities include those at the provincial (autonomous region, municipality directly under the Central Government), prefectural and municipal levels, and county and district levels. According to the provisions of the Soil Pollution Prevention and Control Law, the local ecological and environmental authorities are responsible for the unified supervision and management of soil pollution

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prevention and control in their administrative areas. These departments have both independent and joint implementation responsibilities, as well as cooperative implementation responsibilities. According to Article 77 of the Soil Pollution Prevention and Control Law, the environmental enforcement agencies under these departments can carry out on-site inspections. 3.3.2 Other Departments In addition to the unified supervision and management responsibilities of the competent ecological and environmental authorities, the Soil Pollution Prevention and Control Law also clearly lists the supervisory duties of four relevant authorities. These are the competent authorities for agriculture and rural areas, natural resources, housing, urban–rural construction, and forestry and grassland. They each work within their areas of responsibility to cooperate with the ecological environment department in implementing supervision and management work. In addition, it includes other relevant departments, collectively referred to as “other departments with supervision and management responsibilities for soil pollution prevention and control.” 3.4

Planning, Standards, Census, and Monitoring

3.4.1 Soil Pollution Prevention and Control Planning Article 11 of the Soil Pollution Prevention and Control Law states: “People’s governments at or above the county level shall incorporate soil pollution prevention and control into national economic and social development planning and environmental protection planning. The competent department of the local people’s government at or above the municipal level under the jurisdiction of a municipality shall, in conjunction with the competent departments of development and reform, agriculture and rural areas, natural resources, housing and urban–rural development, forestry, and grassland, prepare a soil pollution prevention and control plan following the requirements of the environmental protection plan, land use, and the results of the census and monitoring of the soil pollution situation, and submit it to the people’s government at this level for approval and then promulgate it for implementation.” Environmental protection work depends on planning for environmental protection first. Incorporating soil pollution prevention and control into environmental protection planning can help strengthen and

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enhance soil pollution prevention and control. For example, the 13th Five-Year Plan for Ecological and Environmental Protection sets the quality of the soil environment as a crucial indicator. It includes a special section on the prevention and control of soil pollution by category. Specifically, it put forward the following requirements: to promote the construction of primary surveys and monitoring networks, to implement soil environment classification management on agricultural land, to strengthen environmental risk control on construction land, to carry out soil pollution treatment and remediation, and to strengthen soil pollution prevention and control in critical areas. 3.4.2 Control Standards for Soil Pollution Risks Article 12 (1) of the Law on the Prevention and Control of Soil Pollution states: “The competent department of the State Council for ecology and environment shall set national control standards for soil pollution risks and strengthen the system of soil pollution prevention and control standards based on the following factors: soil pollution status, public health risk, ecological risk, and scientific and technological level, as well as land use. Environmental standards are the basis for environmental supervision, management, and enforcement and are the primary measure of emissions and environmental quality. Environmental quality standards are the yardstick for evaluating the State of the environment and are the concrete expression of the objectives of the national environmental policy. It is also an essential basis for formulating pollutant emission standards and the scientific management of the environment by the ecological and environmental authorities and related departments. China promulgated the Soil Environmental Quality Standard (GB 15618-1995) on 13 July 1995 and implemented it on 1 July 1996. The standard has been fundamental in China’s soil environmental protection and management. However, it also needs help, such as the small scope of the application, few project indicators, and unsatisfactory implementation results. It needs improvement to be adaptable to risk control of soil pollution on agricultural and construction land. Therefore, it is not easy to meet the current needs of soil environment management. China’s current standard system for soil pollution prevention and control includes three categories: standards for the management and

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control of soil pollution risks, standards for the regulation of soil environment monitoring, and standards for the foundation of the soil environment. Article 12(2) of the Soil Pollution Prevention and Control Law provides for the formulation of local standards for managing and controlling soil pollution risks and filing requirements. In other words, “the people’s governments at the provincial level may formulate local standards for items not stipulated in the national standards for managing and controlling soil pollution risks. For items already specified in the national standards for managing and controlling soil pollution risks, local governments can formulate stricter standards than the national ones. Local governments shall report local standards to the competent department of the State Council for the ecological environment for the record.” 3.4.3 Soil Pollution Census Article 14 of the Soil Pollution Prevention and Control Law stipulates: “The State Council shall lead the national census of soil pollution in a unified manner. The competent department of the State Council for ecological environment, in conjunction with the competent departments of the State Council for agriculture and rural areas, natural resources, housing and urban–rural development, forestry, and grassland, shall organize a national soil pollution survey at least once every ten years. Relevant departments of the State Council, municipalities, and local people’s governments above the municipal level may organize detailed soil pollution surveys according to the actual situation in their sectors and administrative regions.” The soil pollution census and detailed survey is a further systematic survey based on the existing surveys. The aim is to find out the area and distribution of soil contamination on agricultural land and its impact on agricultural products and to find out the distribution of contaminated land in the land of enterprises in key industries and their environmental risks, in order to lay the foundation for the classification and management of the soil environment on agricultural land and the access management of construction land and to provide vital essential support for the prevention and control of soil pollution. 3.4.4 Soil Environment Monitoring Article 15 of the Soil Pollution Prevention and Control Law stipulates: “The State shall implement a soil environment monitoring system. The

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competent department of the State Council for ecology and environment shall formulate norms for soil environment monitoring, organize monitoring networks in conjunction with the competent departments of the State Council for agriculture and rural areas, natural resources, housing, and urban–rural development, water conservancy, health and hygiene, forestry and grassland, and plan the setting of national soil environment monitoring stations (points) in a unified manner.” China initially built a national soil environment monitoring network to comprehensively cover all soil types, counties, and primary agricultural product origins. The Soil Pollution Prevention and Control Law stipulates that the competent departments of agriculture, rural areas, forestry, and grassland of local people’s governments shall, in conjunction with the competent departments of ecology, environment, and natural resources, conduct critical monitoring of the following agricultural land parcels: (1) Those that produce agricultural products with pollutant content exceeding the standard; (2) Those that are or have been used as sewage irrigation areas; (3) Those that are or have been used for large-scale farming, solid waste piling or landfilling; (4) Have been used as industrial and mining land or have had major or extraordinary pollution accidents; (5) Around the production, storage, utilisation and disposal facilities of toxic and hazardous substances; (6) Other circumstances stipulated by the State Council’s competent departments of agriculture and rural areas, forestry and grassland, ecological environment, and natural resources. The competent department of ecology and environment of the local people’s government shall, in conjunction with the capable department of natural resources, conduct critical monitoring of the following construction land parcels: (1) Those that were once used for producing, storing, recycling, and disposing of toxic and hazardous substances; (2) Those that were once used for solid waste dumping or landfilling; (3) Those that were once involved in primary or mega pollution accidents; (4) Other circumstances prescribed by the competent department of ecology and environment and natural resources of the State Council.

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Prevention and Protection

3.5.1 Environmental Impact Assessment Article 18 of the Soil Pollution Prevention and Control Law stipulates that: “All plans involving land use and construction projects that may cause soil pollution shall be subject to environmental impact assessment following the Law. The environmental impact assessment shall include the possible adverse impact on the soil and the corresponding preventive measures to be taken.” Projects such as the following should carry out an environmental impact assessment by the Law: those involving land development and utilization planning, such as regional development, industrial, urban construction, and natural resource development planning and construction projects that may have an impact on soil, such as non-ferrous metal smelting, petroleum processing, chemical industry, coking, electroplating, and tannery. The environmental impact assessment shall analyse, predict, and evaluate the possible soil ecological impact, and propose countermeasures to prevent or mitigate soil pollution. 3.5.2

Prevention of Soil Pollution by Toxic and Harmful Substances The Soil Pollution Prevention and Control Law stipulates the obligations of units and individuals involved in activities involving toxic and hazardous substances to prevent soil pollution. Units and individuals who produce, use, store, transport, recycle, dispose of or discharge poisonous and dangerous substances shall take adequate measures to prevent leakage, loss, or dispersion of toxic and hazardous substances to avoid soil contamination. It is a common practice for countries to adopt stricter risk control measures for toxic and hazardous substances than for pollutants in general. For example, the EU Industrial Emissions Directive requires that the following facilities or plants may only operate with a permit: incineration plants, waste incineration plants, or waste co-incineration plants. The permit specifies the measures taken by the licensee to prevent discharges to soil and groundwater and the requirement for regular inspections of these measures to prevent leaks, spills, and accidents during the use and storage of the equipment. The Law on Prevention and Control of Soil Pollution stipulates the subject, basis, and working procedures for publishing a list of toxic and harmful substances in soil. In another word, the competent department

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of the ecological environment under the State Council shall, together with the capable department of health and other departments under the State Council, conduct screening and assessment of toxic and harmful substances in soil according to the degree of danger and impact on public health and ecological environment, and publish a list of poisonous and harmful substances in the ground for priority control, and update it in due course. 3.5.3

Prevention and Control of Soil Pollution in Activities Involving the Demolition of Facilities, Equipment, Buildings, or Structures Enterprises and public institutions shall employ corresponding soil pollution prevention and control measures when demolishing facilities, equipment, buildings, or structures. Soil pollution units under critical supervision shall draft soil pollution prevention and control work plans, including emergency response measures, and report them to the competent departments for ecology and environment, industry, and information technology of local people’s governments for the record, before carrying out the demolition of facilities, equipment, or buildings or structures. According to the provisions of the Soil Pollution Prevention and Control Action Plan, enterprises in the following industries are required to formulate a residual pollutant cleanup and safe disposal plan in advance and report it to the local county-level environmental protection, industry, and information technology departments for the record before dismantling production facilities, equipment, structures, and pollution control facilities: non-ferrous metal smelting, petroleum processing, chemical industry, coking, electroplating, and tannery. Moreover, in the process of dismantling in strict accordance with the relevant provisions of the implementation of safe treatment and disposal, to prevent the dismantling activities contaminated soil. The Soil Pollution Prevention and Control Law is consistent with the requirements of the above action plan. 3.5.4

Soil Pollution Prevention and Control in Mineral Resources Development Activities In the process of mineral resource development and utilisation, the impact on soil is mainly manifested in soil erosion, soil acidification, and soil pollution. Soil pollution caused by the development and utilisation of mineral resources specifically includes heavy metal pollution such as mercury, cadmium, and lead caused by the mining and processing of

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minerals, organic pollution caused by the petrochemical industry, and solid waste pollution caused by the mining process. The competent departments for ecology and the environment and natural resources of all levels of people’s government shall strengthen supervision and management of the prevention and control of soil pollution in mineral resources development areas by Law. It is necessary to strictly control the discharge of critical pollutants that may cause soil pollution by relevant standards and the requirements of total volume control. Tailings pond operation management units should follow the provisions to strengthen the safety management of tailings ponds and measures to prevent soil pollution. Dangerous ponds, dangerous ponds, sick ponds, and others need to focus on the supervision of the operation of tailings ponds; management units should be by the provisions, soil pollution monitoring, and regular assessment. 3.5.5 Soil Pollution Prevention and Control for Special Facilities The Soil Pollution Prevention and Control Law makes explicit provisions on the soil pollution prevention and control requirements for two exceptional facilities: centralised sewage treatment facilities and solid waste disposal facilities. Firstly, the construction and operation units of centralised sewage treatment facilities and solid waste disposal facilities are obligatory requirements. Secondly, the local ecological and environmental supervision departments must monitor and supervise the two types of facilities. They should regularly monitor the soil around the centralised sewage treatment and solid waste disposal facilities. According to the monitoring results, timely detection of pollution hazards requires the operation and management of facilities to take appropriate improvement measures promptly. Local people’s governments at all levels should coordinate the planning and construction of urban and rural domestic sewage and domestic waste treatment and disposal facilities, and ensure their regular operation, to prevent soil pollution. 3.5.6 Preventing Soil Contamination on Agricultural Land Fertilisers, pesticides, and other agricultural inputs hurt the soil environment. Therefore, it is essential to start with the quality and use of fertiliser and pesticide products, to strictly control the harmful substances in the products, reduce the amount used, and minimise the impact of the use process on the environment to prevent and control the soil pollution caused by them effectively. To this end, the Soil Pollution Prevention

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Law stipulates that the competent departments of agriculture, rural areas, forestry, and grassland under the State Council shall do the following: • Formulate plans; • Improve relevant standards and measures; • Strengthen guidance and total control of pesticides and chemical fertilisers on agricultural land; and • Strengthen control of the use of agricultural films. The State Council department in charge of agriculture and rural areas should strengthen the registration of pesticides and fertilisers and organise the safety evaluation of the impact of pesticides and fertilisers on the soil environment. The development of standards for agricultural inputs such as pesticides, veterinary drugs, fertilisers, feed, agricultural films, and their packaging, and means for water used for irrigation on farmland should adapt to the requirements of soil pollution prevention. Local people’s government departments in charge of agriculture, rural areas, forestry, and grassland should carry out publicity and technical training activities for the prevention and control of soil pollution on agricultural land, including encouraging agrarian producers to adopt agricultural farming measures that are conducive to the prevention of soil pollution, such as the combination of farming, crop rotation and fallow; supporting the adoption of soil improvement, soil fertility enhancement, and other measures conducive to soil conservation and cultivation; supporting the construction of livestock and poultry manure treatment and utilisation facilities. Discharging sewage and sludge containing heavy metals or other toxic and harmful substances over the standard and dredging substrates, tailings, and slag that may cause soil contamination is prohibited on agricultural land. Relevant departments of the people’s governments at or above the county level should strengthen the collection, storage, use, and disposal of livestock and poultry manure, marsh sludge, marsh liquid, supervision, and management to prevent soil pollution. Agricultural irrigation water should meet the corresponding water quality standards to prevent soil, groundwater, and agricultural pollution. The State encourages and supports agricultural producers to take the following measures: (1) Using low toxicity, low residue pesticides, and

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advanced spraying techniques; (2) Using organic fertilisers, and highefficiency fertilisers that meet the standards; (3) Adopting soil testing and fertilisation techniques, biological control, and other green pest control techniques; (4) Using biodegradable agricultural films; (5) Extensively utilising straw and removing straw with high concentration; (6) Improving acidic soil following regulations. The Soil Pollution Prevention and Control Law also allows the recycling of packaging waste of agricultural inputs and films. The production, sale, and use of agricultural inputs the State expressly prohibits are prohibited. 3.5.7 Others The State encourages the adoption of new technologies and materials in construction projects, such as information, networks, lightning protection, grounding in construction, communications, electricity, transportation, and water conservancy to prevent soil pollution. It is forbidden to use deterrents in soil that contain heavy metals over the standard. Local people’s governments at or above the county level and their relevant departments shall, based on the general land use and urban and rural planning, strictly enforce the siting requirements for the layout of enterprises in relevant industries and prohibit the construction, alteration, and expansion of new projects that may cause soil pollution around residential areas and schools, hospitals, sanatoriums, nursing homes, and other units. In addition, the Soil Pollution Prevention and Control Law makes explicit provisions for the protection and rational use of soil resources and the inspection and quarantine of imported soil. 3.6

Risk Control and Remediation

3.6.1 General Provisions 1. Key Aspects of soil Contamination Risk Control and Remediation The primary purpose of soil pollution risk control and remediation is to investigate the risk of soil pollution and take corresponding measures to control or remediate the contaminated soil according to the actual situation to protect public health. It includes the following aspects: (1) Investigation of soil pollution; (2) Assessment of soil pollution risks; (3) Risk management and control and remediation; (4) Assessment of risk management and control and remediation effects; (5) Post-management.

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2. Soil Contamination Survey Report The implementation of the soil contamination status survey should produce a soil contamination status survey report. The main contents of the soil contamination survey report include: firstly, the basic information of the land, including the location, area, ownership, actual use status, intended use, and other essential details of the land. The second is whether the contaminant content exceeds the management and control standards for soil contamination risks. 3. Assessment Report on the Risk of soil Contamination The implementation of the soil contamination risk assessment should produce an assessment report on the risk of soil contamination. It shall include the following contents: the status of significant pollutants, i.e., the type and content of major pollutants; the extent of soil and groundwater contamination, i.e., the distribution of soil and groundwater contamination; the risk to the quality and safety of agricultural products, the risk to public health, or the ecological risk; the objectives and basic requirements for risk control and remediation. 4. Requirements for the Implementation of Risk Control and Remediation (1) Before implementation, the relevant departments of the local people’s government shall have the right to require the person responsible for soil contamination and the land use right holder to take measures to remove the source of contamination and prevent the spread of contamination according to the actual situation. (2) The measures shall be tailored to the local situation, scientific and reasonable, and more targeted and effective. (3) No new pollution shall be caused to the soil and the surrounding environment. (4) The wastewater, waste gas, and solid waste generated shall be treated and disposed of following the regulations and meeting relevant environmental protection standards. (5) Solid waste generated and dismantled facilities, equipment or buildings, and structures, which are hazardous waste, shall be disposed of by the requirements

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of laws and regulations and relevant standards. (6) During the restoration construction, the builder shall set up a notice board to disclose the relevant information and environmental protection measures. 5. Environmental Protection Requirements for Off-site Remediation Suppose the remediation construction unit transfers contaminated soil. In that case, it shall draw up a transfer plan and report in advance the time, mode, route, and quantity of contaminated soil, its destination, and final disposal measures to the competent ecological and environmental authorities of the location and receiving area. If the contaminated soil transferred is hazardous waste, the remediation contractor shall dispose of it by the requirements of laws and regulations and relevant standards. 6. Effectiveness Assessment Report The assessment report on the effect of risk management, control, and remediation mainly includes whether the objectives identified in the risk assessment report on soil pollution have been achieved. After the completion of risk control and remediation activities, if post-management is required, the person responsible for soil pollution shall implement post-management per the requirements. The Technical Assessment Guidelines on the Effectiveness of Soil Pollution Treatment and Remediation (for Trial Implementation) stipulate the relevant contents of the comprehensive assessment of the effectiveness of soil pollution treatment and remediation in each county (city or district) of the administrative region by a third-party institution (i.e., assessment institution) commissioned by the provincial (district or city) people’s government or its relevant department and other units organising the assessment. The assessment of risk control and remediation effectiveness can refer to the applicable provisions therein. 7. Requirements for Third-party Service Units Units engaged in activities such as soil pollution status investigation, risk assessment, risk management and control effectiveness assessment, remediation effectiveness assessment, and post-management should have the corresponding professional capacity. According to the “Guidelines

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for Technical Assessment of Soil Pollution Treatment and Remediation Effectiveness (for Trial Implementation),” the relevant assessment organisations should meet the following primary conditions: (1) Comply with relevant national laws, regulations, and policies; (2) Have a sound organisational structure and a relatively stable research team; (3) Have an excellent social reputation; (4) Have experience undertaking national and local ecological environmental protection-related strategies, planning, policy research, and consultation; (5) Have more than three senior researchers with long-term (10 years or more) experience in environmental protection management, policy, planning, and technical consulting. The unit entrusted with the activities mentioned above is responsible for the authenticity, accuracy, and completeness of the investigation report, risk assessment report, assessment report on the effect of risk management and control, and assessment report on the impact of restoration issued by it. As agreed, they are also responsible for the results of risk control, repair, and post-management activities. 8. Prevention of soil pollution caused by emergencies In the event of an emergency that may cause soil contamination, the local people’s government, relevant departments, relevant enterprises, institutions, and other producers and operators shall immediately take emergency measures to prevent soil contamination. Moreover, following the provisions of this Law to do soil pollution monitoring, investigation and soil pollution risk assessment, risk control, remediation, and other work. 9. Subjects responsible for soil pollution Firstly, the person responsible for soil pollution should implement risk management and control of soil pollution and remediation. In other words, the person responsible for soil pollution shall investigate soil pollution, risk assessment, risk management and control, remediation, assessment of risk management and control, assessment of remediation effect, and post-management activities.

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Secondly, if it is impossible to identify the person responsible for soil pollution, the land use right holder shall implement soil pollution risk management and control and remediation. Thirdly, the person responsible for soil pollution shall bear the costs incurred in implementing or organising the implementation of soil pollution investigation and risk assessment of soil pollution, risk management and control, remediation, assessment of risk management and control effects, assessment of remediation effects, post-management, and other activities. Fourthly, in the event of a change in the person responsible for soil pollution, the entity or individual who inherits its debts or liabilities after the difference shall perform the relevant control and remediation obligations and bear the applicable costs. Fifthly, if the person responsible for soil contamination of agricultural land is unclear or in dispute, the local people’s government shall be responsible for determining the responsible person. Specifically, the local people’s government departments in charge of agriculture, rural areas, forestry, and grassland, together with the departments in charge of ecological environment and natural resources, are responsible for determining the person responsible. 3.6.2 Agricultural Land 1. Agricultural land

(1)

Classification of agricultural land

The State has established a system for classifying and managing agricultural land. Article 7 of the Soil Pollution Prevention and Control Action Plan stipulates that agricultural land shall be classified into soil environmental quality categories. According to the degree of soil contamination and relevant standards, agricultural land will be classified into three categories: priority protection, safe use, and strict control. Priority is given to protecting uncontaminated and lightly contaminated land, the safe use of lightly and moderately contaminated land, and the strict supervision of heavily contaminated land. The responsible departments should focus on arable land and take corresponding management measures to ensure agricultural products’ quality and safety. Each provincial government is

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responsible for finalising agrarian land classification and uploading the data to the national information management platform for the soil environment. In addition, information on the area and distribution of each category of arable land is regularly updated following changes in land use and soil environmental quality. Local people’s governments at or above the county level shall designate eligible arable land of priority protection as permanent essential farmland by the Law and shall strictly protect it. No new construction projects that may cause soil pollution shall be built where the endless critical farmland is concentrated. Those built should be closed down and dismantled by a deadline. For unused land, reclaimed land, and other lands to be reclaimed as arable land, the competent department of agriculture and rural areas of the local people’s government shall, in conjunction with the capable department of ecology, environment, and natural resources, survey the soil pollution status and carry out classification and management per the law. 2. Soil contamination survey and risk assessment of agricultural land Investigation of the soil contamination status refers to a detailed analysis of the actual soil contamination situation on agricultural land in a particular area where there is a possible risk of soil contamination. The purpose is to determine the type and quantity of contaminants and whether risk assessment and subsequent risk management and control or remediation activities are required. A risk assessment should be initiated when the investigation of the soil contamination situation indicates that the level of contaminants exceeds the risk management and control criteria for soil contamination. 3. Programme for safe use For agricultural land plots that require safe use, the competent departments of agriculture, rural areas, forestry, and grassland of the local people’s government shall develop and implement a safe use program, taking into account the main crop varieties and cultivation habits. Programme for safe use should include (1) Agronomic control, and planting substitution; (2) Regular monitoring and evaluation of soil and

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agricultural products in concert; (3) Technical guidance and training for farmers, farmers’ cooperatives, and other agricultural production operators; and (4) Other risk management and control measures. 4. Risk control measures For agricultural land parcels that require strict management and control, the competent departments of agriculture, rural areas, forestry, and grassland of local people’s governments shall take the following risk management and control measures: (1) Propose the delineation of areas where the production of specific agricultural products is prohibited and submit them to the people’s government at this level for approval before implementation; (2) Carry out synergistic monitoring and evaluation of soil and agricultural products by the regulations; (3) Provide farmers, farmers’ professional cooperatives and other (3) Provide technical guidance and training to farmers, farmers’ cooperatives and other business entities in agricultural production; (4) Other risk management and control measures. People’s governments at all levels and their relevant departments should encourage the adoption of the following measures for agricultural land that requires strict management and control: adjusting planting structures, returning farmland to forests and grasses, returning farmland to wetlands, rotational fallowing, and rotational grazing, and providing corresponding policy support. 5. Prevention of pollution of groundwater and drinking water sources The Soil Pollution Prevention and Control Law provides for the prevention and control of soil pollution on agricultural land that affects or may affect the safety of groundwater and drinking water sources in the safe use and strict control categories. The competent department of the ecological environment of the local people’s government shall, in conjunction with the competent departments of agriculture, rural areas, forestry, and grassland, formulate a plan to prevent and control pollution and take corresponding measures.

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6. Risk control requirements for agricultural land By risk control, we mean reducing the damage caused when a risk event occurs by cutting off or blocking the pathway through which the contaminant affects the receptor and limiting or avoiding the possibility of exposure of the receptor to the pollutant. Risk control emphasises the control of pre-existing soil contamination to prevent direct impacts on agricultural products and human health. For the safe use of class and strict control of agricultural land plots, the person responsible for soil contamination shall, by the relevant national regulations and the requirements of the risk assessment report on soil contamination, take appropriate risk control measures and regularly report to the local people’s government in charge of agriculture, rural areas, forestry, and grassland departments. 7. Agricultural land parcels remediation program and effect assessment For agricultural land plots with excessive levels of contaminants in agricultural products that need to be remediated, the person responsible for soil contamination should prepare a remediation plan and report it to the local people’s government departments in charge of agriculture, rural areas, forestry, and grassland for the record and implementation. The remediation program should include the content of groundwater pollution prevention. Remediation should prioritise biological remediation measures that do not affect agricultural production and do not reduce the production function of the soil, blocking or reducing pollutants into the edible part of crops, to ensure the quality and safety of agricultural products. After the risk control and remediation activities are completed, the person responsible for soil pollution shall separately commission relevant units to evaluate the effect of risk control and remediation and report the effect evaluation report to the local people’s government of agriculture, rural areas, forestry, and grassland. Rural collective economic organisations and their members, farmers’ cooperatives, and other agricultural production and business entities are obligated to assist in implementing soil pollution risk control and remediation.

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3.6.3 Construction Land 1. List System for soil Contamination Risk Control and Remediation of Construction Sites The State implements a list system for soil risk control and remediation of construction land, a basic system for strict access management of construction land, and safeguarding the safety of the human environment. The competent department of the ecological environment of the provincial people’s government, together with other competent departments of natural resources, will draw up a list of soil pollution risk management, control, and remediation for construction land. This list is information the government has taken the initiative to make public. The government shall disclose it to the public by the regulations and update it per the risk management, control, and remediation situation. The list’s content should include the plot’s name, address, area, extent, primary pollutants, risk control, and remediation progress. The survey report on the soil pollution status, risk assessment report, risk management and control plan, remediation plan, assessment report on the effectiveness of risk management and control, and assessment report on the efficacy of remediation can be annexed to the corresponding parcel in the list. In order to standardise and guide the disclosure of the list as well as the relevant conditions and environmental protection measures during the construction of soil pollution remediation, the Ministry of Ecology and Environment formulated the “Guidelines for the Disclosure of Information Related to the List of Soil Pollution Risk Management and Control and Remediation of Construction Sites and Remediation Construction” on 21 December 2021. The subject, time limit, content, manner of disclosure, and time limit for reporting are clearly defined. 2. Surveys of soil Contamination There are two situations in which an investigation into the state of soil contamination should be initiated: The first situation is where a problem is identified, i.e., the census, detailed survey, and monitoring of the soil contamination status, as well as on-site inspections, indicate a risk of soil contamination on construction land plots. In this case, the local people’s government’s competent

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ecological and environmental authorities should require the land user to survey the soil contamination status per the regulations. The second situation is where the construction land is proposed to be changed to residential, public administration, and public services. Then, a survey on the soil contamination status should be conducted following the regulations before the change. The survey report shall be reported to the competent department of ecology and environment of the local people’s government, which shall organise the evaluation together with the competent department of natural resources. 3. Risk Assessment of soil pollution Suppose the evaluation of the investigation report on the soil contamination of a construction site shows that the content of pollutants exceeds the standards for risk management and control of soil contamination. In that case, the person responsible for soil contamination and the land use right holder shall carry out a risk assessment of soil contamination following the regulations of the competent department of ecology and environment under the State Council. The assessment report shall be reported to the competent department of ecology and environment of the provincial people’s government. In order to standardise the risk assessment of soil contamination on construction sites, the ecological and environmental departments have issued a series of technical specifications and guidelines, such as the Technical Guidelines for Soil Environmental Investigation and Assessment of Construction Sites, the Technical Guidelines for Risk Assessment of Contaminated Sites (HJ 25.3-2014), the Guidelines for Environmental Investigation, Assessment and Remediation of Industrial Sites (for Trial Implementation) and the Regional Technical Guidelines for Soil Environmental Background Content Statistics (for Trial Implementation) (HJ 1185–2021) and other technical documents. 4. Identification and Management of Land Parcels The competent department of ecology and environment of the provincial people’s government shall, in conjunction with the competent department of natural resources and other competent departments, organise the

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evaluation of the risk assessment report on soil contamination following the regulations of the competent department of ecology and environment under the State Council. Include promptly the land parcels that require the implementation of risk management and control and restoration. Moreover, regularly report to the State Council’s competent department of ecology and environment. The listed land shall not be used for residential, public administration, or public service. 5. Risk Control Measures For the sites in the list, the person responsible for soil contamination shall, by the relevant national regulations and the requirements of the assessment report on the risk of soil contamination, take appropriate risk control measures and regularly report to the competent department of ecology and environment of the local people’s government. Risk control measures should consist of groundwater pollution prevention and control. Risk control measures may be management or engineering in nature. Taking into account technical accessibility, environmental safety, economic costs, time frame, and other factors, the responsible person may take one or more of the following measures: (1) Remove promptly or clean up pollution sources; (2) Take measures such as pollution isolation and interception to prevent the spread of pollution; (3) Carry out environmental monitoring of soil, surface water, groundwater, and air; (4) Take adequate remedial measures promptly if pollution is found to have spread. The same site may also be subject to various appropriate risk control techniques by region or phase according to the actual situation. 6. Risk Control Measures of Local Ecological Environment Departments For the listed sites, the competent department of the ecological environment of the local people’s government may take the following risk control measures according to the actual situation: (1) Propose the designation of isolation areas and submit them to the people’s government at this level for approval before implementation; (2) Conduct soil and groundwater pollution monitoring; (3) Other risk control measures.

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The person responsible for soil pollution should bear the costs incurred by the competent department of the ecological environment of the local people’s government for implementing or organising the implementation of soil pollution risk management and control activities. If the person responsible for soil pollution changes, the relevant costs shall be borne by the entity or individual who inherits its debts and liabilities after the change. 7. Plot Treatment and Remediation For sites on the list that need to be remediated, the person responsible for soil contamination should prepare a remediation plan in conjunction with the general land use and urban and rural planning. Different types of land use should be considered when preparing remediation plans, as the requirements for soil pollution prevention and control may vary depending on the style. For example, urban construction land, defined in the Urban Land Use Classification and Planning and Construction Land Use Standards, is divided into Category 1 and Category 2 land uses. Category I sites, where children and adults are at long-term risk of exposure, are mainly residential sites. Given social sensitivity, sites for primary and secondary schools, health and social welfare facilities in public administration and services, and sites for community parks or children’s parks in parks are also included in Category 1. The second category refers to sites with long-term exposure to adults, mainly industrial sites, logistics, and warehousing sites. 8. Risk Control and Restoration Effect Assessment After the completion of risk control and remediation, the person responsible for soil pollution shall separately commission relevant units to assess the risk control and remediation effect and report the assessment report to the local people’s government ecological and environmental authorities for the record. The unit engaged in the effect assessment of soil pollution risk control and remediation should have the appropriate professional capacity and be responsible for the report’s authenticity, accuracy, and completeness. 9. Plot Removal Suppose the plot of land used for construction meets the risk control and remediation objectives as determined by the risk assessment report

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of soil contamination. In that case, the person responsible for soil contamination and the land use right holder may apply to the competent ecological and environmental authorities of the provincial people’s government to remove it from the list. The department in charge of ecology and environment of the provincial people’s government shall, in conjunction with the department in charge of natural resources and other authorities, organise the evaluation of the report on the assessment of risk control and the effectiveness of remediation. The competent authorities shall promptly remove from the list those parcels of land that have met the standards and can be safely utilised. The report shall also be made public following the regulations and regularly reported to the competent ecological and environmental authorities under the State Council. Construction of any project unrelated to risk control and remediation will be prohibited on construction sites that do not meet the risk control and remediation objectives set out in the report on assessing soil pollution risks. 10. Duties of the Land Tenure Holder For critical soil pollution supervision units, before changing the use of their land for production and operation or their land use rights being withdrawn or transferred, the land use rights holder shall investigate the soil pollution status per provisions. The investigation report shall be sent to the real estate registration agency of the local people’s government. It shall be reported to the competent department of ecology and environment of the local people’s government for the record. For critical soil pollution supervision units, carrying out soil pollution status investigations before changing production and operation land is conducive to ensuring the safety of the changed construction land, especially the safety of the living environment. Before the land use right is taken back and transferred, a soil contamination survey to determine the soil contamination status is conducive to clarifying the responsibility for soil contamination. In addition, if the land use right has been taken back by the local people’s government and the person responsible for the soil contamination is still the original land use right holder, the local people’s government shall organise the implementation of soil contamination risk control and remediation.

CHAPTER 9

Marine Environmental Protection Law

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Marine Pollution Issues 1.1

The Marine Environment

The ocean refers to the vast body of water on the earth’s surface divided by land yet interconnected. The central part is the ocean, and the marginal part is the sea, collectively known to as the oceans. The ocean is a vast and essential element of environmental resources. Seas in China are connected to the Pacific Ocean. They consist of four marine areas: the Bohai Sea, the Yellow Sea, the East China Sea, and the South China Sea, with a total area of about three million square kilometers. The long coastline and the wide continental shelf in China contain rich oil and gas resources. The rational exploitation of marine resources and the prevention and control of marine environmental pollution is an essential task in developing China’s economy, and is one of the primary guaranteed conditions for the sustainable development of China. 1.2

The Concept of Pollution of the Marine Environment

According to the definition of the United Nations Convention on the Law of the Sea, pollution of the marine environment refers to “the introduction by humans, directly or indirectly, of matter or energy into the marine environment, including estuaries, which causes or is likely to

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cause damage to biological resources and marine life, endangers human health, hinders marine activities, including fishing and other legitimate uses of the sea, impairs the quality of seawater use and diminishes harmful effects such as damage to living resources and marine life, endangering human health, impeding various marine activities including fishing and other legitimate uses of the sea, damaging the quality of seawater use and impairing environmental beauty.” Article 95 of China’s Marine Environmental Protection Law provides that: “Pollution damage to the marine environment means the direct or indirect introduction of substances or energy into the marine environment, which has harmful effects such as damaging marine biological resources, endangering human health, hindering fisheries and other lawful activities at sea, damaging the quality of seawater use and impairing the quality of the environment.” The ocean has a certain degree of self-purification. Self-purification refers to pollutants that enter the marine environment are diluted and dispersed by seawater due to the constant movement of seawater and the physical, chemical, and biological processes that occur in the ocean. Alternatively, due to a combination of oxidation, reduction, and biodegradation, they are gradually destroyed by decomposition and transformed into various substances. This transformation process can play a role in purifying seawater, or harmlessly treating pollutants, thus saving the ocean from pollution. However, the self-purification capacity is limited. When the amount and concentration of sewage, wastes, and toxic or harmful substances entering the sea exceed the environmental capacity, i.e., exceeds the self-purifying capacity of the sea, it will cause marine environment pollution. They include marine oil pollution, marine heavy metal pollution, marine thermal pollution, and marine radioactive pollution. Therefore, marine environmental pollution is a natural phenomenon that inevitably occurs when pollutants introduced into the ocean exceed their self-purifying capacity. The hazards of marine environmental pollution are mainly manifested in the following: 1. The harm to marine biological resources. Organic matter and heavy metal pollution of the sea can cause an increase in toxic residues in fish, a decline in fish quality, and even fish death.

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2. The harm to human health. Marine biological resources are one of the primary sources of food and medicine for human beings, and human consumption of marine organisms such as contaminated fish will harm human health. 3. The harm to seawater quality. Many pollutants and harmful energy generated by human activities are constantly entering the ocean, gradually exceeding the natural purification capacity of some sea areas. A large number of pollutants and harmful energy generated by human activity is constantly entering the sea, gradually exceeding the natural purification capacity of some sea areas, causing changes in the composition of the marine environment, deteriorating the quality of seawater and the environment, and causing a decline in the quality of seawater use. Article 196 of the United Nations Convention on the Law of the Sea requires States to take all measures necessary to prevent, reduce and control marine environment pollution resulting from the use of technologies under their jurisdiction or control or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. Another type of damage to the marine environment is “extractive.” For example, overfishing threatens the continuation of fish stocks, and indiscriminate harvesting of coral reefs is tantamount to destroying the homes on which many fish species depend. The protection of marine ecosystems is also noted in the United Nations Convention on the Law of the Sea, which in its article 194 requires States to take the necessary measures to “protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” 1.3

China’s Marine Environmental Protection Legislation

The United Nations Conference on the Human Environment in 1972 promoted the development of China’s environmental legislation, including the legislation for marine environmental protection. In 1974, the State Council of China approved the issuance of the Interim Provisions on the Prevention of Pollution in Coastal Waters, the first normative legal document for the prevention and control of pollution in the marine environment (It was replaced by the Marine Environmental Protection

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Law in 1982.). The Environmental Protection Law (for Trial Implementation), promulgated in 1979, set out the principles for preventing and controlling pollution in the marine environment. In 1982, the Standard for Seawater Quality was promulgated, which divided the requirements of seawater into three categories according to the use of seawater, and stipulated the maximum permissible concentration of harmful substances in seawater according to the needs of the three categories of water quality, in addition to provide protective measures and organs for supervision and implementation. The Environmental Protection Law of 1989 sets out more precise requirements for protecting the marine environment. Article 34 of the new Environmental Protection Law of 2014 stipulates that “The State Council and local people’s governments at all levels along the coast shall enhance the protection of the marine environment. Discharging pollutants into the sea, dumping waste, and building coastal and marine works shall comply with the provisions of laws and regulations inorder to reduce pollution damage to the marine environment.” Article 42(4) stipulates: “Illegal discharge of pollutants through underground pipes, seepage walls, pits, perfusion, alteration or forgery of monitoring date, circumvention of regulation such as abnormal operation of pollution prevention facilities etc shall be prohibited.” This provision prevented land-sourced pollutants from damaging the marine environment. On 23 August 1982, the Marine Environmental Protection Law was adopted at the 24th meeting of the Standing Committee of the 5th National People’s Congress. The Law has subsequently amended four times, in 1999, 2013, 2016 and 2017. The Law is the first comprehensive and specialized Law to protect the marine environment in China. In order to implement the Law, the State Council has promulgated the Regulations on the Administration of Environmental Protection for Marine Petroleum Exploration and Development (1983), the Regulations on the Administration of Marine Dumping (1985), the Regulations on the Prevention of Environmental Pollution from Shipbreaking (1988), the Regulations on the Prevention and Control of Pollutants from Land-based Sources that Damage the Marine Environment (1990), the Regulations on the Prevention and Control of Pollution from Coastal Engineering Construction Projects that Damage the Marine Environment Regulations on the Prevention and Control of Pollution and Damage to the Marine Environment by Coastal Engineering Construction Projects

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(adopted in 1990 and amended in 2007) and other administrative regulations. On 16 November 2010, the Ministry of Transport issued the Administrative Regulations on the Prevention and Control of Pollution of the Marine Environment by Ships and Their Related Operating Activities, which has amended four times on 31 August 2013, 24 December 2013, 13 December 2016 and 23 May 2017. The relevant departments of the State Council have formulated national standards for marine environmental protection, such as the Emission Standards for Pollutants from Ships, the Emission Standards for Oily Sewage from the Offshore Oil Development Industry, the Water Quality Standards for Fisheries, and the Water Quality Standards for Landscape Recreation, as well as marine environmental protection norms, such as the Marine Adjustment Code and the Marine Monitoring Code. China has also actively participated in international cooperation on marine environmental protection and has acceded to some international conventions on the prevention and control of marine environmental pollution, such as the International Convention on Civil Liability for Oil Pollution Damage, the International Convention on Intervention in Cases of Oil Pollution on the High Seas, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, the International Convention for the Prevention of Pollution from Ships, and the United Nations Convention on the Law of the Sea. The Marine Environmental Protection Law was revised then on 25 December 1999, at the 13th Session of the Standing Committee of the Ninth National People’s Congress. On 28 December 2013, it was amended for the first time, according to the Decision on Amending the Marine Environmental Protection Law of the People’s Republic of China and Other Six Laws made at the 6th Session of the Standing Commitee of the 12th Naitonal People’s Congress. The amended Law emphasizes the protection of marine ecosystems holistically. It provides for more comprehensive and systematic regulation of the supervision and management of the marine environment. It adds the following systems: total volume control for key marine areas, emergency response to marine pollution accidents, “three simultaneous,” eliminating outdated processes, sewage charges, declaration, on-site inspection, and environmental impact assessment. The second and third amendments to the Marine Environmental Protection Law were made on 7 November 2016 and 4 November 2017.

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2

Main Legal Provisions of China’s Marine Environmental Protection 2.1

Purpose of Legislation

Article 1 of the Marine Environmental Protection Law (2017) clearly states the purposes of the law, which are “Enacting this law to protect and improve the marine environment, protect marine resources, human health, prevent pollution, maintain ecological balance, safeguard human health, and promote sustainable economic and social development.” It follows China’s environmental protection policy and the tasks of marine environmental protection, which are as follows: 1. “To protect and improve the marine environment, protect marine resources, human health, prevent pollution, maintain the ecological balance and safeguard human health.” 2. The aim of “promoting sustainable economic and social development” shows that marine environmental protection is not only necessary for the development of the marine industry but also affiliated with the development of the whole national economy and even the world economy. 3. To protect the marine environment requires correctly handling the contradiction between economic development and environmental pollution. Protecting the marine environment is not to limit economic development but to promote sustainable economic and social development. 2.2

Scope of Application

Article 2 of the Marine Environmental Protection Law (2017) provides that “This Law shall apply to inland waters, territorial seas, adjacent areas, exclusive economic zone and continental shelf of the People’s Republic of China and other marine areas under the jurisdiction of the People’s Republic of China.” “Any unit or individual engaging in navigation, exploration, exploitation, production, tourism, scientific research, and other activities in the marine areas under the jurisdiction of the People’s Republic of China, or engaing in activities in coastal land areas that affect marine environment shall comply with this Law. “This Law shall also apply

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to the pollution of the marine areas under the jurisdiction of the People’s Republic of China, caused by the marine areas outside the jurisdiction of the People’s Republic of China.” This article declares the effectiveness of the Marine Environmental Protection. 2.3 2.3.1

Supervision and Management of the Marine Environment

Division of Responsibilities in the Supervision and Management of the Marine Environment Compared with other legal systems for the protection of environmental elements, marine environmental protection involves a large number of administrative departments. On the one hand, it is necessary to allow departments to work together and full play of their professional strengths; on the other hand, it is also necessary to have a clear division of work authorization. Article 5 of the Marine Environmental Protection Law (2017) states: “The environmental protection administrative department of the State Council shall be responsible for unified supervision and administration of marine environment, guide, coordinate and supervise marine environmental protection work nationwide, and be responsible for nationwide environmental protection work that prevent and deal with the pollution and damage to marine environment caused by land-based pollutants and coastal engineering construction projects. The State Ocean Administration Department is responsible for the supervision and management of the marine environment, the organization of marine environmental investigation, monitoring, surveillance, evaluation, and scientific research, and the prevention and control of marine engineering construction projects and marine dumping waste on marine pollution damage to the environmental protection work. The State maritime administrative department is responsible for supervision and administration of marine environment pollution by nonmilitary vessels in harbour waters under its jurisdiction, and non-fishing and non-military vessels outside harbour waters outside its jurisdiction, and be responsible for investigating and handling of pollution accidents; board vessels to investigate and handle pollution accidents caused by foreign vessels which navigate, anchor in or work in sea areas under the jurisdiction of the People’s Republic of China. Where a pollution accident by a vessel causes damage to the fishing industry, the fishery administrative authorities of the State shall be invited to participate in investigating and handling the accident.

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The State fishery administrative department is responsible for the supervision and administration of pollution of marine environment caused by non-military vessels inside fishing harbours or by fishing vessels outside fishing harbours, is responsible for ecological protection for fishery areas, investigate and handle fishery pollution accidents that do not fall under pollution accidents stipulated in the preceding paragraph. Military environmental protection department is responsible for the supervision and administration of pollution of the marine environment by military vessels, and investigation and handling of such pollution accidents. The responsibilities of the departments exercising supervision and management of the marine environment by the local people’s governments at or above the coastal county level shall be determined by the people’s governments of the provinces, autonomous regions, and municipalities directly under the Central Government pursuant this Law and the relevant provisions of the State Council.” 2.3.2

Legal Regime for the Supervision and Management of the Marine Environment The Marine Environmental Protection Law (2017) provides for various legal regimes for the supervision and management of the marine environment, which include the following: 1. Marine environmental standards system. Marine environmental standards are a measure to determine and measure the quality of the marine environment. In 1982, China promulgated the Standard for Marine Water Quality (GB 3097-82), which is now mainly implemented in the form of the Standard for Marine Water Quality, the Standard for Marine Sediments, and the Standard for Residual Toxicity of Marine Organisms. In 1982, China promulgated the Standard for Seawater Quality (GB 3097-82). The current implementation is the Seawater Quality Standards (GB 3097-1997). In addition, China’s Comprehensive Sewage Discharge Standards (GB 8978-1996) contain relevant regulations for sewage discharged into several types of seawater. 2. Discharge and dumping fee system. Article 12 of the Marine Environmental Protection Law (2017) stipulates: “Units and individuals discharging pollutants directly into the sea shall pay a pollutant discharge fee pursuant to state regulations. Where environmental protection tax is paid pursuant to the provisons of the laws, payment of pollutant discharge fee is no required. Dumping waste into the sea shall pay a dumping

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fee pursuant to the provisions of the State. Pollutant discharge fees and dumping fees levied pursuant to the provisions of this Law shall be used for remediation of marine environment pollution, and shall not be used for any other purpose. Specific measures shall be formulated by the State Council. 3. Marine functional zoning system. Marine functional zoning refers to demarcation of primary functional areas for maritime use and categories of use, based on marine nature attributes and social attributes, as well as special conditions of marine resources and the environment. Dividing marine areas according to different functions is to use the sea scientifically and reasonably. It is an essential basis for government departments at all levels to make and implement decisions on economic and social development. 4. The system of controlling the total amount of pollutants discharged into the sea in key sea areas and the system of ecological protection red line (Red line means ecological boundary line). Article 3 of the Marine Environmental Protection Law stipulates: “The State shall designate ecological protection red lines at sea areas such as key marine ecological function areas, ecologically sensitive areas and fragile areas, and implement strict protection. The State shall establishe and implement a system for controlling the total amount of discharges from key sea areas, determine the control targets for the total amount of major pollutants discharged into the sea, and allocate emission control quantities to major pollution sources.” In the critical sea areas where the State has established and implemented a total discharge control system, the formulation of water pollutant discharge standards should also take the total discharge control index of major pollutants as an essential basis. 5. Emergency response system for significant pollution incidents at sea. Major marine pollution incidents are often sudden and, as such, can often result in severe damage if measures are not taken promptly. It is essential to adhere to the principle of prevention to reduce the damage caused by major marine pollution incidents, i.e., to anticipate risks and develop emergency response plans in advance adequately. Once an accident has occurred, immediate and planned actions must be implemented. Article 17 of the Marine Environmental Protection Law (2017) stipulates that, suppose that an accident or other sudden incident causes or may cause pollution of the marine environment, the unit or individual concerned must immediately take effective measures, promptly notify those who may be endangered, report to the department exercising supervision

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and management of the marine environment under the Law and accept investigation and treatment. In addition, it provides a civil compensation system for oil pollution damage from ships and an insurance system for oil pollution from ships. 2.4

Provisions on the Protection of Marine Ecosystems

Marine ecological protection is a new addition to the Marine Environmental Protection Law, which has amended in 1999 and included the following contents: 1. The government’s responsibility for ecological protection and remediation. Article 20 of the Marine Environmental Protection Law (2017) stipulates: “The State Council and the people’s governments at all levels along the coast shall take effective measures to protect mangroves, coral reefs, coastal wetlands, islands, bays, estuaries into the sea, important fishery areas and other typical and representative marine ecosystems, natural concentrated distribution areas of rare and endangered marine organisms, areas of important economic value, and areas of significant scientific and cultural significance. The damaged marine ecology with important economic and social value should be improved and restored.” 2. Marine nature reserve and marine special protection zone system. Establishing marine nature reserves and specially protected areas is a proven system of marine environmental protection in developed countries. Establishing marine nature reserves and special protection zones can slow down pollution and ecosystem destruction in near-shore waters, protect essential ecosystems and rare species, and the diversity of marine life. 3. Restrictive regulations on the introduction and development of activities. Article 24 of the Marine Environmental Protection Law (2017) states: “The State shall establish and improve a compensation system for marine ecological protection. The exploitation of marine resources shall be reasonably laid out according to the zoning of marine functions, and the red line of ecological protection shall be strictly observed so as not to cause damage to the marine ecological environment.” Article 25 states, “The introduction of marine animal and plant species shall be scientifically proven to avoid causing harm to the marine ecosystem.”

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4. Preventing damage to marine ecology from mariculture. Article 28 of the Marine Environmental Protection Law (2017) stipulates: “The State encourages the development of ecological fishery, promotes various ecological fishery production methods, and improve the ecological condition of the sea. An environmental impact assessment shall be conducted to construct reconstruct, and expand new mariculture farms. Mariculture shall scientifically determine the density of aquaculture and shall reasonably apply bait and fertilizer and correctly use drugs to prevent marine environment pollution.” 2.5 Provisions on the Prevention of Pollution and Damage to the Marine Environment by Pollutants from Land-Based Sources Land-based sources of pollution is discharging pollutants from land into the sea, causing or likely to cause damage to marine pollution. The relevant legal provisions are as follows. 1. The system of meeting the discharge standards. Article 29 of the Marine Environmental Protection Law (2017) stipulates: “In discharging pollutants from land-based sources into the sea, the national or local standards and relevant regulations must be strictly implemented.” In discharging low-level radioactive wastewater, medical wastewater containing pathogens, domestic and industrial wastewater, and thermal wastewater into the sea, prevention and control measures must be taken to meet the discharge standards. 2. Outfall management system. Paragraphs 1, 3, and 4 of Article 30 of the Marine Environmental Protection Law (2017)stipulate: “The choice of the location of an outfall into the sea shall be reported to the competent administrative department of environmental protection of the people’s government at or above the municipal level of the district after scientific proof according to the zoning of marine functions, the dynamic conditions of seawater and relevant regulations”; “In marine nature reserves, important fisheries waters, seaside scenic spots and other areas requiring special protection, no new outfalls shall be built”; In areas where conditions permit, outfalls shall be set in deep ocean and away from the coast. Installation of outfalls shall be set in accordance with marine functional zoning, dynamic sea-water conditions and available sea-floor engineering equipment.” in order to reduce the pollution damage to the near-shore waters.

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3. Discharge declaration system. Article 32 of the Marine Environmental Protection Law stipulates (2017): “An entity discharging pollutants from land-based sources must declare to the competent administrative department for environmental protection the land-based pollutant discharge and treatment facilities it has, as well as the type, quantity, and concentration of land-based pollutants discharged under normal operating conditions, and provide relevant technology and information on the prevention and control of pollution of the marine environment. Where there is a major change in the type, quantity, and concentration of land-based pollutants discharged, a report shall be made promptly.” 4. A system to prohibit the discharge of specific pollutants. Paragraph 1 of Article 33 of the Marine Environmental Protection Law (2017) prohibits the discharge of oil, acid, alkali, highly toxic waste liquids, and high and medium-level radioactive wastewater into the sea. Paragraph 2 and 3 of Article 33 stipulate: “Discharge of low-level radioactive waste into the seas shall be strictly restricted; where discharge is necessary, the discharge shall strictly comply with the State provisions on prevention of radiation. Discharge of waste water containing hardly degradable organic matter and heavy metals into the seas shall be strictly controlled.” Article 35 also emphasises “strictly controlling the discharge of industrial wastewater and domestic sewage containing organic substances and nutrients” into bays, semi-enclosed seas, and other sea areas with poor self-purification capacity to prevent eutrophication pollution such as red tides. In addition, the Marine Environmental Protection Law (2017) also has explicit provisions in the section on marine ecological protection to prevent pollution of the sea by chemical pesticides, fertilisers, and plant growth regulators used in coastal farmland and pastures and to prevent pollution damage to the marine environment by solid waste, hazardous waste, and atmospheric pollutants. 2.6

Provisions on the Prevention of Pollution Damage to the Marine Environment from Coastal Engineering Construction Projects

Coastal engineering refers to all kinds of projects built on the coastal zone, including port and harbour projects, estuarine water conservancy projects, seabed reclamation projects, tidal power generation projects, and other projects related to the exploitation of marine resources, as well as all other engineering and construction projects built on the coastal zone that may

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have an impact on the marine environment. The coastal zone is the link between the land and the sea and usually covers the area from the coast to 10 km landward and the seaward to the 15 m isobath. Environmental changes on the coast affect the land and marine environment, making it a key area for environmental protection. Unreasonable coastal construction can damage the coastal zone ecosystem, pollute, and damage the marine environment, causing siltation in port channels and destroying the biological environment of marine life. Chapter 5 of the Marine Environmental Protection Law (2017) expressly provides for preventing pollution and damage from coastal engineering. The Regulations on the Prevention and Control of Pollution and Damage to the Marine Environment from Coastal Engineering Construction Projects promulgated by the State Council make further specific provisions. 2.7

Provisions on the Prevention of Pollution and Damage to the Marine Environment from Marine Engineering Construction Projects

In oceanics, the term “marine engineering” was first introduced in the 1960s and its connotation has been gradually fleshed out in the past 30–40 years with the exploitation of marine oil, natural gas, and other minerals. Marine engineering can be divided into coastal, offshore, and deep-sea engineering according to exploiting the sea areas. China’s Marine Environmental Protection Law stipulates that marine engineering refers to construction works below the coastline, such as developing submarine tunnels, laying submarine cables, constructing artificial islands, and conducting marine enclosing works below the coastline. It does not include coastal engineering. Chapter 6 of the Marine Environmental Protection Law (2017) and the Regulations on the Administration of Environmental Protection for Marine Petroleum Exploration and Development make specific provisions on marine environmental protection issues involved in marine petroleum exploration and development, the main activity of marine engineering construction. 1. Environmental impact assessment system and “three simultaneous” systems for constructing marine projects. 2. Special provisions on polluting substances and acts. Materials containing radioactive substances exceeding the standard or easily

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dissolved toxic and harmful substances shall not be used in marine engineering construction projects. Unique polluting acts of marine engineering construction refer to blasting operations and other acts that damage fisheries and other marine resources. Effective measures must be taken to protect marine resources when blasting operations are required in marine engineering construction projects. In offshore oil exploration and oil transmission, adequate measures must be taken to avoid oil spill accidents. 3. Provisions for the discharge of waste from marine engineering construction. Oil-bearing sewage, residual oil, waste oil, oil-based mud and other oily mixtures, industrial waste, and domestic waste are generated from drilling, oil testing, oil recovery, and oil transmission operations. The discharge and disposal of these pollutants must be strictly managed. 4. Provisions for the prevention of oil pollution from offshore operations. Oil pollution from offshore operations is caused by insufficient combustion of oil and gas into the sea during oil trials at sea or by oil spills due to operational accidents. To this end, Article 53 of the Marine Environmental Protection Law (2017) provides that “During oil trials at sea, it shall be ensured that the oil and gas are fully burned and that the oil and oily mixture shall not be discharged into the sea.” Article 54 states, “In the exploration and development of offshore oil, an oil spill contingency plan must be prepared in accordance with the relevant provisions and reported to the sea area dispatching agency of the State administrative department of the sea for the record.”

2.8

Provisions on the Prevention of Pollution and Damage to the Marine Environment by the Dumping of Waste

Dumping of waste into the sea refers to the disposal of waste and other substances into the sea employing ships, aircraft, platforms, and other means of conveyance; the disposal of ships, aircraft, platforms, and other artificial structures into the sea, as well as the disposal into the sea of waste and other substances resulting from the exploration and exploitation of seabed mineral resources and the processing at sea in connection with such exploration and exploitation. “Dumping” in a broader sense also

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includes burning at sea, as Article 61 of the Marine Environment Protection Law (2017) prohibits the burning of waste at sea. Dumping has become one of the most direct and essential causes of pollution damage to marine environment and needs to be strictly regulated. To this end, the Regulations of the Pepple’s Republic of China Concerning the Control of the Dumping Waste at Sea (2017 amended.) has made detailed provisions for the prevention of pollution damage to the marine environment by dumping of waste, as follows: 1. Provisions on the classification and management of waste. Article 11 of Regulations of the Pepple’s Republic of China Concerning the Control of the Dumping Waste at Sea (2017 amended.) stipulates that: wastes are divided into three categories according to their toxicity, harmful substance content, and impact on the marine environment. The first category is substances prohibited from dumping, including those that are highly toxic or cannot be decomposed for a long time, or seriously hinder navigation, fisheries, and other marine activities; The second category is for substances that require a special permit to be dumped, including substances that are not highly toxic to marine organisms, but can be enriched in marine organisms, contaminating aquatic products and endangering navigation, fisheries, and other marine activities; The third category is for other low or non-toxic wastes that do not belong to the first two types of substances. The State Oceanic Administration sets specific standards for these three types of waste. The dumping of foreign waste in our waters is strictly prohibited. 2. Provisions on the delineation of marine dumping areas. The dumpling areas at sea shall be disignated by the competent authority (Now is the State Oceanography Bureau of China and its agencies.). The compentent authority shall be in consultation with the departments concerned on the basis of science, reasonableness, economy, and safety principles, subject to approval by the State Council. To a certain extent, selecting marine dumping areas can avoid or reduce the environmental pollution damage caused by marine dumping. 3. Dumping permit requirements. The unit that needs to dump waste should apply for a permit according to the specific circumstances of its dumping, and it can only dump after obtaining a permit. 4. Legal dumping and the responsibility of dumpers for adverse consequences. In addition to complying with the permit system

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requirements, dumpers must comply with other rules and take responsibility for pollution damage caused by dumping.

2.9

Regulations for the Prevention of Marine Environment Pollution by Ships and Related Operations

The term “ships” in the Marine Environmental Protection Law refers to all motorised and non-motorised vessels. However, it excludes fixed and mobile platforms used in offshore oil exploration and development operations. The Marine Environment Protection Act has specific provisions and systems to prevent and control marine environment pollution from ships and related operations. The principal areas are as follows: 1. Provisions prohibiting the discharge of pollutants. Article 62(1) of the Marine Environmental Protection Law (2017) stipulates: “In the waters under the jurisdiction of the People’s Republic of China, no ship and related operations shall discharge pollutants, waste and ballast water, ship refuse and other harmful substances into the sea in violation of this Law and Regulation.” 2. Provisions on anti-fouling equipment. Article 64 of the Marine Environmental Protection Law (2017) stipulates: “Ships must be equipped with appropriate anti-fouling equipment and devices. Ships carrying cargo that may couse pollution shall have the structure and equipment capable of preventing or mitigating pollution to the marine environment by the cargo.” 3. Certificate system for ships’ anti-fouling capability. Ships must have certificates and instruments to prevent and control pollution of the marine environment according to the relevant regulations and must record the operations involving the discharge of pollutants truthfully. Ships carrying toxic and corrosive cargo must discharge wash water and other residues per the national regulations on sewage discharge from ships and record them faithfully in the logbook. 4. Ship declaration, assessment, and approval system. Article 67 of the Marine Environment Protection Law (2017) provides that “the carrier, owner or agent of a ship cargo with pollution hazards to or from a port must make a declaration to the competent maritime administrative department in advance.” Only after approval, it may enter or leave the port, transit, stay or conduct loading and unloading operations. Article

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70: “Ships and related operations shall comply with relevant laws, regulations, and standards, and take effective measures to prevent marine environment pollution. Maritime administrative departments and other relevant departments shall strengthen the supervision and management of ships and related operational activities. Ships shall report to the competent maritime administrative department for approval according to the relevant provisions when conducting barging operations for bulk liquid pollution-hazardous cargo.” 5. Marine pollution reporting system. Article 72 of the Marine Environmental Protection Law (2017) stipulates that all ships must monitor pollution at sea and must report immediately to the nearest authority entitled to exercise supervision and management of the marine environment per the provisions of the Law when they discover an incident of pollution at sea or a violation of the Law. Civil aircraft discovering marine discharges or pollution incidents must promptly report to the nearest air traffic control unit of civil aviation. The unit receiving the report shall immediately inform the competent marine environmental supervision and management department. 6. The civil liability regime for oil pollution damage from ships, oil pollution insurance, and the fund system for compensation for oil pollution damage. Since oil pollution is the most prevalent and harmful damage to the marine environment caused by ships, the Marine Environmental Protection Law expressly provides a civil liability system for oil pollution damage from ships. It establishes that the liability for oil pollution damage from ships is to be shared between shipowners and cargo owners. It also establishes a fund system for ship oil pollution insurance and compensation for oil pollution damage. The State Council shall formulate specific measures. 2.9.1

Provisions to Prevent Shipbreaking from Polluting and Damaging the Marine Environment Shipbreaking includes shipbreaking on shore and shipbreaking on water. Shoreside shipbreaking is dismantling hulks at piers, docks, and beaches. On-water dismantling refers to the dismantling of hulks that are entirely above water. To prevent environmental pollution from shipbreaking operations, the State Council has formulated the Regulations on the Prevention of Environmental Pollution from Shipbreaking (2017 amended). The main contents of the Regulations are as follows:

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1. Choose the site of shipbreaking yards reasonably. Shipbreaking yards shall not be set up in drinking water sources, desalination intake points, salt farms, important fishing waters, seawater bathing areas, scenic spots, and other areas that require special protection. 2. Equip with anti-fouling facilities. Shipbreaking units must equip with oil intercepting devices, waste oil receiving equipment, oily sewage receiving and treatment facilities or equipment, and waste recycling and disposal sites. The specific ship dismantling operation can only be conducted after being accepted by the environmental protection department. 3. Improve regulations and strengthen supervision. Shipbreaking units should improve their environmental protection rules and regulations and organise their implementation. The competent department supervising shipbreaking pollution has the right to inspect the shipbreaking activities of shipbreaking units. Shipbreaking units that seriously pollute the environment shall take corrective measures within the prescribed time limit by the Law.

3

Protection of Marine Areas and Islands 3.1

Protection of the Sea Area

The marine area is an essential natural resource, a carrier of other natural resources, a spatial basis for developing and using the sea, and a treasure trove of resources. Marine areas belong to the national marine territory. According to the provisions of the United Nations Convention on the Law of the Sea and the Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone, the State enjoys sovereignty over the internal waters and territorial sea. Civil Law has always left ample room for developing legislation on maritime rights in rem. Despite its slow development, the general trend is towards an expansion from nonstatutory ownership to statutory ownership rights, from ownership to use rights, from non-statutory use rights to statutory rights from material meaning of rights in rem to legal meaning of rights in rem, and from separate special legislation to tie-in with property legislation. At present, the main legal provisions for the protection of China’s maritime areas include the following: 1. The system of property rights in maritime areas. Article 247 of the Civil Code of China stipulates that the State owns maritime areas and

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Article 328 stipulates that the lawful obtained right to use sea areas shall be protected by law. The system of marine property rights (including the system of ownership and use of marine areas) is an inevitable choice for the effective use of state-owned marine resources. The right to use the marine area created per the principles of property law, through the contractualisation of the distribution of rights and the legalisation of rights and obligations, gives the user the right of occupation, to use and benefit from the marine areas. 2. The management system of the use of sea areas. The Law on the Administration of the Use of Sea Area, published on 27 October 2001, clearly states that “sea areas are owned by the State and the State Council exercises ownership on behalf of the State.” At the same time, based on the principle of separation of ownership and use, the system of the right to use the sea areas is established. Article 3 states that “Units and individuals using the sea areas must obtain the right to use the sea areas under the law.” It also stipulates how the right to use the sea is to be acquired and the system of paid use. In addition, the relevant departments in China also promulgated the Measures for the Registration of Sea Area Use Rights (promulgated in 2006, invalidated in 2019) and the Specification for the Marine Cadastral Survey (HY/T124-2009). 3.2

Protection of Islands

An island is a naturally formed land area surrounded by seawater on all sides and above the water’s surface at high tide, including resident and uninhabited islands. Among them, uninhabited islands refer to those islands that do not belong to the residential address registered by the residents’ registry. The State owns uninhabited islands. The State Council exercises ownership of uninhabited islands on behalf of the State. It is generally accepted that an island is a generic term for an island, a rock, a reef, or a low-tide plateau. A low-tide plateau is a naturally formed area of land surrounded by seawater and above the water at low tide but submerged at high tide. In China, land areas in the ocean bigger than 500 square metres are usually referred to as islands, while those smaller than 500 square metres are referred to as reefs. Island conservation refers to protecting the ecosystems of islands and their surrounding waters, the natural resources of uninhabited islands, and unique purpose islands. The ecosystem of an island and its surrounding waters are the organic complex

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of the biotic and abiotic environment that sustains the island, its shoreline, its beaches, its vegetation, its freshwater, and its surrounding waters. The ecosystems and natural resources of islands are unique and independent and are closely interdependent and interlocked. If the natural environment of an island is seriously polluted or damaged, it will inevitably lead to the deterioration and imbalance of its ecosystem. The rights and interests of islands are directly related to the fundamental rights of citizens. They are not only limited to the units and islanders of the resident islands but also to other units and citizens whose permanent residence is outside the islands, which can also invest in the development and use of the islands. Citizens’ legitimate rights and interests to develop and use the islands should be fully respected. That is to say, as long as they obtain the right to use the island through legal procedures, comply with the management system of the island, and fulfil their obligations to protect the resources and ecological environment of the island, the lawful rights and interests of citizens should be protected by law not be illegally deprived. The Law on the Protection of Sea Islands of the People’s Republic of China has been in force since 1 March 2010. In addition, the following laws and regulations are also applicable to the development and use of various resources and the protection of the ecological environment on the islands: the Environmental Protection Law, the Land Management Law, the Mineral Resources Law, the Fisheries Law, the Sea Area Use Management Law, the Marine Environmental Protection Law and the Regulations on the Protection and Use of Uninhabited Sea Islands. The main contents of China’s Law on the Protection of Sea Islands include: 1. Purpose of legislation and fundamental principles. The legislative objectives of the Law on the Protection of Sea Islands are to protect the ecosystem of sea islands and their surrounding waters, to reasonably develop and utilise the natural resources of sea islands, to safeguard national maritime rights and interests, and to promote sustainable economic and social development. The basic principles of island protection are scientific planning, the priority of protection, reasonable development, and sustainable use. 2. Island protection planning. The State implements the system of island protection planning. The island protection plan is the basis for the protection and utilisation activities of the island. The formulation of island protection plans shall follow the principle of being conducive to protecting and improving the island’s ecosystem and surrounding waters and promoting the island’s sustainable economic and social development.

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The national island protection plan shall, based on the location, natural resources, environment, and other natural attributes of the island, as well as the protection and utilisation status, determine the following: the principles of island classification and security and the use of uninhabited islands, as well as the need to focus on the restoration of islands, etc. The State establishes and improves a statistical survey and management information system for sea islands. 3. The general provisions of the protection of the island. The State Council and local coastal people’s governments at all levels shall take measures to protect the island’s natural resources, the landscape, and historical and cultural relics. The following acts are prohibited on the island: altering the island’s coastline in the nature reserve, harvesting, and destroying coral and coral reefs, and cutting mangrove forests in the sea around the island. The State protects the vegetation on islands, promotes the conservation of freshwater resources on islands, supports the use of islands for scientific research activities, protects and manages biological species on islands by the law, and supports the establishment of experimental bases for the development and use of renewable energy and ecological construction on islands. The State arranges special funds for the protection of islands, for the protection of islands, environmental restoration, and scientific research activities. 4. Protection of the ecosystem of inhabited islands. The development and construction of inhabited islands shall comply with the provisions of the relevant laws and regulations on urban and rural planning, environmental protection, land management, sea use management, water resources, and forest protection, and protect the ecosystem of the island and its surrounding waters. The development and construction of inhabited offshore islands shall not exceed the environmental capacity of offshore islands. Inhabited islands and their surrounding waters should be designated to prohibit and restrict the area’s development. Strictly limit the following acts: mining sand on the beach, the construction of buildings or facilities, reclamation, sea enclosures, and other actions of altering the coastline and the construction of reclamation and island projects. 5. Protection of uninhabited islands. Uninhabited islands which are not approved for use shall be maintained in their present State. Such activities as quarrying, dredging of sea sand, logging and production, construction, and tourism are prohibited. The collection of biological and non-biological samples on uninhabited islands is strictly restricted. The development and use of the available uninhabited islands identified

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in the national island protection plan shall comply with the programme on protection and use. Developers should take strict environmental protection measures to avoid causing damage to the ecosystem of the island and its surrounding waters. 6. Protection of special-use islands. The State shall provide special protection to islands with a particular use or protection value, such as islands where the base points of the territorial sea are located, islands for national defence purposes, and islands in marine nature reserves. 7. Supervision and inspection. Relevant departments of the people’s governments at or above the county level shall supervise and inspect inhabited islands’ protection, development, and construction following the Law. The competent administrative departments of marine affairs shall supervise and inspect uninhabited islands’ safety and rational use under the Law. The competent administrative departments of marine affairs and their sea surveillance agencies shall supervise and inspect the protection of the ecosystems of the sea areas surrounding the islands according to law.

CHAPTER 10

Environmental Noise Pollution Prevention and Control Law

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Environmental Noise Pollution Issues 1.1

The Concept of Environmental Noise

Noise is a sound that originates from the vibration of a solid, liquid, or gas and is harmful to human health. From a physical point of view, noise is the irregular and chaotic combination of various sounds of different frequencies and intensities. Environmental noise in environmental law refers to the sound generated in industrial production, construction, transportation, and social life that interferes with the surrounding environment. The sources and types of noise are diverse. According to the mechanism of noise generation, the extent of temporal variation, the area of generation, and the source of pollution, noise can be classified into categories such as mechanical, aerodynamic, and electromagnetic noise; steady state and non-steady state noise; urban, rural and marine environmental noise; and industrial, construction, traffic, and social life noise. China’s legislation on preventing and controlling environmental noise pollution is directed at these four categories. They are all human-induced noise. According to the national environmental quality standards for noise, the standard values for residential, cultural, and educational areas are 55 dB(A) during the day and 45 dB(A) during the night, 60 dB(A) during the day, and 50 dB(A) during the night for mixed residential, commercial and industrial areas; and 65 dB(A) during the day and 55 dB(A) during the night for concentrated industrial regions. © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_10

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1.2

The Characteristics and Harms of Environmental Noise Pollution

China’s “Environmental Noise Pollution Prevention and Control Law” defines environmental noise and pollution by taking the highest limit value determined by the national environmental noise emission standards as the boundary. Article 2, paragraph 2 of the Law stipulates that environmental noise pollution “refers to the phenomenon that the environmental noise generated exceeds the national environmental noise emission standards and interferes with the normal life, work and study of others.” Compared with other types of environmental pollution hazards, environmental noise pollution has the following characteristics: Firstly, noise pollution is a sensory public hazard. Noise pollution only constitutes a hazard when the noise source is linked to human hearing through communication. Owing to variations in individuals’ physical condition, physiological and psychological tolerance, and the different environments in which people live, different people have different reactions to the same intensity of noise, and different people have different degrees of harmful results. Secondly, noise pollution is an energy-based pollution. It is caused by the excessive release of sound energy in the environment. The scope of pollution is consistent with the range of sound energy that the noise can ripple. The degree of pollution is positively related to the intensity of the sound energy of the noise source. If the noise energy is intense, the pollution is heavy; if the noise energy is weak, then the pollution is light; if the noise energy disappears, the pollution stops. Thirdly, noise pollution is a localised and multiple public hazard. The localised nature of noise pollution means that its impact on the surrounding environment only affects the immediate area, unlike atmospheric or marine pollution, which is very extensive. However, the distribution of noise sources is numerous and dispersed. For example, every operational vehicle is a noise source in traffic noise, which is large and dispersed, making it difficult to control noise pollution. Fourthly, noise pollution is a temporary hazard. Noise pollution arises with the generation of noise energy and disappears with the disappearance of noise energy. Although noise can also be transmitted with sound energy and spread in a specific spatial and temporal range, noise pollution will never accumulate, remain, and migrate in the environmental body like other pollutants. The harm caused by noise to humans is only limited to

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a specific spatial and temporal range; once the spatial and temporal range has shifted and changed, the detrimental effects of the noise on humans will disappear. Fifthly, noise pollution is a public hazard that cannot be easily assessed. It is impossible to measure or evaluate the harm caused by environmental noise pollution to the population, especially to those sensitive to environmental changes, by a specific objective value. In judicial practice, the maximum tolerable noise limit is usually used to determine whether it might cause disturbance or nuisance.

2 Environmental Noise Pollution Prevention and Control Legislation The enactment of laws and regulations for the prevention and control of environmental noise pollution, the promulgation of a series of sound environment quality standards and environmental noise emission standards, and the control of noise hazards in accordance with the law are the primary means of preventing and controlling environmental noise pollution. As early as the 1950s, China’s “Factory Safety and Health Regulations” provided prevention and control measures for various noise sources in factories. In 1957, China’s “Regulations on Punishment for Public Security Management” also provided for the punishment of those who make loud noises arbitrarily in the city, affecting the work and rest of the surrounding residents and failing to listen to stop them. In 1979, the Environmental Protection Law (for Trial Implementation) was promulgated to prevent and control environmental noise pollution in urban areas, industry, and transportation. The Leading Group of Environmental Protection of the State Council issued the Environmental Noise Standards for Urban Areas in 1982, the first comprehensive environmental noise standard promulgated in China regarding environmental noise pollution prevention and control. On 26 September 1989, the State Council issued the Regulations on the Prevention and Control of Environmental Noise Pollution, which came into effect on 1 December 1989. The Law on Prevention and Control of Environmental Noise Pollution has been in force since 1 March 1997 and was amended in 2018. The Law of the People’s Republic of China on Prevention and Control of Noise Pollution shall come into force on 5 June 2022. The Law on Prevention and Control of Environmental Noise Pollution is repealed simultaneously.

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After the promulgation of the Law on Prevention and Control of Environmental Noise Pollution, the relevant administrative organs promulgated a series of regulations and documents on the prevention and control of environmental noise pollution, such as the Notice on Strengthening Supervision and Management of Environmental Noise Pollution during the College Entrance Examination issued by the State Environmental Protection Administration several times from 1998 to 2001, the Notice on Strengthening Management of Social Life Noise Pollution issued by the State Environmental Protection Administration and other three organs in 1999, and the Notice on Strengthening Management of Social Life Noise Pollution issued by the State Environmental Protection Administration in 2001. The Ministry of Transport and Communications issued the Regulations on Noise from Aircraft Types and Airworthiness Certification in 2017.

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Main Legal Provisions for Prevention and Control of Environmental Noise Pollution in China

Supervision and Management System of Environmental Noise Pollution Prevention and Control

China implements an environmental protection management system that combines unified management and departmental division of labour. Therefore, the Law on Prevention and Control of Noise Pollution stipulates that the competent department of the ecological environment under the State Council shall implement unified supervision and management of the prevention and control of noise pollution throughout the country. Local people’s government departments in charge of the ecological environment are responsible for the implementation of unified supervision and management of noise pollution prevention and control in their administrative regions. Housing and urban–rural construction, public security, transportation, railway supervision and management, civil aviation, maritime, and other departments at all levels, within their respective areas of responsibility, to implement supervision and management of construction, transportation, and social life noise pollution prevention and control. In the exercise of the authority of supervision and management of environmental noise pollution, the competent department of ecology and

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environment and other departments with the responsibility of supervision and management of noise pollution prevention and control shall have the right to conduct an on-site inspection of the units or places emitting noise. The person inspected shall truthfully reflect on the situation, provide the necessary information, and not refuse or obstruct. The department or personnel carrying out the inspection shall keep confidential any commercial secrets known during the on-site inspection. Any unit or individual shall have the right to report acts causing noise pollution to the competent department of ecology and environment or other departments with supervisory and administrative responsibilities for noise pollution prevention and control. 3.2

The Primary Responsibilities of People’s Governments at All Levels in the Prevention and Control of Environmental Noise Pollution

1. The State Council and local people’s governments at all levels shall incorporate the prevention and control of environmental noise pollution into environmental protection planning and take economic and technical policy measures conducive to sound environmental protection. 2. Take into full consideration the impact of noise generated by urban and rural areas development, transformation, and construction projects on the surrounding living environment, integrated planning, reasonable arrangements for land use, and construction layout to prevent and reduce noise pollution. The relevant environmental impact chapter, description, or report shall include the prevention and control of noise pollution. 3. The State shall encourage and support scientific and technological research and development, the transformation of results and the promotion and application of noise pollution prevention and control, strengthen the training of professional and technical personnel for noise pollution prevention and control, and promote scientific and technological progress and industrial development of noise pollution prevention and control. 4. Units and individuals who have made significant achievements in preventing and controlling noise pollution shall be commended and rewarded in accordance with national regulations.

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5. Local people’s governments at or above the county level shall, per national noise environmental quality standards and territorial spatial planning as well as the current status of the land, delineate the areas where various types of noise environmental quality standards apply in their administrative regions. Areas with a concentration of buildings mainly for residential, scientific research, medical and health care, cultural and educational purposes, offices of institutions and groups, and social welfare are designated as noise-sensitive areas to strengthen the prevention and control of noise pollution. The areas to which the environmental quality standards for noise apply and the areas of concentration of noise-sensitive buildings should be made known to the community. 3.3

Legal Provisions of the Sound Environment Standards

The Environmental Noise Pollution Prevention and Control Law provides standards related to environmental noise pollution prevention and control, including national environmental quality standards, environmental noise emission standards, and relevant monitoring and methodological standards. As the national standards already cover all aspects of environmental noise pollution and are relatively strict, there is no need to develop separate local standards. 3.3.1 Sound Environment Quality Standards China’s “Environmental Noise Pollution Prevention and Control Law” stipulates that the State Council’s administrative departments in charge of environmental protection shall formulate national sound environment quality standards for different functional areas, respectively. National environmental noise emission standards are formulated according to the national sound environment quality standards and national economic level and technical conditions. The primary sound environment quality standard that has been promulgated in China is the Sound Environment Quality Standard (2008). This standard classifies urban areas into five categories from 0 to 4:

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Class 0, 50 dB daytime, 40 dB nighttime, for areas with a particular need for silence, such as convalescent areas; Class 1, 55 dB daytime, 45 dB nighttime, for residential, health, cultural and educational, research and design, administrative, and office areas, where quiet is required; Class 2, 60 dB daytime, 50 dB nighttime, for areas where the primary function is commercial and financial, market trade, or a mix of residential, commercial, and industrial areas, and where residential quiet is required; Class 3, 65 dBA daytime and 55 dBA nighttime, applies to areas where industrial production, storage, and logistics are the main functions and where it is necessary to prevent industrial noise from having a severe impact on the surrounding environment; Class 4 standard, 70 dBA during daytime and 55 dBA during nighttime. It applies to areas within a certain distance on both sides of the traffic arteries, where it is necessary to prevent traffic noise from seriously impacting the surrounding environment. These include highways, primary roads, secondary roads, urban expressways, urban trunk roads, urban secondary roads, urban railways (surface sections), areas on both sides of inland waterways, and areas on both sides of railway trunk lines. Other sound environment quality standards include the Urban Area Ambient Vibration Standard. In addition, the State has also developed technical specifications for the implementation of environmental quality standards, such as the Method of Measuring Noise at Construction Sites, the Method of Measuring Noise at Industrial Boundaries, the Method of Measuring Ambient Vibration in Urban Areas, and the Method of Measuring Aircraft Noise around Airports. 3.3.2 Environmental Noise Emission Standards Environmental noise emission standards are a direct basis for determining whether the noise emissions of enterprises and institutions exceed the standards. Noise emission refers to the radiation of noise from a sound source to the surrounding living environment. The environmental noise emission standard is the maximum limit of noise emission from a noise source to the surrounding environment. China has promulgated a series of environmental noise emission standards, including “Environmental Standards for Aircraft Noise around

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Airports,” “Railway Boundary Noise Limits and Their Measurement Methods,” “Environmental Noise Emission Standards for Industrial Enterprise Boundaries,” “Noise Limits for Construction Boundaries,” “Fixed Noise Limits for Automobiles,” “Noise Limits and Measurement Methods for Vehicles Accelerating Outside Vehicles,” “Fixed Noise Emission Limits for Motorcycles and Mopeds The noise limits for motorbikes and mopeds and the noise limits for accelerated motorbikes and mopeds and the methods of measurement.”

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Supervision and Management System for the Prevention and Control of Environmental Noise Pollution 4.1

Environmental Impact Assessment and “Three Simultaneous” System

The “Noise Pollution Prevention and Control Law” provides that the construction, alteration, and expansion of projects that may produce noise pollution shall be subject to environmental impact assessment in accordance with the law. The “three simultaneous” system shall be implemented to prevent and control noise pollution. That is, the construction project’s noise pollution prevention and control facilities should be designed, constructed, and put into use simultaneously as the main project. Before the construction project is put into production or use, the construction unit shall, in accordance with the relevant laws and regulations, accept the construction of supporting facilities to prevent and control noise pollution. The acceptance report prepared shall be made public to the public. Construction projects that have not been accepted or have not passed the acceptance test shall not be put into production or use. 4.2

Elimination System for Outdated Processes and Equipment

The State encourages and supports the research and development, popularisation, and application of low-noise processes and equipment and implements a system for eliminating backward processes and equipment that cause severe noise pollution.

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The development and reform department of the State Council, in conjunction with the relevant departments of the State Council, shall determine the deadline for eliminating processes and equipment with severe noise pollution and include them in the catalogue of comprehensive industrial policies of the State. Producers, importers, sellers, or users shall stop producing, importing, selling, or using the equipment listed in the catalogue specified in the preceding paragraph within the prescribed period. The adopter of a process shall, within a specified period, cease to use the process listed in the catalogue specified in the preceding paragraph. 4.3

Environmental Noise Monitoring System

The Law on Prevention and Control of Noise Pollution stipulates that the competent department of the State Council for the ecological environment is responsible for formulating noise monitoring and evaluation norms, organising the sound environment quality monitoring network in conjunction with relevant departments of the State Council, planning the setting of national monitoring stations (points) for sound environment quality, organising the monitoring of the quality of the sound environment nationwide, promoting monitoring automation, and releasing national sound environment quality information in a unified manner. Local people’s government departments in charge of ecology and environment, together with relevant departments, shall set up monitoring stations (points) for sound environment quality in their administrative regions following the regulations, organise and carry out sound environment quality monitoring in their administrative regions, and regularly publish information on the status of sound environment quality to the society. The ecological environment and other departments of local people’s governments shall strengthen the investigation and monitoring of noise emissions in critical areas, such as around noise-sensitive buildings.

5 Legal Provisions on the Prevention and Control of Industrial Noise Pollution Industrial noise is the sound generated by using fixed equipment in industrial production activities that interfere with the surrounding environment. The Law on the Prevention and Control of Environmental

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Noise Pollution establishes a particular chapter on the prevention and control of industrial noise pollution, with the following provisions: 5.1

Requirements for Noise Emissions

Enterprises, institutions, and other production operators emitting industrial noise shall take adequate measures to mitigate vibration and noise and obtain an emission permit or fill in an emission registration form following the law. Entities implementing emission permit management must not discharge industrial noise without an emission permit and are required to carry out noise pollution prevention and control in accordance with the requirements of the emission permit. The location of industrial enterprises shall conform to the spatial planning of the country and relevant planning requirements. Local people’s governments at or above the county level shall optimise the layout of industrial enterprises according to the planning requirements to prevent industrial noise pollution. New construction of industrial enterprises that emit noise is prohibited in areas where noise-sensitive buildings are concentrated. Where industrial enterprises are modified or expanded, adequate measures shall be taken to prevent industrial noise pollution. 5.2

List System for Noise Emission Units

The competent department of the ecological environment of the local people’s government at or above the municipal level under the jurisdiction of a municipality shall, per the provisions of the competent department of the ecological environment under the State Council, compile a list of crucial noise emission units in the administrative region based on noise emissions and requirements for improvement of sound environmental quality, make it public and update it in due course. 5.3

Providing a Noise Monitoring System for Industrial Equipment

The units under the management of emission permits shall carry out selfmonitoring of industrial noise by the regulations. Original monitoring records shall be kept, monitoring results shall be made public to the

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community, and they shall be responsible for the authenticity and accuracy of the monitoring data. In accordance with national regulations, key noise emission units shall instal, use and maintain automatic noise monitoring equipment, and network with the monitoring equipment of the competent ecological and environmental authorities.

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Legal Provisions on the Prevention and Control of Noise Pollution in Building Construction

Construction noise refers to the sound generated during the construction of a building that disturbs the surrounding living environment. Chapter 5 of the Noise Pollution Prevention and Control Law, Article 39~43, stipulates the prevention and control of noise pollution in construction. The main provisions are: 1. “Construction noise,” as used in this Law, refers to sounds generated during the construction process that interferes with the surrounding living environment. 2. The construction unit shall include the cost of noise pollution prevention and control in the project cost by regulations. The construction unit’s responsibility for noise pollution prevention and control shall be clearly defined in the construction contract. 3. In construction operations where noise-sensitive buildings are concentrated, priority should be given to using low-noise construction techniques and equipment. 4. In the construction of noise-sensitive buildings in concentrated areas, the construction unit shall, by national regulations, set up an automatic noise monitoring system, network with the supervision and management department, keep the original monitoring records, and be responsible for the authenticity and accuracy of the monitoring data. 5. In areas where noise-sensitive buildings are concentrated, construction activities that generate noise during nighttime are prohibited, except for repair and emergency construction, continuous construction due to production process requirements, or other special needs.

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Legal Provisions on the Prevention and Control of Noise Pollution from Transportation

Transportation noise is the sound generated by motor vehicles, railway locomotives, motor vessels, aircraft, and other means of transportation during operation that interferes with the surrounding environment. Transport noise pollution is deteriorating and has become the focus of environmental noise pollution prevention and control. The Law on Prevention and Control of Environmental Noise Pollution provides for a particular chapter on the prevention and control of transport noise pollution, the main contents of which are: 7.1

Prevention of Excessive Noise Emissions from Finished Vehicles

The Noise Pollution Prevention and Control Law stipulates that the muffler and horn of a motor vehicle shall comply with national regulations. Driving a motor vehicle with unauthorised modifications, such as removing or damaging the muffler or adding an exhaust pipe to cause noise pollution by blasting or high-speed driving, is forbidden. Using motor vehicle audio equipment should control the volume to prevent noise pollution. Motor vehicles should be repaired and maintained to maintain good performance and prevent noise pollution. 7.2

Use of Sound Devices by Regulations

When motor vehicles, railway rolling stock, urban rail vehicles, motor vessels, and other means of transport are in operation, they shall use the horn and other sound devices by the regulations. The installation and use of sirens on police vehicles, fire rescue vehicles, engineering rescue vehicles, ambulances, and other motor vehicles shall comply with the regulations of the State Council’s public security and other departments. Sirens shall not be used for non-emergency tasks.

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Provisions on Areas and Hours for Prohibiting Driving and Horn Use

The competent department of the ecological environment of the local people’s government, in conjunction with the public security authorities, may, following the needs of acoustic environmental protection, designate road sections and hours where the driving of motor vehicles and the use of horns and other acoustic devices are prohibited. Public announcements shall be made to the public, and relevant signs and markings shall be set up by the traffic management departments of the public security authorities in accordance with the law. 7.4

Measures For the Prevention and Control of Noise Pollution Generated in Road Construction and Infrastructure Development

The requirements for preventing and controlling noise pollution should be specified when formulating engineering specifications for transport infrastructure. New construction, alteration, and expansion of motorways, urban elevated, railway, and urban rail transit lines passing through areas with concentrations of noise-sensitive buildings should comply with the requirements of the engineering technical specifications as well as standards for the relevant transport infrastructure. Construction units shall instal sound barriers or take other measures to reduce vibration and noise at key road sections that may cause noise pollution. 7.5

Provisions to Mitigate Noise Pollution During Traffic Command Operations

When using broadcast speakers at stations, railway yards, ports, and similar locations for commanding operations, volume control should be exercised to mitigate noise pollution. The operating units of urban rail transit and railway transport enterprises shall strengthen the maintenance and servicing of urban rail transit lines and urban rail transit vehicles, railway lines, and railway rolling stock. Maintain to reduce vibration, reduce noise and ensure regular operation of facilities. They should also conduct monitoring following national

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regulations, keep original monitoring records, and be responsible for the authenticity and accuracy of monitoring data. 7.6

Measures to Prevent and Control Aircraft Noise Pollution

The measures include the following: civil aircraft shall not fly over urban areas except for take-offs and landings or under the circumstances prescribed by law. The city people’s government shall designate an area around the clearances for aircraft take-off and landing where the construction of noise-sensitive buildings is restricted. If noise-sensitive buildings are constructed in the area, the construction unit shall take measures to mitigate and avoid the noise impact generated by the operation of the aircraft. The civil aviation department shall take adequate measures to reduce environmental noise pollution.

8 Legal Provisions on the Prevention and Control of Social Life Noise Pollution Social life noise is disturbing the surrounding environment other than industrial noise, construction noise, and traffic noise generated by human activities. The pollution of social production noise, especially the pollution of environmental noise generated by catering services and entertainment venues, is the focus of environmental noise pollution prevention and control, and the Environmental Noise Pollution Prevention and Control Law has a particular chapter. 1. Provisions for the Prevention and Control of Environmental Noise Pollution in Cultural and Entertainment Establishments The business managers of cultural entertainment, sports, and catering establishments shall take adequate measures to prevent and mitigate noise pollution. 2. Provisions on the prevention and control of environmental noise pollution in commercial business activities The use of loud hailers or other methods of continuously and repeatedly emitting high noise for advertising in commercial business activities

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is prohibited. The operator shall take adequate measures to prevent pollution from other noise generated in commercial business activities. 3. Provisions for the prevention and control of noise pollution from sound equipment The use of loud hailers is prohibited in areas with a concentration of noise-sensitive buildings, except in emergencies and under exceptional circumstances as prescribed by the local people’s government. The organisation or conduct of recreational and fitness activities in public places such as streets, squares, and parks shall comply with the regulations of the managers of public places concerning the areas, periods, and volume of activities and take adequate measures to prevent noise pollution. Sound equipment shall not be used in violation of the regulations to generate excessive noise. Managers of public places shall specify the areas, periods, and volume of entertainment, fitness, and other activities. They may take measures to strengthen management, such as setting up automatic noise monitoring and display facilities. 4. Provisions for the prevention and control of environmental noise pollution generated by indoor decoration activities For indoor renovation activities in completed residential buildings, shops, office buildings, and other buildings delivered for use, the prescribed limited hours of operation shall be followed, and effective measures shall be taken to prevent and mitigate noise pollution.

CHAPTER 11

Law on the Prevention and Control of Pollution by Toxic and Hazardous Substances

1 Overview of Pollution Prevention and Control of Toxic and Hazardous Substances 1.1

Toxic and Hazardous Substances Pollution

In environmental jurisprudence, other types of pollution than that by environmental elements can be categorised as pollution by toxic and hazardous substances. National environmental protection often adopts special legislation for these substances. Based on international practice and the current situation of China’s legislation, we classify toxic and hazardous substances into three main categories: toxic chemicals, solid waste, and radioactive substances. Toxic chemicals are chemicals that, when introduced into the environment, harm health and the environment through environmental accumulation, bioaccumulation, biotransformation, or chemical reactions; or present a severe hazard and potential danger to humans through exposure. Solid waste pollution refers to the phenomenon that the improper disposal of solid waste into the environment harms human health or property safety and damages the natural ecosystem, resulting in the deterioration of environmental quality. The prevention and control of solid waste pollution of the environment should comply with the following principles: the “three principles (i.e., reduction, resource, and harmless principle),” the principle of complete process control, the principle © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_11

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of combining centralised and decentralised disposal, the principle of classification management. Radioactive pollution refers to the phenomenon that the radioactive substances emitted from human production and living activities cause changes in the level of radioactivity in the environment, thus endangering human health. Toxic and harmful substances pollution has the following characteristics: 1. Many toxic and harmful substances are carcinogenic, teratogenic, or cause genetic mutations, which seriously impact the survival and reproduction of human beings. 2. Toxic and harmful substances enter the biological realm of plants, animals, and humans through the medium of the environment. Many inorganic and organic toxins can be enriched, accumulated, and transferred within living organisms, eventually threatening and endangering human health through the food chain. 3. When toxic and harmful substances enter the environment, some can undergo chemical reactions, transforming into more harmful secondary pollutants and causing more harm to the ecosystem and human health. 4. Most toxic and harmful substances are chemically stable, not easily decomposed by organisms, and remain in nature for a long time. The impact of toxicity on human health is stable and long-lasting, and the disturbance and damage to ecological balance are also severe. 5. Toxic and harmful substances enter different environmental media to form different environmental elements of pollution, such as into the atmosphere for atmospheric pollution and the water body for water pollution. Therefore, the classification criteria of pollution by toxic and hazardous substances and pollution by environmental elements are relative. 6. Compared with typical wastewater and waste gas, toxic and hazardous substances are more physically stable, have a distinct material form, and are highly disposable. It is both a pollutant and a resource and energy that can be effectively reused. While reducing the number of pollutants and rendering them as harmless as possible, we must do our utmost to turn them into resources, i.e., to turn harm into profit. Therefore, pollution prevention and control of

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toxic and hazardous substances combined with clean production and the establishment of a circular economy is the direction of the development of contemporary environmental protection. The prominent feature of pollution of toxic and hazardous substances is that such pollutants are difficult or impossible to be degraded by the human body or the environment. The environmental pollution and hazards they cause are often long-lasting and difficult to eliminate. Generally speaking, toxic and hazardous substances not only pollute all environmental elements, such as the atmosphere, water bodies, soil, and sea but also pose a direct risk to human life and health without passing through the elements of the environmental media. Compared to general pollutants, they are more harmful requiring strict legal control. 1.2 The Law on the Prevention and Control of Pollution by Toxic and Hazardous Substances The law on the prevention and control of pollution by toxic and hazardous substances is a class of legal norms with the prevention and control of pollution by toxic and hazardous substances as its legislative object. The Law on the Prevention and Control of Pollution by Toxic and Deleterious Substances is directly concerned with controlling pollutants and pollution sources and preventing toxic and deleterious substances from entering the cycle of the ecosystem. The law is expressed as special legislation on preventing and controlling toxic and harmful substances that are particularly harmful to human health, such as solid waste, radioactive substances, toxic chemicals, and pesticides. The main features are: 1. The Law on the Prevention and Control of Pollution by Toxic and Deleterious Substances is an integral part of the Law on the Prevention and Control of Environmental Pollution, which provides for the prevention and control of environmental pollution from a different level and perspective than the Law on the Prevention and Control of Pollution by Environmental Elements. The Law on the Prevention and Control of Pollution of Environmental Elements focuses on the comprehensive protection of environmental elements. In contrast, the Law on the Prevention and Control of Pollution of Toxic and

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Deleterious Substances focuses on the prevention and control of the hazards of a particular pollutant to various environmental elements. 2. The law on the prevention and control of pollution by toxic and hazardous substances is a special legislation on the prevention and control of a specific type of pollutant or source of pollution, which aims to prevent the disturbance and damage of a specific pollutant to the ecological balance and human health. 3. The Law on the Prevention and Control of Pollution by Toxic and Deleterious Substances is more focused and covers many areas. The supervision and control system it establishes is more specific than the Law on the Prevention and Control of Pollution by Environmental Elements. Currently, China’s laws and regulations on preventing and controlling pollution by toxic and hazardous substances mainly include the following: Law on the Prevention and Control of Environmental Pollution by Solid Waste (adopted in 1995, amended twice in 2013 and 2020), Measures for the Management of the Radioactive Environment (adopted in 1990, no longer in force and replaced by the Law on the Prevention and Control of Environmental Pollution by Radioactive pollution adopted in 2003 and amended in 2017), Standards for the Safe Use of Pesticides (adopted in 1984), and Regulations on the Administration of Pesticides (implemented in 1997, amended in 2001). The Law on the Prevention and Control of Environmental Pollution by Solid Waste has been enacted for a specific category of toxic and hazardous substances. Most of the legislation on preventing and controlling pollution by toxic chemicals, radioactive substances, and pesticides is in the form of departmental regulations or is scattered in other normative legal documents. China’s pollution prevention and control laws on toxic and hazardous substances are mainly aimed at three types of toxic chemicals, solid waste, and radioactive substances, which significantly impact human health and ecological balance. The prevention and control of these pollutants involve many administrative departments besides the administrative department in charge of environmental protection. Therefore, in terms of the form of the law, this type of legislation is mainly a joint management law or regulation of several relevant management departments. The relevant departments are given clear responsibilities and competencies in the management system, and coordination between them is emphasised.

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2 Solid Waste Pollution Prevention and Control Act 2.1

Overview of Solid Waste Pollution

2.1.1 The Concept of Solid Waste Solid waste is the solid and semi-solid waste generated in production, construction, daily life, and other activities polluting the environment. The former refers to objects with specific shapes and volumes occupying a specific space, including industrial solid waste, urban production waste, and hazardous waste. The latter waste refers to some high-concentration liquid or mixed substances that the scope of waste gas and wastewater management does not cover, such as the following substances produced in industrial production and construction: sludge, waste oil, waste solvents, waste asphalt, as well as sewage sludge, kitchen waste, and human and animal manure produced in domestic life. Solid waste is characterised by its large volume and variety, a wide range of sources, transportability and transnational movement, and dual nature as a polluting hazard and an available resource. Solid waste can be classified in different ways according to different criteria. For example, according to the source, it can be divided into industrial solid waste, agricultural solid waste, and municipal waste; According to the hazard characteristics and degree, it can be divided into general and hazardous solid waste. 2.1.2 The Concept of Solid Waste Pollution Solid waste pollution refers to the improper disposal of solid waste into the environment, which harms human health or property safety and damages the natural ecosystem, resulting in the deterioration of environmental quality. Solid waste pollution is different from air and water pollution. Since solid waste is a pollutant in itself, Solid waste pollution mainly refers to the environmental pollution caused by solid waste entering the environment before it directly or indirectly causes harm to humans and environmental elements. The damage caused by solid waste to environmental resources is mainly in the following areas: a large amount of solid waste can be deposited and take up land and cause soil pollution; once solid waste enters the

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atmosphere or water bodies, it can cause atmospheric or water pollution; solid waste seriously affects urban and rural environmental health, forming a threat to human health. In addition, solid waste can also damage the natural ecological environment if it is improperly deposited and disposed of. 2.2

China’s Primary Laws and Regulations on the Prevention and Control of Environmental Pollution by Solid Waste

2.2.1

Legal Principles for the Prevention and Control of Environmental Pollution by Solid Waste The prevention and control of environmental pollution by solid waste should follow the basic principles of the Environmental Protection Law. In addition, according to the characteristics of solid waste pollution, the following particular legal principles should also be followed: 1. The principle of “three principles” on preventing and controlling environmental pollution from solid waste. The “three principles,” that is, reducing the amount, turning it into a resource, and rendering it harmless. Reduction means not producing or producing less solid waste. Resourcefulness means recovering, recycling, and reusing the solid waste produced in the production process or using it as a raw material for another production. Making it harmless means making it safe and unpolluted for the environment through various treatment and disposal methods. To a certain extent, the three principles already have the idea of a circular economy. 2. The principle of complete process control of solid wastes. As solid waste may produce pollution hazards at various stages, it is necessary to implement different degrees and forms of supervision and management of the whole process of its generation, emission, collection, storage, transportation, utilisation, and disposal. Requirements for pollution prevention and control are also proposed. 3. The principle of combining centralised and decentralised disposal of solid waste. Establishing regional and specialised centralised disposal facilities can save investment, reduce disposal costs, and help improve governance. The State shall encourage and support measures for the centralised disposal of solid waste conducive to protecting the environment. At the same time, it is advisable

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to decentralise their management for enterprises that generate a relatively large amount of solid waste. 4. The principle of classification management of solid waste. According to the type of solid waste and the degree of harm to the environment, different measures should be stipulated to prevent and control pollution of the environment. For example, the prevention and control of industrial solid and municipal waste pollution should be subject to general management measures. In contrast, hazardous wastes should be subject to strict management measures. 5. The principle of the polluter bearing the responsibility. Units and individuals who generate, collect, store, transport, utilise, and dispose of solid wastes shall take measures to prevent or reduce the pollution of the environment by solid wastes. They shall be responsible for the environmental pollution they caused according to the law. 2.2.2

Supervision and Management System for Prevention and Control of Solid Waste Pollution of the Environment The department in charge of ecology and environment under the State Council shall implement unified supervision and management of the prevention and control of solid waste pollution of the environment nationwide. The competent departments of development and reform, industry and informatisation, natural resources, housing and urban– rural construction, transportation, agriculture and rural areas, commerce, health and health, customs, and other departments under the State Council shall be responsible for the supervision and management of the prevention and control of environmental pollution by solid waste within the scope of their respective duties. The competent department of ecology and environment of the local people’s government is responsible for the implementation of unified supervision and management of the prevention and control of solid waste pollution of the environment in the administrative region. The competent departments of development and reform, industry and informatization, natural resources, housing and urban–rural construction, transportation, agriculture and rural areas, commerce, health, and other departments of local people’s governments shall be responsible for the supervision and management of the prevention and control of environmental pollution by solid waste within the scope of their respective duties.

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2.2.3

The General Provisions for the Prevention and Control of Environmental Pollution by Solid Waste Units and individuals who generate, collect, store, transport, utilise, or dispose of solid wastes are responsible for preventing or reducing pollution of the environment by solid wastes. They must take measures to prevent dispersion, loss, leakage, or other measures to prevent pollution of the environment. Product packaging should be made of materials that are easy to recycle, dispose of, or dissipate in the environment. The State encourages scientific research and production units to research and produces agricultural films that are easy to recycle, dispose of, or dissipate in the environment. Packaging or containers for products and agricultural films should be recycled, and other means should be used to prevent or reduce pollution of the environment. In nature reserves, scenic spots, domestic drinking water sources, and other areas requiring special protection, the construction of centralised storage and disposal facilities and sites for industrial solid wastes and domestic waste landfills is prohibited. The entry of solid waste from outside China is prohibited for dumping, depositing, and disposal. The import of solid wastes that cannot be used as raw materials is prohibited; The export of those that can be used as raw materials is restricted, and a reporting and permitting system is implemented for the transfer of solid wastes across administrative regions within the country. 2.2.4

Legal Provisions on the Prevention and Control of Environmental Pollution by Industrial Solid Waste The department in charge of ecology and environment under the State Council shall, in conjunction with the competent departments of development and reform, industry, and information technology under the State Council, define the hazards and degree of impact of industrial solid waste on public health and the ecological environment, formulate technical policies for the prevention and control of pollution of the environment by industrial solid waste, and organise the promotion of advanced production processes and equipment for the prevention and control of pollution of the environment by industrial solid waste. The Law on the Prevention and Control of Environmental Pollution by Solid Waste establishes a “list of outdated production processes and production equipment that produce industrial solid waste that pollute the

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environment for a limited period.” The competent industry and information technology department under the State Council shall, in conjunction with the relevant departments of the State Council, organise research, development, and promotion of production processes and equipment that can reduce the amount of industrial solid waste generated and its harmful effects, and publish the list of backward production processes and equipment that produce severe environmental pollution of industrial solid waste to be phased out within the deadline. 2.2.5

Legal Provisions on the Prevention and Control of Environmental Pollution by Urban Domestic Waste Urban domestic waste refers to solid waste generated in the course of urban daily life or activities providing services for urban daily life, as well as solid waste regarded as urban domestic waste under the laws and administrative regulations. China’s Law on Prevention and Control of Pollution of the Environment by Solid Waste makes explicit provisions for preventing and controlling pollution of the environment by urban domestic waste. For example, Article 49 of the Law is about the dumping and depositing of municipal domestic waste at designated locations. Article 50 is about the timely removal, separate collection, and harmless disposal of domestic and municipal waste. Articles 51 and 52 provide for the removal and transportation of domestic waste by operating units engaged in public transport, farmers’ markets, and wholesale markets for agricultural products, respectively. Article 53 stipulates that the following units shall, according to national regulations on environmental sanitation, construct collection facilities for domestic waste: units engaged in the development of new urban areas, the reconstruction of old areas, and the development and construction of residential districts, and the construction of villages and towns, as well as units operating and managing public facilities and places such as airports, docks, stations, parks, shopping malls, and stadiums. In addition, Article 58 provides for a domestic waste disposal charging system, i.e., local people’s governments at or above the county level shall establish a domestic waste disposal charging system based on the generator-pays principle. When setting the domestic waste disposal charges, local people’s governments at or above the county level shall, based on local realities and considering the classification of domestic waste, reflect differentiated management such as classification pricing and metering charges and fully consult the public. They should publish the charges for domestic waste disposal to the community.

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Special Provisions on the Prevention and Control of Environmental Pollution by Hazardous Wastes Hazardous wastes are wastes with dangerous characteristics that are included in the national list of hazardous waste or identified according to the national standards and methods for identifying hazardous wastes. Hazardous waste accounts for about 5% to 10% of industrial solid waste. Because of its hazardous characteristics, the pollution hazard caused by it is more intense and more severe and is the focus of solid waste pollution prevention. China’s “Solid Waste Pollution Prevention and Control Law” has a particular chapter, “Chapter 6 hazardous waste,” on this provision. The Law stipulates that the National List of Hazardous Wastes shall be drawn up by the competent department of ecology and environment under the State Council in conjunction with the relevant departments of the State Council. In 1998, China published the first batch of the National List of Hazardous Wastes, which contains 47 categories of hazardous wastes. China has implemented a hazardous waste identification mark system. Hazardous waste containers and packaging, as well as facilities and places for the collection, storage, transport, and disposal of hazardous waste, must be marked with a hazardous waste identification mark. The Law on the Prevention and Control of Environmental Pollution by Solid Waste provides for the compulsory disposal of hazardous waste and the introduction of a substitute disposal system to enable all hazardous waste to be disposed of properly and safely. China has an environmental administrative permit system for the operation of hazardous waste. Units generating hazardous waste must declare their registration in accordance with the relevant national regulations. Units engaged in the collection, storage, and disposal of hazardous waste business activities, must apply to the ecological and environmental authorities of the people’s government at or above the county level for an environmental administrative permit to operate. Operating without a permit is prohibited. Personnel directly engaged in hazardous waste operation activities should receive training. The transfer of hazardous wastes through our national borders is prohibited.

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Radioactive Substances Pollution Prevention and Control Act

3.1

Contamination by Radioactive Substances

Certain elements or substances in nature whose nucleus are unstable are subject to nuclear decay, i.e., they naturally change their nuclear structure and are transformed into another substance. In nuclear decay, these elements or substances emit rays consisting of particles or photons and radiate excess energy from the nucleus to a lower energy state of the original substance. The properties of these elements or substances that emit rays during nuclear decay are called radioactivity. Radioactive substances are elements and compounds capable of producing radioactivity and radiation. Radioactive contamination is a phenomenon in which the level of radioactivity in the environment is changed by the emission of radioactive substances from human production and living activities, thus endangering human health. 3.2 3.2.1

Main Legal Provisions for the Prevention and Control of Radioactive Material Pollution in China

Supervision and Management System for the Prevention and Control of Radioactive Pollution The Law on the Prevention and Control of Radioactive Pollution stipulates that the ecological environment department of the State Council shall implement unified supervision and management of the prevention and control of radioactive pollution throughout the country in accordance with the law. The administrative department of health of the State Council and other relevant departments shall, in accordance with the duties prescribed by the State Council, implement supervision and management of the relevant radioactive pollution prevention and control work in accordance with the law. People’s governments at or above the county level shall incorporate the prevention and control of radioactive pollution into environmental protection planning.

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3.2.2

Supervision and Management of Radioactive Substances and Nuclear Facilities 1. Nuclear facility operators, nuclear technology utilisation units, uranium (thorium) mines, and associated radioactive ore development and utilisation units are responsible for the prevention and control of radioactive pollution within their domain, accept the supervision and management of the competent ecological and environmental departments and other relevant departments, and take responsibility for the radioactive decay caused by them by the law. 2. In transporting radioactive materials and radiation devices containing radioactive sources, effective measures shall be taken to prevent radioactive contamination. The State Council shall prescribe specific measures. 3. The use of associated radioactive slag and stone containing natural radioactive substances for construction and decoration materials shall comply with the national standards for radionuclide control of construction materials. 4. Products containing radioactive substances shall comply with national standards for preventing and controlling radioactive pollution. Those that do not meet the national standards for preventing and controlling radioactive pollution shall not be shipped and sold. 5. The site selection of nuclear facilities shall be scientifically demonstrated, and examination and approval procedures shall be completed following relevant national regulations. Before going through the approval procedures for the site selection of nuclear facilities, an environmental impact report shall be prepared and submitted to the competent department of ecology and environment under the State Council for review and approval; Before the environmental impact report is approved, the relevant departments shall not handle the approval documents for the site selection of nuclear facilities.

3.2.3

Management System to Prevent and Control Radioactive Contamination 1. Radioactive licencing system

The siting, construction, commissioning, operation, and decommissioning of nuclear facilities etc. can only be carried out after obtaining

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administrative permits and licences issued by the State Nuclear Safety Administration for the safety and environment of nuclear facilities. The relocation, transfer, or decommissioning of nuclear facilities must also be approved upon application to the State Nuclear Safety Authority. The environmental safety administrative permit for nuclear facilities includes the environmental administrative permit for the construction of a nuclear facility, the environmental administrative permit for the operation of a nuclear facility, the operator of a nuclear facility, and any other documents requiring approval. 2. Environmental impact assessment system This system requires projects involving radioactive wastewater, waste gas, and solid waste management to submit environmental impact assessment documents approved by the competent ecological and environmental authorities at the same time as the application for review. 3. System of setting up danger signs This system requires that radioactive signs and necessary protective safety chains, alarm devices, or work signals be installed at the entrances to the production, use, and storage of radioactive isotopes, as well as places of production and use of radioactive devices. When radioactive work is carried out outdoors or in the field, a safety zone must be set out, with danger signs and guarded if necessary. 4. “Dual monitoring system” Polluting units should monitor the environmental impact of pollution and regularly report the results to provincial ecological protection departments; Provincial environmental protection departments must monitor and routinely manage the environmental impact status of all projects with radiation within their jurisdiction. In addition, the law also makes specific provisions on the utilisation of nuclear technology, the prevention and control of radioactive pollution in the development and utilisation of uranium (thorium) mines and associated radioactive mines, and the management of radioactive waste.

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4 Toxic Chemicals Pollution Prevention and Control Act 4.1

Concept and Characteristics of Toxic Chemicals

Chemicals, also known as chemical substances, are substances manufactured artificially or obtained from nature, including chemical substances, chemical mixtures or parts of chemical formulations, and substances used as industrial chemicals and pesticides. Chemically dangerous goods refer to the following chemicals listed in the classification criteria according to our national standard “Classification and code of Dangerous Goods”: explosives; gases; flammable liquids; flammable solids, spontaneous combustion substance and substances that discharge flammable gases when wet; oxidants and organic peroxides; toxic and infectious substances; radioactive material; corrosive substances; misscellaneous dangerous substances and articles. There are 9 main categories. The concept and scope of toxic chemicals differ from those of hazardous substances and chemicals. Toxic chemicals are chemicals that, when introduced into the environment, harm health and the environment through environmental accumulation, bioaccumulation, biotransformation, or chemical reactions, or that, through exposure, pose a serious hazard and potential danger to humans. As can be seen from the definitions, “chemicals” and “chemically hazardous substances” are defined in terms of public safety and chemical reactions. On the other hand, toxic chemicals are defined in terms of public safety, human health hazards, and ecological safety. “Toxic” refers to the nature of the harm to human health and the environment. Therefore, the scope of toxic chemicals includes the usual chemical hazards and is broader than that of chemical hazards. 4.2

Main Legal Provisions for the Prevention and Control of Environmental Pollution by Toxic Chemicals in China

China attaches great importance to the safety control and management of toxic chemicals, and since the 1970s, the management of toxic chemicals

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has expanded from safety management only to protecting the environment. It has formulated a series of rules and regulations to prevent poisonous chemicals from polluting the environment and some safety and environmental standards, such as the Regulations on the Safe Management of Chemically Hazardous Substances (adopted in 1987, no longer in force and replaced by the Regulations on the Safe Management of Hazardous Chemicals adopted in 2002 and amended in 2011 and 2013), the Regulations on the Prevention of Pollution of the Environment by Electrical Installations Containing Polychlorinated Biphenyls and Their Wastes (adopted in 1991), the Regulations on the Prevention and Control of Environmental Pollution in the Production and Construction of Chromium Compounds (adopted in 1992), Notice on Stopping the Production and Sale of Naphthalene Pills and Promoting the Use of Camphor Products (adopted in 1993), Regulations on the First Import of Chemicals and Environmental Management of the Import and Export of Toxic Chemicals (adopted in 1994 and amended in 2007), Regulations on the Administration of Controlled Chemicals (adopted in 1995 and amended in 2011), etc. In addition, the Environmental Protection Law, the Water Pollution Prevention and Control Law, the Air Pollution Prevention and Control Law, the Marine Environmental Protection Law, and the Law on the Prevention and Control of Environmental Pollution by Solid Waste also contain provisions on the prevention and control of environmental pollution by toxic chemicals. 4.2.1

Legal Provisions on the Licencing System for the Production and Operation of Toxic Chemicals China has implemented a pre-production declaration and examination system for toxic chemicals. Enterprises producing chemically hazardous substances must be examined and approved by the people’s governments of municipalities under provincial jurisdiction or above. Enterprises producing highly toxic chemical dangerous substances must be approved by the provincial people’s government. Units and individuals who own electrical installations containing PCBs must declare their registration to the local ecological and environmental authorities. A licencing system for producing and operating toxic chemicals is in place.

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4.2.2

Legal Provisions on Safety Protection and Pollution Prevention Measures for Toxic Chemicals The production, storage, and use of toxic chemicals shall be equipped with corresponding safety protection facilities and appliances such as ventilation, explosion-proof, pressure relief, fire prevention, lightning protection, monitoring, alarm, automatic interlocking, temperature reduction, moisture prevention, elimination of static electricity and isolated operation according to their types and nature. Containers containing toxic chemicals must be inspected before and after use to prevent fire, explosion, poisoning, and other accidents. Toxic chemicals must be stored in dedicated hazardous materials storage sites or storage rooms (cabinets) and managed by dedicated personnel. Toxic chemical manufacturers, warehouses, dedicated stations, and terminals must be located in safe places. Toxic chemicals should be stored in separate categories at safe distances and not in excessive quantities. They should not be stored in open, wet, leaky, or low-lying locations where water can quickly accumulate. Toxic chemicals with conflicting chemical properties or methods of protection and fire extinguishing should be stored in a different place. Toxic chemicals must be inspected and registered before they are stored and regularly inspected after they are stored. The transportation and handling of toxic chemicals must be carried out in accordance with the national regulations and requirements on managing dangerous goods transportation. 4.2.3

Legal Provisions on the Environmental Management of the Import and Export of Toxic Chemicals China implements an environmental risk assessment system to manage the import and export of toxic chemicals. In a meeting on environmental management of toxic chemicals held in May 1993, the former State Environmental Protection Bureau proposed to pay attention to the environmental risk assessment and control of new chemicals and imported and exported toxic chemicals and increase the content of risk assessment of toxic chemicals in the environmental impact assessment management of construction projects involving toxic chemicals. China implements a system of lists of imported and exported toxic chemicals. The former State Environmental Protection Administration formulated the “List of Toxic Chemicals Banned or Strictly Restricted in China” and adopted strict control over the toxic chemicals on the list.

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4.2.4 Legal Provisions on Chemicals Under Surveillance China divides chemicals under surveillance into four categories: The first category is chemicals used as chemical weapons; The second category is chemicals used as precursors for the production of chemical weapons; The third category is chemicals used as the primary raw materials for the production of chemical weapons; And the fourth category is specific organic chemicals other than explosives and pure hydrocarbons. The State monitors these four categories of controlled chemicals in the form of a published list, and strict regulations are imposed on their approval, production, and use, respectively. The production of the first category of controlled chemicals requires the approval of the competent chemical industry department of the State Council and is produced in designated small facilities. China implements a unique permit system for producing specific organic chemicals containing phosphorus, sulphur, and fluorine in the second, third, and fourth categories of controlled chemicals. Class I controlled chemicals are subject to the examination and approval of the competent chemical industry department of the State Council. Class II controlled chemicals are subject to the examination and approval of the competent chemical industry department of d the provincial people’s government. In addition, the import and export of Class I-controlled chemicals are strictly controlled by the State, which stipulates that they cannot be imported for purposes other than scientific research, medical treatment, drug manufacturing, or protection. 4.2.5

Legal Provisions on Emergency Rescue and Aftercare of Toxic Chemical Pollution Accidents The elimination of sudden toxic chemical pollution accidents and the adoption of emergency rescue measures in case of accidents are common concerns of all countries. In 1988, the United Nations Environment Programme (UNEP) proposed the “Regional Emergency Awareness and Preparedness Programme” (i.e., the “Apel Programme”) to raise the awareness of governments, enterprises, and the public on the prevention and handling of sudden pollution accidents, and to emphasise the importance of emergency response and overall management of emergencies. In 1988, the United Nations Environment Programme (UNEP) launched the “Regional Emergency Awareness and Preparedness Programme” (known as the “Apel Plan”) to raise awareness among governments, businesses, and the public about the prevention and management of

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pollution emergencies and to emphasise emergency response and cooperation among the whole society. Many countries have taken this plan seriously. China has responded positively to it and has successfully enacted relevant laws and regulations, clearly stipulating that the emergency response to sudden pollution accidents involving toxic chemicals shall be organised, coordinated, and implemented by local people governments. Emergency measures include facilities to control, reduce and eliminate contamination, such as control of access, food, and water, evacuation of personnel, relocation of goods, decontamination of contaminated areas, and rescue, decontamination, transfer, and medical disposal of contaminated personnel. 4.3

Pesticide Pollution Prevention Act

A pesticide is a chemically synthesised substance or a mixture of one or more substances derived from biological or other natural products and their preparations. They are used to prevent, destroy or control diseases, insects, weeds, and other pests that harm agriculture and forestry and to regulate purposefully, control, and influence the metabolism, growth, development, and reproduction processes of plants and pests. Pesticide pollution is a specific type of toxic chemical pollution. It is the contamination of the environment through the production, transport, storage, sale, and application of pesticides, causing acute or chronic poisoning of humans, animals, and plants, as well as affecting the virtuous cycle of the ecosystem. China has permanently attached great importance to the management of pesticides. As early as the 1950s, the relevant departments of the State Council promulgated several regulations on the safe management of pesticides, covering the prevention of pesticide poisoning and It includes the following regulations: “Joint Circular on the Strict Prevention of Pesticide Poisoning” (1956), “Operating Procedures for the Safe Use of Pesticides “1605” and “1059” (for trial implementation)” (1957), “Regulations on Strengthening the Safe Management of Pesticides” (1959). Since the 1970s, the State has further strengthened its legislation. For example, in 1979, the Standard for Safe Use of Pesticides (Trial) was formulated. In 1982, the relevant departments jointly issued the Regulations on the Safe Use of Pesticides, the Regulations on Pesticide Registration, and the Interim Provisions on Pesticide Toxicity Test Methods. In 1984, the Standard for Safe Use of Pesticides and the Guidelines for Rational

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Use of Pesticides were issued. In 1996, five departments, including the Ministry of Agriculture, the State Environmental Protection Administration, and the State Administration for Industry and Commerce, jointly issued a circular prohibiting the use of highly toxic and high-residue pesticides in vegetable production. To further strengthen the supervision and management of the production, operation, and use of pesticides, ensure the quality of pesticides, protect agricultural and forestry production and the ecological environment, and maintain the safety of humans and animals, the State Council issued the Regulations on the Administration of Pesticides by Decree No. 216 on May 8, 1997 (amended thrice in 2001，2017 and 2022). In addition, there are provisions in the Environmental Protection Law and other environmental protection laws and regulations, as well as the Agricultural Law and the Agricultural Technology Promotion Law, to prevent and control pesticide pollution.

CHAPTER 12

Natural Resources Protection Act

1

Natural Resources and Natural Resources Protection Act 1.1

Overview of Natural Resources

1.1.1 Meaning of Natural Resources Resources refer to all materials, energy, and information that humans can exploit and use, which exist both in nature and society. According to their fundamental properties, they can be divided into natural and social resources. In a narrow sense, they are mainly natural resources. The United Nations Environment Programme (UNEP) defines natural resources as “a general term for those elements and conditions of the natural environment which, under certain conditions of time and place, are capable of generating economic value to enhance the present and future welfare of mankind.” 1.1.2 Types of Natural Resources Natural resources can be divided into two categories: physical resources and environmental resources. Physical resources include soil, biology, water, and mineral resources, while environmental resources include environmental capacity, landscape resources, ecological balance, selfregulating resources, and climate resources. We can further subdivide them; for example, biological resources can be subdivided into forests, grasslands, wildlife, and marine fish. © China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4_12

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Natural resources can also be divided into renewable, non-renewable, and constant. Renewable resources are resources that can be used continuously through reproduction and renewal, such as forests, grasslands, and other plant and animal resources, as well as fresh water and soil resources. Non-renewable resources are limited in quantity and non-renewable, such as various mineral resources, and constant resources are resources that cannot be exhausted by humans, such as solar energy, wind energy, and tidal energy for seawater. Environmental resource protection requires that human beings ensure the reproduction and renewal rate of renewable resources, cherish and reasonably use non-renewable resources, and use constant resources as much as possible. From the perspective of ecological elements, natural resources can be classified into biological communities (including various animal, plant, and microbial resources), inanimate materials (including land, water, and minerals), and specific spaces (including nature reserves, urban and rural environments, human landscapes, energy, and meteorology). The system of natural resource law in this book is constructed according to this classification. 1.2

Legal Protection of Natural Resources

The protection of natural resources is a general term for the various actions taken by the State and society to ensure the rational exploitation and sustainable use of natural resources. Protecting natural resources by legal means gives rise to the law of natural resource protection. The substantive law of natural resource protection is a general term for the legal regulation of the social relations between people in developing, using, managing, and conserving natural resources to protect their ecological benefits. In formal terms, natural resource protection law is the expression of various legal norms for protecting natural resources. Although the law of natural resource conservation came after the pollution prevention law, it has developed rapidly and become an essential part of modern environmental law. The concept of conservation was introduced and used in the World Programme for the Conservation of Natural Resources, prepared by the United Nations Environment Programme and others. It means: “to arrange for rational human use of the biosphere in such a way as to maximise the lasting benefits to the present generation and to maintain its potential to meet the needs of future generations.”

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Conservation, in this sense, is the active, controlled preservation, maintenance, and sustainable use, restoration, and enhancement of the natural environment. China’s natural resources protection law has taken shape and is composed mainly of the following: (1) The principal provisions of the Constitution on natural resources and environmental issues. “The State guarantees the rational use of natural resources and the protection of precious animals and plants. Any organisation or individual is prohibited from appropriating or destroying natural resources” (Article 9). “All organisations and individuals using land must make reasonable use of it” (Article 10). The above provides a solid constitutional basis for the Natural Resources Protection Act. (2) Relevant provisions in the Environmental Protection Act. As a comprehensive fundamental law on the environment, the basic tasks, objects of protection, basic principles and systems, management agencies and authorities, legal responsibilities, and other relevant provisions are all important sources of natural resources protection law. (3) Individual laws and regulations on the protection of natural resources. The primary laws and regulations on the protection of natural resources include the following: the Wildlife Protection Law and its implementing regulations, the Regulations on the Protection of Wild Plants, the Fisheries Law, the Forest Law, the Grassland Law and its implementing regulations, the Land Management Law and its implementing regulations, the Water Law, the Mineral Resources Law and its implementing regulations, the Regulations on the Protection of Basic Farmland, the Law on Soil and Water Conservation and its implementing regulations, the Regulations on Scenic The Regulations on Scenic Areas, the Regulations on Nature Reserves, the Law on the Protection of Cultural Relics and its implementing regulations, the Regulations on the Protection of Underwater Cultural Relics, the Measures for the Administration of National Forest Parks, the Measures for the Administration of Forest Parks, and the Measures for the Administration of National Wetland Parks.

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2

Ecological Security and Natural Disaster Prevention Act 2.1

Ecological Security

Ecological security, also known as environmental security, is sometimes referred to in national terms as national ecological or environmental security. The National Ecological and Environmental Protection Programme refers to a state in which the ecological environment necessary for the survival and development of the country is free from or less threatened by damage. In addition, other concepts related to national ecological and environmental security include national resource and environmental protection, land and resource security, and social security (mainly the impact of accidents and disasters on social security). China has made environmental protection, the protection and rational use of natural resources its fundamental national policy, and sustainable development as its economic development strategy, all of which reflect the significance of ecological security. China’s Agenda 21—China’s White Paper on Population, Environment, and Development in the twenty-first Century (1994), the Outline of Vision 2010 (1996), and the National Ecological and Environmental Construction Plan (1998) are all normative documents that take note of the issue of ecological security in China. The National Ecological Environmental Protection Programme (2000) formally included ecological security as an objective of environmental protection in China and incorporated it into national security. Ecological security in China mainly includes the following issues. 1. Homeland security “Homeland generally refers to the territorial space under the sovereign jurisdiction of a State, including land and sea. Homeland resources are the natural resources under a country’s sovereign jurisdiction, the environmental resources determined by them, and socio-economic resources. Homeland security is also known as the security of homeland resources. Currently, the main problems in China’s homeland resources that impact national security are severe soil erosion, serious land desertification, water security, biological security, and energy security.”

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2. Environmental security Environmental security mainly refers to the severe impact on national security caused by environmental pollution. Currently, China’s most serious environmental pollution problems are air, water, marine, soil, and chemical pollution. 3. Prevention and control of natural disasters Natural disasters, referred to as natural disasters, can be divided into climatic and geological disasters. Natural disasters in China are characterised by their wide variety, high frequency, high intensity, and broad impact. Disaster prevention and mitigation have become an essential factor in the sustainable and stable development of China’s society and economy and an arduous task in maintaining the security of the national ecological environment. 2.2

Natural Disaster Prevention and Control Legislation

China’s natural disaster prevention and control legislation is divided into specialised legislation, specialised norms, and related codes. Specialised legislation refers to the legal norms whose sole legislative purpose is preventing and controlling natural disasters. Specialised legislation China has enacted mainly includes the Law on Flood Prevention (adopted in 1997 and amended three times in 2009, 2015, and 2016), the Law on Earthquake Disaster Prevention and Mitigation (adopted in 1997 and amended in 2008), the Regulations on the Administration of Earthquake Forecasting (1998) and the Law on Sand Control and Sand Control (implemented in 2002 and amended in 2018). Specialised norms are legal chapters or provisions in other legislation aimed at preventing and controlling natural disasters, such as Chapter 4, “Meteorological Forecasting and Disastrous Weather Warning,” and Chapter 5, “Meteorological Disaster Prevention,” of the Meteorological Law. Relevant codes such as the “Regulations on the Administration of Disaster Resistant Facilities for Municipal Public Utilities” (revised in 2015) were issued by the Ministry of Housing and Urban–Rural Development on 7 October 2008.

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3

Biological Resources Protection Act

As the ecological environment is centred on the entire living world, and the first of the three elements of the ecological environment is the living community, the protection of biological resources is the primary component of ecological protection. Biological resources are renewable resources, but they are more vulnerable to damage and more difficult to protect. In the traditional legal system, the protection of biological resources could be more robust. Strengthening the legal protection of biological resources is an area that requires special attention in modern environmental law. At the global level, biodiversity is the sum of the rights and obligations that arise from adjusting the variability of living organisms from all sources in each country. Within a country, biodiversity is the sum of the rights and obligations arising from the variability of living organisms from all sources. China has developed a legal system for the protection of biodiversity and established a system of environmental impact assessment, nature reserves and scenic spots, a licencing system, a quarantine system, and other legal systems. China’s Wildlife Protection Law provides for the objects of protection, the ownership, the protection policy of wildlife, the system of supervision and management, and the specific legal measures for wildlife protection. China’s principal regulations for wild plant protection are the Regulations on the Protection of Wild Plants. At the same time, other contents are scattered in laws and regulations such as the Environmental Protection Law, the Forestry Law, the Grassland Law, and the Regulations on the Protection and Management of Wild Medicinal Resources. Fisheries resources can generally be divided into two categories: freshwater and saltwater fisheries resources. The Fisheries Law and the Rules for implementing the Fisheries Law provide the basic legal system for protecting fisheries resources in China. China’s Forestry Law stipulates the basic principles of China’s forest resources protection law, the forest rights system, the forest management, and management system, the afforestation system, the forest harvesting system, and other legal systems. The Grassland Law, the Grassland Fire Prevention Regulations, and other laws and regulations provide the basic legal system for grassland protection in China.

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Biodiversity Conservation

3.1.1

The Concept, Characteristics, and Scope of Adjustment of Biodiversity Biodiversity is the result of billions of years of development and evolution of life on Earth and is the material basis for human survival. Biodiversity is shaped by natural processes and is increasingly influenced by human activities. Biodiversity forms a network of life, of which humans are an integral part and on which they are dependent. The 1992 Convention on Biological Diversity (CBD) explains biodiversity in Article 2, “Use of Terms,” as follows: “Biodiversity means the variability of living organisms from all sources.” In 1995 the United Nations Environment Programme (UNEP) published the Global Biodiversity Assessment, which gives a more concise definition of biodiversity: “Biodiversity is the overall diversity and variability of organisms and the systems of which they are part.” The definition of biodiversity has evolved over time and as understanding has deepened, from the 1992 Convention on Biological Diversity (CBD), which emphasised only ‘diversity,’ to the 1995 United Nations Environment Programme (UNEP) Global Biodiversity Assessment (GBA), which added ‘variability’ to ‘diversity.’ 3.1.2 Scope of Regulation of Biodiversity Conservation Law The 1992 Convention on Biological Diversity (CBD) defines the scope of biodiversity conservation in the form of a catalogue. The scope of protection is mainly defined as (1) genetic diversity; (2) species diversity; and (3) ecosystem diversity. Presently, the three levels of biodiversity recognised by international law are genes, species, and ecosystems, the three primary levels and scopes of species formation. Species diversity should be the most fundamental and critical range of biodiversity adjustment and governs the spatial and temporal patterns and processes of biodiversity change. 3.1.3 Biodiversity Conservation Legislation 1. The most important are the Convention on Biological Diversity (CBD) and the Cartagena Protocol on Biosafety to the CBD, signed in Rio de Janeiro on 5 June 1992 (China acceded in 2005), and the Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. China adopted the Decision on Ratification of the Convention on Biological Diversity at the

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28th meeting of the Standing Committee of the 7th National People’s Congress on 7 November 1992. The Convention on Biological Diversity aims to conserve the Earth’s biological diversity, the sustainable use of biological resources, and the equitable sharing of the benefits arising from using genetic resources. It provides for measures such as in situ and ex-situ conservation to protect biodiversity. It also provides for issues such as access to and transfer of genetic resources, biotechnology, and financial assistance. The United States of America and other developed countries have yet to sign the Convention because they object to using genetic resources, biotechnology, and funding. 2. The relevant international conventions are CITES, CITES Appendices I, II, and III, the Special Reservations made by the Parties, the Convention on the Conservation of Migratory Species of Wild Animals, the International Convention for the Protection of New Varieties of Plants (China acceded to the 1978 text in 1998), and the International Plant Protection Convention (China acceded to it in 2005), International Treaty on Plant Genetic Resources for Food and Agriculture, Convention on Wetlands of International Importance, especially as Waterfowl Habitat (accession by China in 1992), Agreement on Trade-Related Aspects of Intellectual Property Rights, Convention for the Protection of the World Cultural and Natural Heritage, United Nations Framework Convention on Climate Change, Kyoto Protocol, United Nations Convention to Combat Desertification, International Convention for the Regulation of Whaling, Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Statute of the International Centre for Genetic Engineering and Biotechnology, IUCN Guidelines for the Prevention of Biodiversity Losses through Biological Invasions and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (acceded to by China in 2016). Bilateral treaties include the following: the Agreement between the Governments of the PRC and Japan on the Conservation of Migratory Birds and their Habitat, the Agreement between the Governments of the PRC and Australia on the Conservation of Migratory Birds and their Habitat, and the Guidelines on Prevention, Introduction, and Mitigation of the Effects of Alien Species that Pose a Threat to Ecosystems, Habitats or Species.

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3. China’s biodiversity protection legislation Article 9 of our Constitution provides that “The State shall guarantee the rational use of natural resources and the protection of precious animals and plants. Any organisation or individual is prohibited from using any means to appropriate or destroy natural resources.” Article 26 states: “The State shall protect and improve the living and ecological environment, and prevent and control pollution and other public hazards. The State organises and encourages the planting of trees and the protection of forests.” These serve to protect biodiversity and provide the basis for enacting relevant laws. The primary laws related to biodiversity conservation in China are the Environmental Protection Law (amended in 2014), the Marine Environmental Protection Law (amended in 2017), the Exclusive Economic Zone and Continental Shelf Law (adopted in 1998), the Wildlife Protection Law (amended in 2018), the Fisheries Law (amended in 2013), the Forestry Law (amended in 2019), the Seed Law (amended in 2021), Water Law (amended in 2016), Water Pollution Prevention and Control Law (amended in 2017), Law on the Quarantine of Animals and Plants in and out of the Country (amended in 2009), Animal Epidemic Prevention Law (amended in 2021), Land Management Law (amended in 2019), Grassland Law (amended in 2021), Law on the Prevention and Control of Sand and Sand (amended in 2018), Law on Law on Soil and Water Conservation (amended in 2010), Law on Environmental Impact Assessment (amended in 2018), Law on Promotion of Cleaner Production (amended in 2012), Law on Mineral Resources (amended in 2009). The principal administrative regulations are: Regulations on the Protection of Aquatic Resources Breeding (1979), Implementing Regulations on the Protection of Terrestrial Wildlife (revised in 2016), Implementing Regulations on the Protection of Aquatic Wildlife (revised in 2013), Regulations on Nature Reserves (revised in 2017), Measures for the Administration of Forest Parks (revised in 2016), Regulations on the Protection of Wild Plants (revised in 2017), Decision of the State Council on Several Issues of Environmental Protection (1996), Regulations on the Protection of New Varieties of Plants (revised in 2014), Measures for the Administration of Licenses for the Domestication and Breeding of State Key Protected Wild Animals (revised in 2015), Regulations on the Administration of Agricultural Genetically Modified Organisms Safety (revised in 2017), Regulations on the Administration of the Import and

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Export of Endangered Wild Fauna and Flora (revised in 2019), Regulations on the Administration of Biosafety of Pathogenic Microorganisms Laboratories (revised in 2018), Regulations on Chinese Medicine (2003), Regulations on the Protection of Varieties of Chinese Medicine (revised in 2018), etc. Local regulations: Some of the more representative regulations enacted by local people’s congresses in provinces, autonomous regions, and municipalities directly under the Central Government include the Regulations on Grassland Management in the Inner Mongolia Autonomous Region, the Interim Regulations on the Management of Wildlife Protection in Jilin Province, the Regulations on the Protection of World Heritage Sites in Sichuan Province and the Regulations on the Protection of Yunnan Pond in Yunnan Province. The regulations include departmental regulations formulated by the relevant authorities of the State Council, as well as local government regulations formulated by the people’s governments of provinces, autonomous regions, municipalities directly under the Central Government and relatively large cities, such as the Rules for the Implementation of Plant Quarantine Regulations by the Ministry of Forestry, the Rules for the Implementation of Plant Quarantine Regulations by the Ministry of Agriculture, the Circular on the Cessation of the Acquisition and Export of Precious Wild Animals by the Ministry of Foreign Trade, and the Measures for the Administration of Marine Nature Reserves by the State Oceanic Administration, The General Administration of Customs and the Ministry of Agriculture’s Circular on Strengthening Supervision of Passengers Bringing Animal and Plant Specimens Out of the Country, the Ministry of Forestry and the Ministry of Agriculture’s List of Wild Animals under State Key Protection (2021), the Measures for the Administration of Safety Evaluation of Agricultural Genetically Modified Organisms, the Measures for the Protection of Agricultural Wild Plants, the Measures for the Administration of Approval of the Species and Number of Exotic Species of Terrestrial Wild Animals, the Measures for the Production and Operation of Crop Seeds, and the Measures for the Administration of Licences for the Production and Operation of Major Wild Animals. Measures for the Administration of Licences for the Production and Operation of Agricultural Seeds, and Measures for the Validation of Major Crop Varieties. To implement the Convention on Biological Diversity (CBD), China established the “China Coordination Group for the Implementation of

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the Convention on Biological Diversity” in 1993, with the State Environmental Protection Administration as the lead agency. In June 1994, China took the lead in publishing the Action Plan for the Conservation of Biological Diversity in China and released the Report on the National Situation of Biological Diversity in China. Since then, China has prepared and formulated the National Work Programme for Strengthening Biogenetic Resources Management (2014–2020), the Implementation Programme for Major Projects on Biodiversity Conservation (2014–2020), and the United Nations Decade on Biodiversity 2014–2015. “Annual Action Programme for China” and other normative documents. In implementing laws and regulations related to biodiversity conservation, China has established a more comprehensive legal system, including a regulatory system, a system for nature reserves and scenic spots, a licencing system, and a quarantine system. 3.2

Wildlife Protection Act

3.2.1 Protection of Wild Animals Wild animals refer to all animals that live in their natural state and have not been domesticated. However, the wild animals subject to legal protection are often of certain specific categories. China’s Wildlife Protection Law defines wildlife as precious and endangered terrestrial and aquatic and terrestrial wildlife of ecological, scientific, and social importance. Wild animals are an essential part of the ecological environment, have significant economic, scientific, and cultural values, and are crucial for maintaining the ecological balance. Wild animals in nature are influenced and regulated by ecological laws and impact the development and changes of ecosystems. China has promulgated a series of laws and regulations, including the Law on the Protection of Wild Animals, the Law on the Quarantine of Animals and Plants in and out of China, the Implementing Regulations on the Protection of Terrestrial Wild Animals, the Implementing Regulations on the Protection of Aquatic Wild Animals, the Regulations on the Protection of Aquatic Resources and Breeding, the Circular of the State Council on Strictly Controlling the Business and Utilisation Activities of Rhinoceroses and Tigers and Their Products, the Measures for Charging Management Fees for the Protection of Terrestrial Wild Animal Resources The State Key Protection of Wild Animals, the Measures for the Administration of Licenses for the Domestication and Breeding of State Key

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Protection of Wild Animals, the List of State Key Protection of Wild Animals. A relatively complete legal system has thus been formed. Among them, China’s Wildlife Protection Law was adopted at the fourth meeting of the Standing Committee of the Seventh National People’s Congress on 8 November 1988. It was amended or revised in August 2004, August 2009, July 2016, October 2018, and December 2022, respectively. 1. Protection objects The wild animals protected by China’s Wildlife Protection Law refer to precious and endangered terrestrial and aquatic wild animals and terrestrial wild animals with significant ecological, scientific, and social values. The provisions of the Fisheries Law and other relevant laws shall apply to the protection of aquatic wildlife other than precious and endangered aquatic wildlife. 2. Ownership regulations To effectively protect wildlife resources, it is necessary to change the long-established concept that “the wild has no owner and whoever hunts owns.” Therefore, the Wildlife Protection Law stipulates that wildlife resources belong to the State. At the same time, the State protects the legitimate rights and interests of organisations and individuals engaged in scientific research, artificial breeding, and other conservation and related activities of wild animals by law. 3. Principles of wildlife protection The State implements the principles of prioritising protecting wild animals, regulating their use and strictly supervising them, encouraging scientific research on wild animals, fostering citizens’ awareness of wild animal protection, and promoting the harmonious development of man and nature. 4. Supervision and management system China’s supervision and management system for protecting wildlife resources is divided into departmental and hierarchical management.

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Specifically, the departments in charge of forestry, grassland, and fisheries of the State Council and local people’s governments at or above the county level are in charge of the protection of terrestrial and aquatic wildlife nationwide and within their administrative regions, respectively. 5. Wildlife list and habitat protection

(1) Key protection for precious and endangered wildlife The State implements classified and graded protection for wildlife. The State implements critical protection for precious and endangered wildlife. Wildlife under national priority protection is divided into Class I and Class II protected wildlife. After scientific evaluation, the competent wildlife protection department establishes the State Key Wildlife Protection List under the State Council. The list is adjusted every five years according to the evaluation situation. The State Key Wildlife Protection List is reported to the State Council for approval and publication. The latest version of the List of Wildlife under State Key Protection was published on 1 February 2021 after approval by the State Council. The wild animals under local critical protection are wild animals that are protected by provinces, autonomous regions, and municipalities directly under the central government, in addition to those under national critical protection. The list of locally protected wildlife shall be formulated, adjusted, and published by the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government after organising scientific assessments. The list of terrestrial wild animals with significant ecological, scientific, and social values shall be formulated, adjusted, and published by the competent wildlife protection department under the State Council after organising a scientific assessment. (2) Conservation of the wildlife habitat First, survey, monitor, and assess the condition of wildlife and their habitats. The competent department of wildlife protection of the people’s government at or above the county level shall regularly organise or commission relevant scientific research institutions to survey, monitor, and

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evaluate the condition of wild animals and their habitats and establish a sound file of wild animals and their habitats. Secondly, designate nature reserves to enhance protection and management. People’s governments at or above the provincial level shall designate relevant nature reserves by the law to protect wild animals and their critical habitats and to protect, restore and improve the living environment of wild animals. The people’s governments at or above the county level may adopt other forms of protection, such as designating no-hunting (fishing) areas and stipulating no-hunting (fishing) periods, if they do not have the conditions to designate the relevant nature reserves. Third, standardise relevant planning. When preparing plans for development and utilisation, people’s governments at or above the county level and their relevant departments shall give full consideration to the needs for the conservation of wildlife and their habitats and analyse, predict and assess the overall impact that the implementation of the plans may have on the preservation of wildlife and their habitats to avoid or reduce the possible adverse consequences of the performance of the projects. Fourth, monitor and supervise the impact of the environment on wildlife. Wildlife protection departments at all levels shall monitor and supervise the impact of the environment on wildlife. In the event of environmental hazards to wildlife, the competent wildlife protection departments shall work with relevant departments to investigate and deal with them. Fifth, establish an emergency response system for emergencies. When wild animals under national or local critical protection are threatened by natural disasters, major environmental pollution accidents, and other emergencies, the local people’s government shall promptly employ emergency rescue measures. The competent departments for wildlife protection of people’s governments at the county level or above shall organise and carry out wildlife shelter and rescue efforts by relevant national provisions. In addition, the Wildlife Protection Law provides a system for responding to wildlife epidemics, planning for the conservation and use of wildlife genetic resources, and compensation for damage caused to wildlife. Sixth, the management, and utilisation of wild animals. The Wildlife Protection Law stipulates the following regulations on managing and utilising wild animals:

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The sale, purchase, and use of wild animals and their products under national protection are prohibited. For scientific research, artificial breeding, public display and exhibition, protection of cultural relics, or other exceptional circumstances, the sale, purchase, or use of wild animals and their products under critical national protection shall be approved by the competent department of the people’s government of the province, autonomous region or municipality directly under the Central Government for the protection of wild animals. Unique identification shall be obtained and used by the regulations to ensure traceability, except where the State Council has stipulated otherwise for the approving authority. Those transporting or carrying wild animals under critical national protection or their products into or out of the county shall possess or attach copies of permits, approval documents, or unique marks and quarantine certificates as provided in Articles 21, 25, 27, or 28 of the Wildlife Protection Law. Those transporting wild animals without critical national protection outside the county border shall hold proof of legal origins such as hunting, importing, exporting, and quarantining certificates. The list of wild animals or their products whose trade is prohibited or restricted by international conventions concluded or acceded to by the People’s Republic of China shall be formulated, adjusted, and published by the State Administration for the Import and Export of Endangered Species. The import and export of wild animals or their products listed in the preceding paragraph and the export of wild animals or their products under state protection shall be subject to the approval by the competent wildlife protection department under the State Council or by the State Council, and a certificate of permission to import and export from the State Administration for Import and Export of Endangered Species. Customs shall carry out entry and exit quarantine in accordance with the law and go through customs clearance procedures by regulations based on the certificate of import and export permission and quarantine certificate. 3.3

Basic Legal Provisions for Wild Plant Protection

3.3.1 Objects of Protection The wild plants covered by the Wild Plant Protection Regulations refer to precious plants that grow naturally in their native places and endangered and rare plants that grow naturally in their native places and have significant economic, scientific research, and cultural values. Relevant laws and

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administrative regulations apply to protecting wild medicinal plants and wild plants in urban gardens, nature reserves, and scenic spots. 1. Policy on the protection of wild plants The State implements the policy of strengthening the protection, active development, and rational use of wild plant resources. It encourages and supports scientific research on wild plants and the in situ and relocation protection of wild plants. 2. Main legal measures for the protection of wild plants The Regulations on the Protection of Wild Plants stipulate that the State protects wild plants and their growing environment. Any unit or individual is prohibited from illegally collecting wild plants or destroying their growing environment. To implement this requirement, the Regulations establish the following system: (1) Classification and grading system for the protection of wild plants Wild plants in China are divided into national and local priority protection, and wild plants under national priority protection can be further divided into first-level and second-level protection. (2) Catalogue system for wild plant protection On 4 August 1999, the State Council officially approved the publication of the “List of National Key Wild Plants (First Batch)” (hereinafter referred to as the “List”). The latest version of the List of Wild Plants under State Key Protection was approved by the State Council on 7 August 2021 and published for implementation on 7 September 2021. There are four criteria for selecting species for inclusion in the List: (1) Endangered species with minimal numbers and narrow distribution; (2) Endangered and rare species with significant economic, scientific, and cultural values; (3) Wild populations of essential crops and closely related species with genetic values; (4) Species with critical economic values whose resources have been drastically reduced due to over-exploitation.

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(3) Protection of the growing environment of wild plants To protect wild plants, the law prohibits any entity or individual from destroying their growing environment. 3.4

Fisheries Resources Protection Act

3.4.1 Concept of Fishery Resources Fisheries are the industrial activities of collecting, fishing, and breeding aquatic plants and animals. Fishery resources refer to the aquatic animal and plant resources that can be cultivated and harvested for use. Fisheries resources can generally be divided into two categories: freshwater and marine fisheries resources, including fish, shrimps and crabs, shellfish, seaweeds, freshwater edible aquatic plants (such as lotus roots and rhizomes), and other aquatic plant and animal resources. 3.4.2 Protection of Fishery Resources and Legislation China has enacted many laws and regulations to protect fishery resources, the first being the Fisheries Law promulgated in 1986, which was amended four times in October 2000, August 2004, August 2009, and December 2013, respectively. The amended Fisheries Law contains 50 articles, including general provisions, aquaculture, fishing, enhancement and protection of fisheries resources, and legal responsibilities, strengthening environmental protection and management of offshore fishing in fisheries production. It also dovetails with the Marine Environmental Protection Law, the Water Pollution Prevention and Control Law, the Land Management Law, the Environmental Protection Law, the Wildlife Protection Law, the Implementing Regulations on Aquatic Wildlife Protection, and other relevant laws on marine environmental protection and water pollution prevention and control. 3.4.3 Legal Provisions for the Protection of Fisheries Resources 1. Scope of application and basic guidelines Fishery production activities such as breeding and fishing of aquatic animals and plants in the internal waters, beaches, territorial waters, and exclusive economic zone of the People’s Republic of China, as well as all other sea areas under the jurisdiction of the People’s Republic of

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China, must comply with the relevant provisions of the Fisheries Law. The State shall adopt the policy of prioritising fishery production, with equal emphasis on farming, fishing, and processing, according to local conditions and priorities. People’s governments shall incorporate fishery production into national economic development plans and take measures to strengthen the unified planning and comprehensive utilisation of water areas. The State encourages fishery science and technology research, promoting advanced technology, and improving fishery science and technology. The people’s governments at all levels shall give moral or material rewards to units and individuals who have made remarkable achievements in increasing and protecting fishery resources, developing fishery production, and conducting fishery science and technology research. 2. Main legal measures for the protection of fisheries resources

(1) Legal provisions on aquaculture To achieve the sustainable use of fishery resources, the State encourages all people, collectively owned units, and individuals to make full use of waters and beaches suitable for aquaculture to develop aquaculture. The system of fishery farming use permits. The State shall carry out a unified plan to use waters and determine the waters and tidal flats that can be used for aquaculture. Units and individuals using waters and tidal flats owned by the whole people designated by the national plan for aquaculture shall apply to the competent fishery administrative department of the local people’s government at or above the county level. The people’s government at the same level shall issue aquaculture certificates and permit them to use the waters and tidal flats to engage in aquaculture production. When issuing farming permits, priority shall be given to local fishery producers. Individuals or collectives may contract, collectively or nationally owned, the waters and mudflats used by agricultural collective economic organisations to engage in aquaculture production. Disputes between the parties arising from using state-planned waters and beaches for aquaculture production shall be handled following the procedures stipulated in the relevant laws. Neither party may disrupt aquaculture production before the dispute has been resolved.

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(2) Legal provisions on the fishing industry The State determines the total allowable catch of fishery resources based on the principle that the catch is lower than the growth of fishery resources and implements a fishing quota system. The Fisheries Law stipulates that the competent fishery administrative department under the State Council shall organise surveys and assessments of fishery resources and provide scientific bases for implementing the fishing quota system. The total fishing quota for the internal sea, territorial sea, exclusive economic zone, and other waters under the jurisdiction of the People’s Republic of China shall be determined by the competent fishery administrative department under the State Council and reported to the State Council for approval before being decentralised at each level. The total fishing quota of important rivers and lakes designated by the State shall be determined or negotiated by the people’s governments of the relevant provinces, autonomous regions, and municipalities directly under the Central Government and shall be decentralised at each level. The allocation of total fishing quotas shall reflect the principles of fairness and impartiality, and the allocation methods and results shall be made public and subject to supervision. To protect fishery resources and strengthen the unified planning and comprehensive utilisation of fishery resources, the State shall implement a fishing licence system for the fishing industry. (3) Provisions on the enhancement and protection of fisheries resources To protect aquatic germplasm resources and their living environment, China shall establish aquatic germplasm resource protection zones in the primary growth and breeding areas of aquatic germplasm resources with high economic value and genetic breeding value. Without the approval of the competent fishery administrative department under the State Council, no unit or individual shall engage in fishing activities in the aquatic germplasm resources protection zone. The Fisheries Law limits fishing methods, duration, and areas. 3.5

Forest Resources Protection Law

China adopted the Forest Law (Trial) in 1979, and the Forest Law was promulgated and implemented in 1984. 1986 saw the issuance of the

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Rules for Implementing the Forest Law, January 1988 saw the issuance of the Regulations on Forest Fire Prevention (revised in 2008), 1989 saw the issuance of the Regulations on Forest Pest Control, and 1994 saw the issuance of the Regulations on Nature Reserves. On 29 January 2000, the State Council issued the Forest Law Regulations, which replaced the Rules for implementing the Forest Law. 3.5.1 Basic Principles of the Forest Resources Protection Law 1. The principle that the law protects the lawful rights and interests of the owners and users of forests, trees, and forest land Article 15(2) of the Forest Law stipulates, “The Law protects the lawful rights and interests of the owners and users of forests, forest trees, and forest land, and no organisation or individual may infringe upon it.” The development of forestry and the protection of forest resources in China require, first and foremost, that the various rights and interests of forest owners and users are protected from infringement. Only in this way can the whole society be mobilised to plant trees, protect forests, and love forests. The right of owners and users to own and use forests, trees, and woodlands is a fundamental civil right. Therefore, the legitimate rights and interests of forest owners and users are not only protected by the Forestry Law but are also an essential element of civil law protection. 2. The principle of economic support for forestry Forestry is one of the primary conditions for sustainable development. It is characterised by long production cycles, low return on investment, significant social and ecological benefits, and relatively weak market competitiveness. Therefore, the State must implement economic support policies for forestry, such as establishing forestry development funds and investment incentives. 3. The principle of sustainable use of forest resources Article 6 of the Forestry Law stipulates that the State shall aim to cultivate a stable, healthy, high-quality, and efficient forest ecosystem and

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implement classified management of public welfare forests and commercial forests. The leading functions are highlighted, and multiple functions are brought into play to achieve the sustainable use of forest resources. 3.5.2 Forestry Rights System Forest rights refer to the ownership and use of forest resources, such as forests, trees, and land. Ownership of forests and trees means that the owner has the right to possess, use, profit from, and dispose of the woods and trees in accordance with the law; therefore, the right to use is a type of ownership right. However, the right of use can be exercised by the owner or by a non-owner. The right of use of forests and trees, whether by owners or non-owners, can only be reasonably exercised within limits permitted by Law. The Forestry Law specifies the ownership of forests, trees, and forest land in the chapter “Forest Ownership.” The Law determines the subject of the ownership of state-owned forest resources, stipulates the manner and conditions for the transfer of state-owned and collectively owned forest resources, and emphasises the legitimate rights and interests of different subjects, such as the state, collectives, and individuals. Clarifying the ownership of forests and strengthening the protection of property rights is an essential fundamental system for strengthening ecological protection and promoting the construction of ecological civilization. 1. State forestry rights Article 9(1) of our Constitution provides that “The State, i.e., the whole people owns the natural resources such as mineral deposits, water flows, forests, mountains, grasslands, wastelands, and mudflats, except for collectively owned forests, mountains, grasslands, wastelands, and mudflats as provided by law.” Article 14(1) of the Forestry Law provides, “The State owns the forest resources, except for those collectively owned as provided by law.” 2. Collective forestry rights Collective forestry rights are the rights of villagers and other collective economic organisations to possess, use, profit, and dispose of forest

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resources such as forests and trees belonging to the collective economic organisations within the scope of the law. 3. Individual forestry rights Individual forestry right refers to the right of individual citizens to possess, use, profit from, and dispose of forest trees. Article 20 (2), (3), and (4) of the Forestry Law stipulates: “Forests planted by rural residents in their courtyards, on their land, and their hills shall belong to them. Individuals shall own forests planted by urban residents in their courtyards. The contracting collectives and individuals own the forest trees created by them through contracting for desolate hills, wastelands, and beaches suitable for afforestation owned by the State and the collectives; If the contract agrees otherwise, the agreement shall be honoured. Forest trees created by other organisations or individuals shall be owned and enjoyed by the creators in accordance with the law; If otherwise agreed in the contract, the agreement prevails.“ 4. Contract management system of collective forest land Collective forest land is mainly contracted to manage by farmers and operated by collective economic organisations on a unified basis. The newly revised Forestry Law focuses on dovetailing with the newly revised Rural Land Contract Law and on strengthening the legal system of liberalising the right to operate and implementing the right to income based on stable contracting rights. It also clarifies that contracted households enjoy the right to contract for the management of forest land and ownership of forest trees and can transfer the right to manage forest land, ownership, and use of forest trees by lease (subcontracting), shareholding, and transfer. In addition, the Opinions of the Central Committee of the Communist Party of China and the State Council on Comprehensively Promoting the Reform of the Collective Forest Rights System have also made corresponding provisions for forest land uniformly operated by the collective. In other words, “for forest land that is not suitable for family contract management, property rights may be implemented through other means such as equal shares and equal profits, with the consent of the members of the collective economic organisation in accordance with the law. Village collective economic organisations may retain a small amount of communal forest land for democratic management

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and administration by the collective economic organisations in accordance with the law.” The newly amended Forestry Law clarifies the legality of unified management of forest land by collective economic organisations and regulates the procedure for transfer. 5. Protection system for the rights and interests of forestry operators China stipulates the rights and interests of different ownership business entities over the forest trees they create. State-owned enterprises and institutions, organs, groups, and troops are responsible for the management and care of the forest trees they have created and the right to dispose of the proceeds of the forest trees following state regulations. Collective and other organisations and individuals have ownership of the forestry they have created and planted and the right to receive the proceeds from the forestry. Where the expropriation or requisition of forest land or trees is necessary for ecological protection, infrastructure construction, and other public interests, approval procedures shall follow the law, and fair and reasonable compensation shall be paid. 3.5.3 Legal Provisions on Afforestation The newly revised Forestry Law specifies the content of large-scale greening of the national territory in the form of a law, replacing the previous term “forest planting” with “afforestation,” aiming to pursue a more effective mobilisation of resources and elements of the whole society to participate in the greening of the national territory and the beautification of China. Article 42 of the Law stipulates the following: the State shall coordinate urban and rural afforestation and greening, carry out large-scale greening of the national territory, green and beautify cities and towns, promote the construction of forest cities, promote the revitalisation of the countryside, and build beautiful homes. The specific system is as follows: 1. Provisions of compulsory tree planting for all citizens Article 10 of the Forestry Law stipulates that citizens must plant trees and protect forests. It also stipulates that people’s governments at all levels shall organise compulsory tree-planting activities for all citizens; and that March 12 every year shall be designated as Tree Planting Day.

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2. Forest planting planning Article 26 of the Forestry Law stipulates that the competent forestry department of the people’s government at or above the county level may prepare unique plans for the protection and use of forest land, afforestation and greening, forest management, and natural forest protection, taking into account local realities. 3. Distribution of proceeds from afforestation Forests planted by state-owned enterprises and institutions, organs, groups, and troops shall be operated by the planting unit, and they shall dispose of the proceeds following state regulations. The contracting collectives and individuals own the forest trees created by them through contracting for desolate hills and wastelands suitable for afforestation owned by the State and the collectives; If the contract agrees otherwise, the agreement shall be honoured. Collectively owned units own the forest trees they have created. Individual contractors own the forest trees planted through contracting for collectively owned barren hills and wastelands suitable for afforestation or following the contract’s provisions. Rural residents own the trees they plant in their yards, lands, and hills. Urban residents own the forest trees planted in their yards. The law allows residents to transfer and inherit their forestry trees and their rights and interests in their yards, lands, and hills. 3.6

Grassland Resources Protection Act

3.6.1 Overview of Grassland Resources A grassland is a temperate, semi-arid region where dry perennial herbaceous plants or forage shrubs predominate and can be used for animal husbandry. Grassland is also a terrestrial ecosystem consisting of herbaceous communities and their environment. As defined in the Grassland Law, Grassland refers to both natural and artificial grasslands. Natural grasslands include meadows, grassy hills, and slopes, while artificial grasslands include improved grasslands and fallow grasslands but do not include urban grasslands.

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Grassland is an essential natural resource and an important ecosystem that plays a vital role in sand control, soil conservation, water conservation, nitrogen fixation, carbon storage, air purification, climate regulation, biodiversity maintenance, and the development of agriculture and animal husbandry. 3.6.2 Grassland Resources Protection Legislation The primary legislation for the protection of grassland resources in China is the Grassland Law of the People’s Republic of China, which was adopted at the 11th meeting of the Standing Committee of the Sixth National People’s Congress on 18 June 1985 and amended by the Standing Committee of the Ninth National People’s Congress on 28 December 2002. It was amended three more times in 2009, 2013, and 2021, with stricter regulations mainly on damage to grasslands caused by motor vehicles. It is the fundamental Law regulating the various social relations that occur in grasslands’ development, utilisation, construction, protection, and pastoral activities. In addition, there are the Regulations on Grassland Fire Prevention issued by the State Council on 5 October 1993, which was amended and adopted at the 36th executive meeting of the State Council on 19 November 2008 and came into force on 1 January 2009. 3.6.3 Basic Legal Provisions for Grassland Protection 1. Grassland tenure (1) Basic provisions Grasslands are owned by the State, except for grasslands that are collectively owned as provided by law. The State Council shall exercise the ownership of grasslands belonging to the State on behalf of the State. No unit or individual may encroach upon, buy, sell, or otherwise illegally transfer grasslands. The right to use grasslands owned by the State may be granted to units of national ownership and collective economic organisations following the law. People’s governments at or above the county level are responsible for registering and issuing certificates of use rights and confirming the right to use grasslands. People’s governments at or above the county level are responsible for registering state-owned grasslands for which the right to use has yet to be established and for protecting and managing

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them. The people’s governments at the county level are responsible for registering collectively owned grasslands, issuing ownership certificates, and confirming the ownership of grasslands. If the ownership of grasslands is to be changed under the law, the registration procedures for the change shall be carried out. Grassland ownership and use rights registered in accordance with the law are protected by law and may not be infringed upon by any unit or individual. 2. Grassland contract management rights To make effective use of grassland resources, the revised Grassland Law has improved the provisions on the right to contracting grassland management: Families or joint households within the collective economic organisation may contract to manage grasslands owned by the collective or the state-owned grasslands, which are determined by law to be used by the collective economic organisation. Suppose a unit or individual outside the collective economic organisation is contracted to operate the business. In that case, it must be agreed by more than 2/3 of the members of the village (herding) people’s meeting or more than 2/3 of the village (herding) people’s representatives and reported to the township (town) people’s government for approval. (2) Both parties to a grassland contract shall sign a written contract. The content of the grassland contract shall include the rights and obligations of both parties, the boundaries of the contracted grassland, the area and grade, the contracting period and the starting and ending dates, the use of the contracted grassland, and the liability for breach of contract. Upon the expiry of the contracting period, the original contractor shall have the right of first refusal under the same conditions. The unit or individual contracted to operate the grassland shall fulfil the obligation to protect, build and reasonably utilise the grassland in accordance with the use agreed in the contract. (3) The right to contract grassland management is protected by law and may be transferred in accordance with the principle of voluntariness and compensation. Grassland contract management rights shall be transferred with the consent of the issuing party. The third-party transferee must have the ability to engage in livestock production and shall fulfil the obligation to protect, build and reasonably utilise the grassland in accordance with the use agreed in the contract.

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(4) Settlement of disputes over ownership. Disputes over the ownership and use of grassland shall be settled by the parties concerned through consultation. If consultation fails, disputes between units shall be handled by the people’s government at or above the county level; Disputes between individuals or between individuals and units shall be handled by the people’s government of the township (town) or the people’s government at or above the county level. If the parties concerned are not satisfied with the decision of the people’s government concerned, they may sue in the people’s court according to the law. Before the dispute over grassland ownership is resolved, no party may change the status quo of grassland utilisation or destroy the grassland or its facilities. 3.6.4 Main Legal Measures for Grassland Protection 1. Development planning for grassland protection To achieve the macro-control of grassland resources by the State, as well as the classification management and rational use of grassland, it is necessary to formulate development plans for grassland protection. The revised Grassland Law provides for this in a particular chapter. (1) Unified planning system for grassland protection, construction, and utilisation The State shall implement a unified planning system for grasslands protection, construction, and use. (2) Principles of grassland protection, construction, and utilisation planning The preparation of grassland protection, construction, and utilisation plans shall be based on national economic and social development planning and shall follow the following principles: ➀ To improve the ecological environment, maintain biodiversity, and promote the sustainable use of grasslands; ➁ Based on the existing grasslands, the planning shall be made per local conditions and shall be guided by comprehensive planning and classification;

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➂ Protection should be the primary focus, construction should be strengthened, and the grasslands should be improved and used rationally; ➃ Combine ecological, economic, and social benefits. (3) The main contents of grassland protection, construction, and utilisation planning The main contents of the grassland protection, construction, and utilisation plan include the objectives and measures of grassland protection, construction, and utilisation; the overall planning of grassland functional zoning and various building; various specialised programmes; etc. The design of the grassland plan needs to be linked to the overall land use plan. Attention should also be paid to coordination with the following plans: environmental protection, soil and water conservation, sand control, long-term planning for forestry, urban planning, and planning for villages, market towns, and townships. 2. Grassland builing Grassland builing refers to the cultivation of grassland ecosystems and the establishment of related infrastructure and service systems. To change the current phenomenon of emphasising the use of grassland resources rather than their construction, the Grassland Law stipulates the following: (1) People’s governments at or above the county level shall increase investment in grassland buildings and encourage units and individuals to invest in grassland buildings in accordance with the principle that whoever invests benefits. (2) People’s governments at or above the county level shall be responsible for supporting the construction of grassland water conservancy facilities, improving water conditions for human beings and animals, strengthening the construction of grass seed bases, making preparations for fire prevention, and arranging funds for grassland improvement, artificial grass planting and grass seed production. (3) The State encourages and supports the construction of artificial grasslands, the improvement of natural grasslands, and the

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construction of forage bases, stabilises, and improves the production capacity of grasslands, and guides farmers and herders to change their mode of operation. (4) Local people’s governments at all levels should organise the special treatment of degraded, sandy, saline, rocky desertification, and soil erosion grasslands. Large-scale comprehensive grassland management should be included in the national land improvement plan. People’s governments at or above the county level shall, in accordance with grassland protection, construction, and utilisation plans, arrange funds for grassland improvement, artificial grass planting, and grass seed production in the national economic and social development plans at that level. No unit or individual shall retain or misappropriate such funds. The financial and audit departments of the people’s governments at or above the county level shall strengthen supervision and management in this regard. 3. Grassland utilisation To reverse the ecological imbalance caused by unreasonable production methods in grassland development and utilisation, the Grassland Law has made the following provisions: (1) Contracted operators of grasslands shall follow the ecological laws of grassland resources and make reasonable use of grasslands Contracted operators of grasslands shall make reasonable use of the grassland and shall not exceed the livestock carrying capacity approved by the administrative authorities of the grassland. Measures should be taken to plant and stockpile forage and fodder, increase the supply of forage and fodder, transfer and handle livestock, optimise the herd structure, and improve the slaughter rate to maintain a balance between grass and livestock. Contract operators of pastureland should implement zoning rotational grazing, reasonable allocation of herds, and balanced use of grassland.

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(2) Coordination of non-pastoral expropriation and use of grassland Where it is necessary to expropriate or use grassland for mining and engineering construction, an application for land for construction must be made per the relevant laws and administrative regulations on land management. It must be examined and approved by the administrative department in charge of the grassland of the people’s government at or above the provincial level. Where it is necessary to expropriate grasslands under collective ownership for construction reasons, compensation shall be given by the provisions of the Land Management Law of the People’s Republic of China. Where it is necessary to use grassland owned by the State for construction reasons, compensation shall be given to the contracted operator of the grassland by the relevant provisions of the State Council. If the grassland is requisitioned or used for construction purposes, the requisitioner or user shall pay a grassland vegetation restoration fee. (3) Provisions for temporary occupation of grassland Temporary occupation of grassland shall be subject to the approval of the grassland administrative department of the local people’s government at or above the county level. Temporary occupation of grassland shall not exceed two years and no permanent buildings or structures shall be constructed on the temporarily occupied grassland. At the end of the occupation period, the land-using unit must restore the grassland vegetation and return it in time. (4) Engineering facilities construction If grasslands are to be used to build engineering facilities that directly serve grassland protection and animal husbandry production on grasslands, the approval of the grassland administrative department of the people’s government at or above the county level is required. For the construction of other projects requiring grassland conversion into land for non-livestock production, approval procedures for construction land must be carried out following the law.

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4. Grassland protection To strengthen the protection of grassland resources, the State implements a primary grassland protection system and nature reserve system for grassland. (1) Primary grassland protection system Primary grasslands include: (1) critical grazing lands; (2) mowed grasslands; (3) artificial grasslands used for livestock production and ecological construction, returned grasslands, improved grasslands, and grass seed bases; (4) grasslands that have unique roles in regulating climate, nourishing water, maintaining soil and water, and preventing wind and sand; (5) grasslands that serve as a national priority for protecting the living environment of wild animals and plants; (6) Grasslands used as bases for scientific research and teaching experiments; (7) other grasslands that should be designated as primary grasslands as stipulated by the State Council. The primary grasslands shall be strictly managed. (2) Nature reserve system for grassland The main types of areas where grassland nature reserves can be established are: representative grassland types; rare and endangered wildlife distribution areas; and grasslands with important ecological functions and economic and scientific research values. (3) Necessary restrictions on grassland development and use To prevent excessive and inappropriate exploitation of grassland, the revised Grassland Law also establishes a system of grass-livestock balance, a method of returning grassland to cultivation, a system of grazing ban and grazing rest, and provides for the cultivation of forage and fodder, the development of business tourism activities, grassland fire prevention and the control of rodents, pests, and poisonous grasses. 5. Provisions for grassland fire prevention Grassland fires are the most common cause of grassland destruction and must be given high priority. The Grassland Law and the Regulations

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on Grassland Fire Prevention provide comprehensive regulations on this subject: (1) Prevention To prevent grassland fires, the law provides for a system of responsibility for grassland fire prevention, a system of joint prevention, a system of grassland fire prevention periods and zones, a system of construction of grassland fire prevention facilities, and a system of monitoring grassland fire risks. (2) Fighting To effectively combat grassland fires, the law provides a reporting system for grassland fires, an organisational command and coordination system for fighting grassland fires, and an inspection and acceptance system after the fires have been extinguished. (3) Aftercare work The aftermath of grassland fires includes epidemic prevention, reassurance, payment of suppression expenses, investigation, and grassland fire statistics.

4

Non-Living Resources Protection Act

Non-living resources are natural resources other than living resources protected by law. Compared with living resources, many non-living resources are limited, irreplaceable, and non-renewable and often exist in the ecological environment as environmental elements for various organisms. The State implements a land use control system and provides exceptional protection for arable land. Water resources refer to surface water and groundwater. The State owns water resources. The water in the reservoirs of rural collective economic organisations and reservoirs built and managed by rural collective economic organisations is used by the respective rural collective economic organisations. The State protects the legitimate rights and interests of units and individuals who develop and utilise water resources by the law. Soil and water conservation refers to the measures taken to prevent and control soil and water

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erosion caused by natural factors and human activities. The State implements prevention-oriented policy, comprehensive planning, integrated prevention and control, site-specific measures, enhanced management, and focus on soil and water conservation benefits. Mineral resources are non-renewable natural resources. Mineral resources law is a general term for the legal norms regulating various socio-economic relationships in exploring, developing, utilising, and protecting mineral resources. The State implements the policy of unified planning, rational layout, comprehensive exploration, reasonable exploitation, and comprehensive utilisation of mineral resources in the exploration and development. Mineral resources belong to the State. The State implements a system of paid use of mineral resources. The development and use of mineral resources must coordinate with environmental protection. 4.1

Land Resources Protection Act

4.1.1 Concept and Classification of Land Resources Land resources are natural complexes consisting of topography, soil, vegetation, hydrology, climate, and other natural elements, which are not only the primary means of production for agricultural production but also a storage site for minerals and a habitat for wild animals and plants. The land is an essential natural resource for human survival and a critical element of the ecological environment, the basis for the existence and reproduction of all renewable resources on earth. China’s Land Management Law divides land into agricultural land, construction land, and unused land. Agricultural land is directly used for agricultural production, including arable land, forest land, grassland, agricultural water conservancy land, and farming water surface. Construction land refers to the land on which buildings and structures are constructed, including land for urban and rural housing and public facilities, industrial and mining land, land for transportation and water conservancy, tourism, and military facilities. Unused land refers to land other than agricultural land and land for construction. 4.1.2 Legislation on the Protection of Land Resources in China China has always attached importance to the legislative work on the protection of land resources. In June 1950, the Central People’s Government promulgated the Land Reform Law, and in 1953 and 1957,

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it promulgated the Measures for the Expropriation of Land for State Construction and the Provisional Outline on Soil and Water Conservation, respectively. 1982 saw the Constitution stipulating that all organisations and individuals using land must use it rationally. In the same year, the State Council issued the Regulations on the Expropriation of Land for State Construction and the Regulations on Soil and Water Conservation, and in 1986, the National People’s Congress passed the Land Administration Law, which was amended or revised four times, in December 1988, August 1998, August 2004 and August 2019. Presently, the legislation on the protection of land resources in China mainly includes the Land Administration Law and its implementing regulations, the Law on Soil and Water Conservation and its implementing regulations, the Regulations on Land Reclamation, and the Regulations on the Protection of Basic Farmland. In addition, Agricultural Law, Mineral Resources Law, Environmental Protection Law, and other laws also contain some provisions for protecting land resources. 4.1.3 Legal Regime for the Protection of Land Resources 1. Land tenure system China has a socialist system of public ownership of land, i.e., national and collective ownership. The State Council exercises ownership of land owned by the State on behalf of the State. The State owns land in urban areas. The land in rural and suburban areas is collectively owned, except for that provided by law to be owned by the State; Residential bases and land and hills reserved for private use are also collectively owned. State-owned and collectively owned land may be determined by law for use by units or individuals. The unit or individual using the land must protect, manage and reasonably utilise the land. No unit or individual may encroach on, buy, sell, or otherwise illegally transfer land. The right to use land may be transferred in accordance with the law. 2. Land use control system To rationalise land use and optimise its environmental performance, the State implements a system of land use control, i.e., it prescribes land

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use through the preparation of a general plan for land use, i.e., the land is divided into agricultural land, construction land, and unused land. The conversion of agricultural land into construction land is strictly limited, the total construction land is controlled, and exceptional protection is given to arable land. 3. Land supervision and management system The land administration department of the State Council is uniformly responsible for the management and supervision of land throughout the country. The establishment and responsibilities of the land administrative departments of local people’s governments above the county level shall be determined by the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government by the relevant provisions. The people’s governments at the township level are responsible for land administration within their administrative areas. 4. Management of soil and water conservation Article 5 of the Law on Soil and Water Conservation stipulates that the competent water administration department of the State Council shall be in charge of the work of soil and water conservation throughout the country. The watershed management agencies established by the water administration department of the State Council in the important rivers and lakes determined by the State (hereinafter referred to as watershed management agencies) shall assume the supervision and management of soil and water conservation within their jurisdiction in accordance with the law. The water administration department of the local people’s government at or above the county level is in charge of the water and soil conservation work in its administrative region. Forestry, agriculture, land resources, and other relevant departments of the people’s governments at or above the county level shall, per their respective responsibilities, do an excellent job in the prevention and control of soil erosion.

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5. Conservation of arable land Arable land is the most basic and irreplaceable means of production for agricultural production. The current situation of China’s arable land resources is serious, manifested in the following aspects: • The quantity of arable land is decreasing year by year. • The quality is constantly degrading. • There is a series of problems, such as insufficient reserve resources. It is urgent to strengthen the protection of arable land. The Land Management Law and related regulations have made specific provisions for the protection of arable land: (1) The State implements a compensation system for the occupation of arable land to achieve a dynamic balance of the total amount of arable land To prevent the decrease in the quantity of arable land, the State implements a compensation system for arable land. Where arable land is occupied for non-agricultural construction, the unit occupying the land shall be responsible for reclaiming arable land in a quantity and quality comparable to the arable land occupied by the principle of “reclaiming as much land as is occupied.” Suppose the reclamation conditions are unavailable or the cultivated land does not meet the requirements. In that case, they shall pay a cultivation fee following the provisions of the province, autonomous region, or municipality directly under the Central Government, which shall be used for the reclamation of newly cultivated land. The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall formulate plans for the reclamation of arable land, supervise the units occupying arable land to reclaim or organise the reclamation of arable land by the plans, and carry out inspection and acceptance.

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(2) Ensure that the total amount of arable land is not reduced The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall strictly implement the general and annual land use plans and take measures to ensure that the total amount of arable land within their administrative regions is not reduced. Where the total amount of arable land is reduced, the State Council shall order the organisation of the reclamation of arable land of a quantity and quality equivalent to the reduced arable land within a specified period. The competent land administration department of the State Council, in conjunction with the competent agricultural administration department, shall inspect and accept the land. Suppose the amount of newly reclaimed arable land needs to be increased to compensate for the amount taken up by individual provinces and municipalities directly under the Central Government due to a lack of land reserve resources. In that case, they must report to the State Council for approval to reduce or exempt the amount of arable land reclaimed within their administrative regions and to reclaim arable land of comparable quantity and quality elsewhere. (3) Economic use of land and prohibition of idle and abandoned arable land To conserve the use of land, the law strictly restricts the use of land for non-agricultural construction. For example, arable land shall not be occupied if barren land is available, and good land shall not be occupied if poor land is available. The following acts are prohibited: occupying arable land to build kilns or graves or building houses, digging sand, quarrying stones, mining and extracting soil on arable land without permission; occupying basic agricultural land to develop forestry and fruit industry and digging ponds to raise fish; any unit or individual idling or deserting arable land. (4) Encouraging the reasonable development of unexploited land The State encourages units and individuals to develop unused land per the overall land use plan to protect and improve the ecological environment and prevent soil erosion and land desertification. Where

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land is suitable for development as agricultural land, priority shall be given to developing it as agricultural land. The State protects developers’ legitimate rights and interests in accordance with the law. (5) Maintaining the quality of cultivated land People’s governments at all levels shall take measures to maintain drainage and irrigation engineering facilities, improve soil, enhance land strength, and prevent land desertification, salinization, soil erosion, and land pollution. The State encourages land consolidation. The people’s governments of counties and townships shall organise rural collective economic organisations to make comprehensive improvements to fields, water, roads, forests, and villages following the overall land use plan to improve the quality of arable land, increase the area of adequate arable land and improve agricultural production conditions and the ecological environment. Local people’s governments at all levels should take measures to transform medium and low-yielding land and improve idle land and abandoned land. (6) Protection of primary farmland The State implements a system for the protection of permanent primary farmland. The following arable land shall be designated as permanent primary farmland per the general land use plan and be strictly protected: arable land within the production bases of critical agricultural products such as grain, cotton, oil, and sugar, as determined by the competent agricultural and rural authorities under the State Council or approved by local people’s governments at or above the county level; arable land with good water and soil conservation facilities, medium- and low-yielding fields undergoing renovation plans, and those that can be renovated, as well as completed high-standard farmland; vegetable production bases; agricultural research and experimental teaching fields; and other arable lands as specified by the State Council. The county-level people’s government designates the primary farmland protection zone to set up protection signs. Any unit or individual shall not destroy or change the protection signs of the primary farmland protection

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zone. After the permanent bare farmland has been delineated by law, no unit or individual shall occupy or change its use without permission. Provinces, autonomous regions, and municipalities directly under the Central Government to designate the permanent primary farmland should generally account for more than 80 per cent of the arable land in the administrative region. The State Council shall prescribe the specific proportion based on the actual situation of arable land in each province, autonomous region, or municipality directly under the Central Government. 6. Land reclamation system The Land Management Law and the Mineral Resources Law both provide for land reclamation in principle. The State Council adopted the Regulations on Land Reclamation at its 145th executive meeting on 22 February 2011. By combining the relevant laws and regulations, we can summarise the main legal provisions on land reclamation as follows: (1) According to the principle of “whoever destroys, reclaims,” production and construction units or individuals (hereinafter referred to as land reclamation obligors) are responsible for reclaiming the land destroyed by production and construction activities. (2) To urge land reclamation obligors to fulfil their land reclamation obligations consciously, the law makes the following specific provisions: establishing a system for the preparation and review of land reclamation plans; strengthening supervision and management of the implementation of land reclamation; establishing a land reclamation fee system; improving the procedures and requirements for acceptance of land reclamation; and strengthening the means of restraint against land reclamation obligors who do not fulfil their land reclamation obligations in accordance with the law. (3) To strengthen the reclamation of historically damaged land and land damaged by natural disasters, the law requires the preparation of unique plans for land reclamation, specifying investment channels, and regulating the management methods and requirements for land reclamation projects.

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(4) To mobilise the whole society to participate in land reclamation, the law also provides for a series of incentives: tax incentives for land reclamation duty-bearers to undertake reclamation actively; incentives for social investors to participate in reclamation; incentives for land rights holders to undertake reclamation on their own; and incentives for local governments to undertake reclamation.

7. Strict control of construction land to avoid indiscriminate occupation and waste of land To strictly control all kinds of land for construction and avoid indiscriminate occupation and waste of land, Chapter 5 of the Land Management Law sets out specific regulations on land use for construction. If it is necessary to use state-owned land for construction, an application must be made by the law. Exceptions to this are the following: the use of land collectively owned by the peasants of the collective economic organisation for the establishment of township enterprises and the construction of residential houses by villagers, or the construction of public facilities and public welfare undertakings in the township (township) or village, as approved by law. If agricultural land is converted into land for construction, the approval procedures for the conversion of agricultural land shall be carried out. Expropriation of land by the State must be carried out following legal procedures. (1) Approval Authority The State Council shall approve the expropriation of primary farmland, arable land other than primary farmland exceeding 35 hectares, and other land exceeding 70 hectares. In the case of expropriation of other lands, the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall approve the expropriation and report it to the State Council for the record.

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(2) Expropriation compensation system To effectively safeguard the interests of farmers, compensation shall be paid for the expropriated farmers’ land per its original use. Compensation for the expropriation of arable land includes compensation for land, resettlement grants, and compensation for land attachment and seedlings. The State implements a system of paid use of state-owned land by the law. Construction units using state-owned land shall, in principle, acquire it through paid use, such as grants. However, approved by the people’s government at or above the county level, construction land may also be acquired by allocation. The construction land to be acquired by way of allocation includes the following: (1) land for state organs and military purposes; (2) land for urban infrastructure and public welfare purposes; (3) land for energy, transportation, water conservancy, and other infrastructure supported by the state; and (4) other land provided for by laws and administrative regulations. A construction unit that acquires the right to use state-owned land by grant or other paid use may use the land only after paying land use fees and other fees, such as land use right grant, following the standards and methods the State Council prescribes. 4.2

Water Resources Protection and Soil and Water Conservation Law

4.2.1 Water Resources Protection 1. Concept of water resources Water resources mainly refer to terrestrial water resources. China’s “Water Law” provides that the water resources referred to in this law refer to surface water and groundwater. Seawater development, use, protection, and management shall be separately regulated. Water resources usually include surface water and groundwater. Surface water refers to the water contained in rivers, lakes, ponds, reservoirs, canals, glaciers, and snow. In contrast, groundwater refers to the shallow groundwater located in the rocks of the upper part of the earth’s crust. Water resources are a

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vital material basis for human survival, a material prerequisite for sustainable development, and an important controlling factor for the ecological environment. 2. Water resources protection legislation China has permanently attached great importance to the protection of water resources and has always emphasised the rational development and use of water resources and their protection and management. In particular, since the 1980s, China has enacted several laws and regulations on water management and use. Currently, the fundamental water resources protection law in China is the Water Law of the People’s Republic of China, which was adopted by the Standing Committee of the National People’s Congress on 21 January 1988. The Law was first amended in 2002 and has been amended twice, in August 2009 and July 2016. In addition, water resources-related legislation includes the Law on Soil and Water Conservation, the Regulations on River Management, the Regulations on Urban Water Supply, the Regulations on Urban Water Conservation, the Regulations on Flood Control, the Regulations on Water Abstraction Permits and Collection of Water Resources Fees, and the Law on Water Pollution Prevention and Control. 3. Main elements of water resources protection law

(1) Tenure system The State owns water resources in China. The State Council exercises ownership of water resources on behalf of the State. The water in reservoirs and reservoirs built and managed by rural collective economic organisations shall be used by the respective rural collective economic organisations. Establishing a system of state ownership of water resources is conducive to macro management, rational allocation, conservation, pollution prevention, and adequate protection of water resources by the State.

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(2) Paid use system The State implements a water abstraction permit system and a paid-use system for water resources, except for the use by rural collective economic organisations and their members of water in the ponds and reservoirs of the communal economic organisations. The system of paid use of water resources establishes the guiding principle that resources have a price and provides institutional guarantees for the rational and practical development and use of water resources and the optimal allocation of water resources under market economy conditions. The exception for rural collective economic organisations and their members to use water resources in the ponds and reservoirs of the collective economic organisations is a beneficial initiative designed with the following considerations in mind: to take complete account of the primary conditions of China as a big agricultural country, to reduce the burden on farmers and to stimulate and protect the enthusiasm of rural collective economic organisations and farmers to build farmland water conservancy facilities. This system reflects the spirit of the central government’s intention to fundamentally solve the “three rural issues, i.e., issues concerning agriculture, countryside, and farmers” in China and is crucial to the healthy and rapid development of our rural economy and promoting a harmonious society. (3) Basic principles of water resources protection First, the State encourages and supports the development and utilisation of water resources and the prevention and control of water hazards. We should do the following in developing, utilising, conserving, and protecting water resources and preventing and controlling water hazards: • Comprehensive planning, coordinating, and balancing, treating both the symptoms and the root causes; • Utilising water in an integrated manner and focusing on benefits; • Giving full play to the multiple functions of water resources; • Coordinating water use for living, production, and operation and the ecological environment.

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Secondly, the State shall take various effective measures to protect natural vegetation, plant trees, and grass, conserve water, prevent soil erosion, and improve the ecological environment. Thirdly, conserve water. The State shall vigorously implement water conservation measures, promote new technologies and techniques for water conservation, develop water-conserving industries, agriculture, and services, and establish a water-conserving society. People’s governments at all levels should take measures to strengthen water conservation management, establish a system for developing and promoting water conservation technology, and cultivate and develop water conservation industries. Units and individuals must conserve water. Fourth, strengthen the prevention and control of water pollution, and protect and improve water quality. People’s governments at all levels shall, by the provisions of the Water Pollution Prevention and Control Law, strengthen the supervision and management of water pollution prevention and control. 4. Protection of water resources, waters, and water works

(1) Protection of water resources In formulating plans for the development and utilisation of water resources and in dispatching water resources, the water administration departments, watershed management agencies, and other relevant departments of the people’s governments at or above the county level shall pay attention to maintaining a good flow of rivers and a reasonable water level in lakes and reservoirs as well as groundwater, and to maintaining the natural purification capacity of water bodies. (2) Protection of Waters To effectively protect waters, the law provides for the following measures: First, implement the system of water function zones. The water administration department of the State Council, together with the ecological and environmental authorities, relevant departments, and the people’s

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governments of the relevant provinces, autonomous regions, and municipalities directly under the Central Government, shall, in accordance with the comprehensive planning of river basins, water resources protection planning and the requirements of economic and social development, draw up the water function zoning of the important rivers and lakes identified by the State Council and submit them to the State Council for approval. The water function zones of other rivers and lakes straddling provinces, autonomous regions, and municipalities directly under the central government shall be drawn up by the relevant river basin management agencies in conjunction with the competent water administration department, the competent ecological environment department, and other relevant departments of the people’s government of the province, autonomous region or municipality directly under the central government where the river or lake is located. The people’s governments of the provinces, autonomous regions, and municipalities directly under the Central Government concerned shall review the draft and submit their opinions. And then it shall be submitted to the competent department of water administration under the State Council, in conjunction with the competent department of ecology and environment, for examination and approval by the State Council or the department authorised by it. Second, implement the protection zone system for the drinking water source. The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall designate protected areas for drinking water sources, and take measures to prevent the depletion of water sources and water pollution to ensure the safety of urban and rural residents’ drinking water. It is forbidden to set up sewage outlets in the protected areas of drinking water sources. Third, protect watercourses to prevent flooding and navigation obstacles. Fourthly, prohibit enclosing lakes to make fields or reclaim rivers. If reclamation is essential, it must be scientifically proven. After approval by the competent water administration department of the people’s government of the province, autonomous region, or municipality directly under the Central Government or the competent water administration department of the State Council, it shall be reported to the people’s government at this level for approval. Fifth, protect groundwater. Groundwater exploitation must be based on water resources investigation and evaluation, implementing unified planning, and strengthening supervision and management. In areas with

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excessive groundwater exploitation, local people’s governments at or above the county level shall strictly control groundwater exploitation. With the approval of the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government, areas, where groundwater exploitation is prohibited or restricted, may be designated where groundwater exploitation is seriously over-exploited. Groundwater extraction in coastal areas should be scientifically proven feasible, and measures should be taken to prevent ground subsidence and seawater intrusion. (3) Water engineering management Water projects refer to the rivers, lakes, and underground water sources, the development, utilisation, control, deployment, and protection of water resources of all kinds of projects. Local people’s governments at or above the county level shall take measures to ensure the safety of water projects in the administrative region, especially dams and embankments, to eliminate dangerous situations. Water administrative departments shall strengthen the supervision and management of the safety of water projects. Units and individuals must protect water projects. Blasting, well-drilling, quarrying, soil extraction, and other activities that endanger the safety of water projects are prohibited within the protection zone of water projects. 5. Water conservation To alleviate the growing shortage of water resources, the State has introduced a series of water conservation measures to build a “watersaving society.” These measures include: (1) People’s governments should promote water-saving irrigation methods and water-saving techniques and take the necessary measures to prevent leakage in agricultural water storage and transmission projects to improve agricultural water use efficiency; (2) Industrial water use should adopt advanced technologies, techniques, and equipment, increase the number of water cycles and improve the water reuse rate; (3) Urban people’s governments should take effective measures based on local conditions, including promoting water-saving domestic water appliances, reducing the leakage rate of

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urban water supply networks, and improving domestic water use efficiency. At the same time, they should strengthen centralised urban sewage treatment, encourage the use of recycled water and improve the recycling rate of sewage; (4) Water conservation measures should be formulated for construction, expansion, and reconstruction projects, and water conservation facilities should be built to support them. Water conservation facilities should be designed, constructed, and operated simultaneously as the main project. 4.2.2 Soil and Water Conservation Act 1. Soil erosion Soil erosion is a phenomenon in which the soil is disrupted and loosened by water infiltration and impact and is dispersed by water flow, mainly in areas without good cover. Soil erosion causes the reduction of land area, deterioration of land quality, siltation of rivers, mudslides, and landslides, which are very harmful to the ecosystem and the average production and life of human beings. Therefore, soil and water conservation work must be strengthened. Soil and water conservation refers to the preventive and control measures against soil and water erosion caused by natural factors and human activities. China’s Soil and Water Conservation Law stipulates that any unit or individual must protect soil and water resources and prevent and control soil and water erosion. They also have the right to report acts that damage soil and water resources and cause soil and water erosion. Soil erosion is one of the serious environmental problems in China. Soil erosion in China has the following characteristics: (1) Soil erosion has a wide distribution. Most provinces, autonomous regions, and municipalities directly under the Central Government have soil erosion problems of varying degrees, especially in the upper reaches of the Yangtze River, the middle reaches of the Yellow River, the black land in the northeast, and the limestone areas of the Pearl River Basin. (2) Soil erosion mainly comes from hydraulic erosion of sloping land and gravitational erosion of gullies, thus destroying soil and water resources and reducing land productivity.

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(3) With the accelerated industrialisation and urbanisation in China, many infrastructure developments and construction activities have caused severe soil erosion. In addition, the desertification of land and the sanding of grasslands are still expanding rapidly. The situation of soil and water erosion in China and its problems are dire. The prevention and control of soil erosion is a significant issue related to water security, food security, and ecological security in China and is also an essential element of environmental protection law. 2. Soil and water conservation legislation In 1991, the Standing Committee of the National People’s Congress adopted the Law on Soil and Water Conservation; In 1993, the State Council issued the Circular on Strengthening Soil and Water Conservation Work, and in the same year, it also issued the Regulations on the Implementation of the Law on Soil and Water Conservation. The Soil and Water Conservation Law and its implementing regulations provide comprehensive regulations on soil and water conservation work. The Law on Soil and Water Conservation was amended on 25 December 2010 and came into force on 1 March 2011. In addition, China has also introduced soil and water conservation requirements in the Environmental Protection Law, the Land Management Law, the Grassland Law, the Water Law, and the Agricultural Law. 3. Policy and system of soil and water conservation The State implements the policy of prevention-oriented, protection first, comprehensive planning, integrated management, site-specific, focused, scientific management, and benefit-oriented for soil and water conservation. Soil and water conservation system includes: (1) Soil and water conservation planning system Soil and water conservation planning shall be prepared based on the results of soil and water erosion surveys and the delineation of critical soil

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and water erosion prevention and treatment areas, following coordination and classification guidance principles. The content of the soil and water conservation plan shall include the status of soil and water erosion, the division of soil and water erosion type areas, and soil and water erosion prevention and control objectives, tasks, and measures. (2) Monitoring and announcement system The people’s governments at or above the county level shall strengthen the monitoring of soil and water conservation and give play to the role of soil and water conservation monitoring in government decision-making, economic and social development, and public services. People’s governments at or above the county level shall guarantee to fund soil and water conservation monitoring work. The competent water administration department of the State Council shall improve the national soil and water conservation monitoring network and conduct dynamic monitoring of soil and water erosion nationwide. The competent water administration departments of the State Council and the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall based on the monitoring of soil and water conservation, regularly make announcements on the following matters: • the type, area, intensity, distribution, and trend of soil and water erosion; • the hazards caused by soil and water erosion; • the prevention and treatment of soil and water erosion. (3) Prevention of soil erosion To prevent soil erosion, we must do the following: Plant trees and grass to protect vegetation; Protect sloping land; Manage the harvesting and renewal of forest trees, deforestation, deforestation and reclamation, and the collection of hairy vegetables; Prohibit deforestation, deforestation and reclamation and the collection of hairy vegetables; And strengthen the management of engineering and construction projects.

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(4) Soil erosion management Soil and water management require a combination of prevention and control. For the soil erosion that has already occurred, emphasis should be placed on treatment. To this end, the State will strengthen the following aspects: (1) construction of critical soil and water conservation projects, such as converting sloping land into terraced fields and building silt dams in crucial soil and water erosion prevention and treatment areas; (2) ecological restoration; (3) prevention and treatment of soil and water erosion in river source areas, drinking water source protection areas, and water connotation areas; (4) raising funds through multiple channels; and (5) incorporating compensation for ecological benefits of soil and water conservation into the ecological benefit compensation system established by the State. People’s governments at or above the county level shall, following the water and soil conservation plan, organise the relevant administrative departments and units to control water and soil erosion in a planned manner. The water administration department of the people’s government above the county level should strengthen the construction management of critical projects for soil and water conservation and establish and improve the operation and management system. 4.3

Mineral Resources Protection Act

4.3.1 Overview of Mineral Resources 1. Concept and classification of mineral resources Mineral resources refer to minerals used for production and living in the earth’s crust, including metallic, non-metallic, fuel, underground water, and underground thermal energy in solid, liquid, and gaseous states. Mineral resources are an essential source of production and livelihood for human society and are characterised by their long-term formation, hidden nature, uneven distribution, and depletion in use. Mineral resources are non-renewable natural resources and an essential material basis for human survival and development. According to the Implementing Rules of the Mineral Resources Law, we can classify mineral resources according to their nature and use into four categories: energy, metal, non-metal, and water and gas minerals. To facilitate the development and utilisation, the two categories of

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metallic and non-metallic minerals are usually subdivided into ferrous, non-ferrous, precious metal, rare metal minerals, rare earth, and rare element minerals, metallurgical auxiliary raw material minerals, chemical raw material non-metallic, construction materials, and other non-metallic minerals. 4.3.2

The Regulatory System for the Protection and Management of Mineral Resources Mineral resources law is a general term for the legal norms regulating various socio-economic relationships in exploring, developing, utilising, and protecting mineral resources. China promulgated the Mineral Resources Law in 1986, amended in 2009. With the comprehensive promotion of the construction of the mineral resources legal system, China has promulgated and implemented laws such as the Mine Safety Law (issued in 1992 and amended in 2009), the Coal Law (adopted in 1996 and amended for the fourth time in 2016) and the Regulations on Foreign Cooperative Exploitation of Offshore Petroleum Resources (amended in 2013), the Interim Measures for Supervision and Administration of Mineral Resources (1987), the Regulations on Foreign Cooperative Exploitation of Onshore Petroleum Resources (amended in 2013), the Regulations on Cooperative Exploitation of Onshore Petroleum Resources (amended in 2013), Administrative Regulations on the Collection of Mineral Resources Compensation Fees (amended in 1997), Rules for the Implementation of the Mineral Resources Law (1994), Measures for the Administration of Registration of Mineral Resources Exploration Blocks (amended in 2014), Measures for the Administration of Registration of Mineral Resources Exploitation (amended in 2014), Measures for the Administration of Transfer of Prospecting Rights and Mining Rights (amended in 2014) and other rules and regulations. 4.3.3

Basic Principles of Mineral Resources Conservation and Management 1. Principle of state ownership of mineral resources

Article 3(1) of the Mineral Resources Law stipulates: “The State owns mineral resources, and the State Council shall exercise state ownership of mineral resources.” The ownership or right to use the land to which the

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mineral resources on the surface or underground are attached does not change the nature of state ownership of the mineral resources. 2. The principle of centralised and unified management of mineral resources by the state The nature of the single-state ownership of mineral resources determines that the top-down centralised and unified management should be carried out by the competent authorities to ensure the orderly development and utilisation of mineral resources and the rights and interests of the state owners. 3. The principle of paid use of mineral resources and exploration and exploitation by the law Mineral resources belong to the state, and no unit or individual has the right to possess or dispose of them without authorisation. To engage in mineral resources exploration and exploitation, one must apply for exploration and exploitation licences and obtain the right to explore and exploit mineral resources per the law. At the same time, one should also fulfil the obligations stipulated in the law. 4. The principle of rational development and utilisation This principle refers to following the special economic laws determined by the non-renewable nature of mineral resources and fully developing and comprehensively utilising mineral resources according to their various components and quantities, under certain economic and technical conditions and at a certain level of economic development. The following features characterise China’s mineral resources: a sizeable total quantity but a small per capita, many poor and difficult-to-select minerals, many co-existing minerals, and few single deposits. Therefore, under the transition economy, we must adhere to the policy of “development in protection and protection in development,” continuously improve the production process, raise the level of comprehensive utilisation, and reasonably develop and economically and intensively utilise resources.

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5. The principle of coordinating the protection of mineral resources with environmental protection The Mineral Resources Law stipulates that “the exploitation of mineral resources must comply with the legal provisions on environmental protection and prevent environmental pollution” and that the exploitation of mineral resources shall be restricted in areas designated by the State as nature reserves, important scenic spots, and the locations of historical relics and famous monuments that cannot be moved and protected by the State. 4.3.4 Prospecting and Mining Rights Exploration and exploitation of mineral resources are subject to the approval of prospecting rights and mining rights and registration, respectively, upon application per the law; however, except for exploration by mining companies granted mining rights per the law within the delineated scope for the company’s production. The State protects the rights of exploration and mining from infringement and safeguards the production and working order of mining and exploration operation areas from being affected or damaged. The State implements a licencing system for the exploration and exploitation of mineral resources and a system for acquiring exploration and mining rights for a fee. The exploitation of mineral resources must be subject to the payment of resource taxes and resource compensation fees following the relevant provisions of the State.

5 Regional-Specific Environmental Protection Laws 5.1

The Concept and Characteristics of the Specific Regional Environment

A specific regional environment refers to a specific spatial environment artificially designated by law and given special protection based on the unique needs of ecological protection, economic and cultural construction, scientific research, and other aspects, for example, nature reserves, ecological function areas, scenic spots, forest parks, human relics.

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The environment of a particular region is an essentially natural and cultural heritage and a valuable asset left to people by nature and social history. Most are an optimised complex of specific historical, cultural, and natural factors. Some are the most typical, scarce, and irreplaceable areas of the natural environment, with significant economic, cultural, and ecological value, and once damaged, are generally challenging to restore and are, therefore, areas that need to be conserved. In contrast to the general environment, specific regional environments have characteristics of regional specificity, non-renewability, and typical values. Area-specific environmental protection law is the general term for the various legal norms governing the development, use, protection, and management of environmental resources and the protection and management of environmental quality in a given area. It is an essential part of environmental law. China’s Environmental Protection Law stipulates that the State shall designate ecological protection red lines in critical ecological function areas, ecologically sensitive and fragile areas, and other areas and implement strict protection. People’s governments at all levels shall take measures to protect the following areas and strictly prohibit them from being destroyed: representative areas of various types of natural ecosystems, areas of the natural distribution of rare and endangered wild flora and fauna, critical water-conserving areas, geological formations, famous cave, and fossil distribution areas, glaciers, volcanoes, hot springs and other natural relics of great scientific and cultural value, as well as human relics and old and valuable trees. “In addition to the fundamental laws on environmental protection and the individual laws on pollution prevention and control and natural resource protection, specific laws and regulations for the region are also applicable, such as the Regulations on Nature Reserves, the Regulations on Scenic Areas, the Measures for the Administration of Forest Parks, the Urban and Rural Planning Law, the Regulations on Urban Greening, the Regulations on the Planning and Construction of Villages and Market Towns, the National Wetland Park Management Measures and Measures for Supervision and Inspection of National Nature Reserves.

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Legal Protection of Natural Monuments (Heritage) and Human Monuments (Heritage)

5.2.1

The Concept of Natural Monuments (Heritages) and Human Monuments (Heritages) Natural monuments (heritages) and human monuments (heritages) are two essential components of the human ecological environment and should be protected by law. Natural heritage refers to specific natural areas and habitats of flora and fauna that have outstanding universal value from a scientific, conservation, and aesthetic point of view. Human monuments (heritages) are human cultural vehicles of outstanding universal value from a historical, scientific, and artistic point of view, such as architecture, murals, and inscriptions. The conservation of natural and cultural monuments is essential not only for the protection and improvement of the ecological environment but also for the carrying out of scientific, cultural, historical, and artistic research, the enrichment of people’s spiritual and cultural life, conducting patriotic education, the enhancement of national self-esteem and self-confidence and the promotion of international exchanges and cooperation. 5.2.2 World Natural and Human Heritage The Convention for the Protection of the World Cultural and Natural Heritage was adopted by the 17th General Conference of the United Nations Educational, Scientific and Cultural Organization in Paris on 21 November 1972 and signed into force on 23 November. The Convention defines natural and cultural heritage, sets out national and international responsibilities, the obligations of each State Party, the composition and responsibilities of the World Heritage Committee, the sources of the World Heritage Fund, the conditions and arrangements for international assistance, and educational programmes on World Heritage. It seeks to protect humanity’s natural and cultural heritage of outstanding value through international cooperation. China acceded to the Convention in 1985. The UNESCO World Heritage Committee meets once a year. The 28th session was held in Suzhou from 28 June to 7 July 2004. The meeting adopted more than 200 decisions, including the Suzhou Decision, and issued the Suzhou Declaration on World Heritage Youth Education. In July 2021, China hosted the 44th session of the World

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Heritage Conference again, and the Fuzhou Declaration was adopted. A total of 258 reports on the state of conservation of World Heritage properties were considered by the General Assembly this year. The World Heritage Committee highly valued the state of conservation of three properties, including the Great Wall of China and the Taï National Park and Comoy National Park in Côte d’Ivoire, as excellent examples. 5.2.3

Domestic Legislation on the Protection of Natural Monuments (Heritages) and Human Monuments (Heritages) in China Article 22 of the Constitution, as amended in 2022, stipulates that “the State shall protect famous monuments, precious cultural relics and other important historical and cultural heritage,” which is the basic principle and legislative basis for the protection of natural monuments and cultural heritage in China. The Environmental Protection Law, the Town and Country Planning Law, the Regulations on Nature Reserves, and the Regulations on Scenic Areas contain specific management guidelines, essential systems, and regulatory measures for protecting natural monuments and human heritages. 5.3

Legal Protection of Scenic Areas

5.3.1 Concept of Scenic Spots Scenic resources include natural and humanistic scenery and the environment and customs in which they are located. Natural scenery generally refers to mountains, rivers, lakes, seas, landforms, forests, plants and animals, fossils, unique geology, and astronomical meteorology, which have an ornamental, cultural, or scientific value. Humanistic scenery refers to cultural relics, revolutionary monuments, historical sites, gardens, buildings, and engineering facilities. A scenic spot is an area with ornamental, cultural, or scientific value, with a concentration of natural and humanistic landscapes and a beautiful environment for people to visit or conduct scientific or cultural activities. By the end of 2017, 244 national scenic spots had been established nationwide, with a total area of about 106,600 square kilometres, accounting for 1.11% of the country’s land area; 807 local scenic spots, with a total area of about 107,400 square kilometres. The area of scenic spots nationwide accounts for about 2.23% of the country’s land area. Forty-two national and ten provincial scenic spots have been inscribed on the UNESCO World Heritage List.

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5.3.2 Main Legislation on the Protection of Scenic Spots The primary legislation in force in China relating to the protection of scenic spots includes the Regulations on Scenic Spots (implemented in 2014 and amended in 2016), the Measures for the Review of State Key Scenic Spots (2004), and the Measures for the Construction and Management of the National Scenic Spots Supervision Information System (for Trial Implementation) (2007). The main contents include the following: 1. Management system Scenic spots include national and provincial levels. The State Construction Department is in charge of the supervision and management of scenic spots nationwide. Other relevant departments of the State Council are responsible for supervising and managing scenic spots following the division of responsibilities stipulated by the State Council. The construction departments of the people’s governments of provinces and autonomous regions and the departments in charge of scenic spots of the people’s governments of municipalities directly under the Central Government are responsible for the supervision and management of scenic spots within their administrative regions. The management agencies of scenic spots set up by the local people’s governments at or above the county level where the scenic spots are responsible for the protection, utilisation, and unified management of the scenic spots. 2. Planning system The planning of scenic spots is divided into overall and detailed planning. The preparation of the overall plan shall follow the following principles: reflecting the requirements of harmonious coexistence between man and nature, coordinated development of the region and comprehensive economic and social progress, adhering to the principle of giving priority to the protection and subordinating development to protection, and highlighting the natural characteristics, cultural connotations and local features of scenic resources. The overall plan shall include the following contents: evaluation of scenic resources; protection measures for ecological resources; layout of significant construction projects, the intensity of development and utilisation; functional structure and spatial layout

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of scenic spots; scope of prohibited and restricted development; visitor capacity of scenic spots; and relevant, unique plans. The preparation of the detailed plan shall take into account the different requirements of the core scenic area and other scenic areas, determine the location, layout, and scale of construction projects of infrastructure, tourism, and cultural facilities, and specify the scope of construction land and the conditions of planning and design. Detailed planning should be consistent with the overall plan. 3. Franchise system Units and individuals conducting business activities in scenic spots must obtain the consent of the management agency of the scenic spot and hold a business licence to operate in the prescribed areas and business scope. It is forbidden to set up all kinds of development zones in scenic spots in violation of scenic spot planning and to build hotels, guest houses, training centres, sanatoriums, and other buildings unrelated to the protection of scenic resources in the core scenic spots. Those already built should be moved out gradually per the scenic spot planning. 5.4

Legal Protection of Forest Parks

A forest park is a large area with planted or natural forests as the main body. It is where natural landscape and humanistic scenery are concentrated, with a particular scale, and where people can visit, rest or conduct scientific, cultural, and educational activities. 5.4.1 Main Legal Norms of Forest Park Management In 1980, the former Ministry of Forestry issued the Notice on the Protection of Mountain Forests and Development of Tourism in State-owned Forests in Scenic Areas. In January 1994, the former Ministry of Forestry published the Measures for the Management of Forest Parks and amended them twice in 2011 and 2016, respectively. In 2011, the State Forestry Administration issued the Measures for the Management of National Forest Parks. The main contents include the following:

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1. Management institutions Suppose a forest park is established within the scope of operation of a state-owned forestry bureau, forestry field, nursery, or collective forestry field. In that case, a management agency shall be established per the law. However, if a forest park is established within the scope of operation of state-owned forestry bureaus and nurseries, the management agency of the state-owned forestry bureaus and nurseries is also the management agency of the forest park, which is still a public institution. The management agency of a forest park is responsible for the planning, construction, operation, and management of the forest park. The agency enjoys the right to manage the forests, trees, woodlands, wildlife, water areas, scenic spots, and various facilities determined by law to be managed by it. Their legitimate rights and interests are protected by law and shall not be infringed upon by any unit or individual. 2. Management system

(1) Tiered management system Forest parks are divided into national, provincial, municipal, and county levels. Those with stunning forest landscapes concentrated humanistic scenery, high ornamental, scientific and cultural values, unique geographical location, certain regional representativeness, complete tourism service facilities, and high reputation can be rated as national forest parks. Those with beautiful forest landscapes, relatively concentrated humanistic scenery, relatively high ornamental, scientific and cultural values, a representative in the administrative region, with the necessary tourism service facilities, and a certain degree of popularity can be rated as provincial forest parks. Those with distinctive forest landscapes, scenic spots with some ornamental, scientific and cultural values, and high local popularity can be rated as municipal or county-level forest parks.

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(2) Approval system The State Forestry Administration is in charge of the supervision and management of national forest parks nationwide. For establishing national forest parks, the competent provincial forestry department shall submit a written application, feasibility study report, and information such as diagrams and photos to the State Forestry Administration for approval. The corresponding provincial or municipal and county-level forestry authorities shall approve the establishment of provincial forest parks and municipal and county-level forest parks. After the approval of the establishment of provincial forest parks and municipal and county-level forest parks, the provincial forestry authorities will report the relevant documents to the Ministry of Forestry for the record. The forest park’s abolition, merger, or change of business scope must be approved by the original approving unit. (3) Planning system The overall planning and design of the forest park should follow the following basic principles: Firstly, constructing a forest park should be guided by ecological and tourism economic theories, take conservation as the premise, and follow the principle of combining development and conservation; Secondly, the construction of forest parks should be based on forest tourism resources and oriented to the tourism source market, and the scale of construction must be adaptable to the scale of tourists; Third, the forest park should take the ecological environment as the main body, highlight the natural wilderness, health care, and other functions, make the best of local conditions, give full play to its advantages, and form a unique style and local characteristics; Fourth, to carry out a unified layout, coordinate construction projects, and do an excellent job of macro-control. When implementing specific construction projects, we should highlight the key points, start with the easy ones and then the difficult ones, and arrange for step-by-step implementation per the conditions.

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3. Forest park construction and protection regulations The management agency of the forest park alone may carry out the development and construction of a forest park. Suppose the forest park management agency and other units or individuals jointly carry out the form of joint venture or cooperation. In that case, the affiliation of the forest park management agency shall not be changed. The construction of facilities and attractions in forest parks must be carried out per the overall planning and design. 4. Forest park management regulations To occupy, expropriate or transfer forest land within the operation area of a forest park, the consent of the forest park management agency must be obtained. It is required to go through the procedures of occupation, expropriation, or transfer by the Forestry Law and its implementation rules and other relevant regulations, report to the people’s government for approval per the statutory approval authority, and pay the relevant fees. The occupation, requisition, or transfer of state-owned forest land must be approved by the competent provincial forestry department. 5.5

Nature Reserve Law

A nature reserve is an area of land, water, or sea where representative natural ecosystems, natural concentrations of rare and endangered species of wild flora and fauna, and natural relics of particular significance are located and where a specific area is set aside by law for special protection and management. Nature reserves preserve the integrity of natural ecosystems and the richness of biological species. The establishment of nature reserves helps to protect biodiversity, conserve soil and water, conserve water, protect and improve the ecological environment and maintain the ecological balance of the region. The essential characteristics of nature reserves are closed and compulsory protection and management. Under the existing conditions, mandatory management through the establishment of protected areas is also the best way to effectively protect crucial ecological function areas of national, regional, and watershed ecological security. China is establishing a nature reserve system with Chinese

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characteristics, with national parks as the mainstay, nature reserves as the foundation, and various nature parks as a supplement. 5.5.1 Major Legislation on Nature Reserves To strengthen the protection of nature reserves, China has issued the Measures for the Administration of Forest and Wildlife Type Nature Reserves (1985), the Regulations on Nature Reserves (issued in 1994, amended in 2011 and 2017), the Measures for the Administration of Aquatic Animal and Plant Nature Reserves (issued in 1997, amended in 2010, 2013, 2014, 2017 Revised, repealed in 2019), Measures for Supervision and Inspection of State-level Nature Reserves (issued in 2006, amended in 2017, 2019 and 2021), and Interim Measures for the Administration of Approval of Construction Facilities in State-level Nature Reserves (2018). In addition, the Environmental Protection Law, the Forestry Law, the Wildlife Protection Law, the Grassland Law, Wetland Protection Law, and the Yangtze River Protection Law also make provisions for the protection of nature reserves. The Regulations on Nature Reserves is the current fundamental law protecting nature reserves. 5.5.2 Main Legal Provisions for the Protection of Nature Reserves 1. Management institutions The State implements a management system combining comprehensive and sub-sectoral nature reserves management. The department in charge of the ecological environment under the State Council is responsible for the comprehensive management of nature reserves nationwide. The relevant administrative departments of the State Council, such as forestry and grassland, agriculture, geology and minerals, water conservancy, and marine affairs, are in charge of the relevant nature reserves within their respective areas of responsibility. The people’s governments of provinces, autonomous regions, and municipalities directly under the central government shall determine, in the light of local conditions, the establishment and responsibilities of the departments responsible for the management of nature reserves in local people’s governments at or above the county level. The administrative department in charge of the nature reserve shall set up a particular management agency in the nature reserve, staffed with professional and technical personnel, and be responsible for the specific management of the nature reserve.

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2. Management system

(1) Grading and zoning management system Nature reserves are divided into national-level and local-level nature reserves. Nature reserves of typical significance at home and abroad, significant international scientific impact, or exceptional scientific research value are classified as national nature reserves. Other nature reserves with typical significance or important scientific research value are classified as local-level nature reserves. Nature reserves can be divided into core, buffer, and experimental areas. Well-preserved ecosystems in their natural state and concentrations of rare and endangered flora and fauna in nature reserves shall be designated core areas. No unit or individual is allowed to enter. The periphery of the core area may be designated as a buffer zone of a particular area, where only scientific research and observation activities are allowed. The periphery of the buffer zone is designated as an experimental area, which is accessible for scientific experiments, teaching practice, study tours, tourism, and the domestication and breeding of rare and endangered wild animals and plants. If the people’s government that initially approved the establishment of a nature reserve deems it necessary, it may designate an outer protection zone of a particular area on the periphery of the nature reserve. (2) Approval system For establishing a national-level nature reserve, the people’s government of the province, autonomous region, or municipality directly under the Central Government where the nature reserve is located or the relevant administrative department of the State Council for nature conservation shall apply. After evaluation by the national-level nature reserve evaluation committee, the competent department of the State Council for ecology and environment shall coordinate and propose approval and submit it to the State Council for approval. For the establishment of a local nature reserve, the people’s government of the county, autonomous county, city, or autonomous prefecture where the nature reserve is located or the administrative department of the people’s government

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of the province, autonomous region or municipality directly under the Central Government concerned shall apply. After evaluation by the locallevel nature reserve evaluation committee, the competent department of ecological environment of the people’s government of the province, autonomous region, or municipality directly under the Central Government shall coordinate and propose approval and submit it to the people’s government of the province, autonomous region or municipality directly under the Central Government for approval, and report it to the competent department of ecological environment and the relevant administrative department of the State Council for the record. The people’s governments of the administrative regions concerned shall submit applications for establishing nature reserves straddling two or more administrative regions by consensus and approve them per the procedures set out in the two preceding paragraphs. Establishing a marine nature reserve shall be subject to the approval of the State Council. (3) Planning system The department in charge of the ecological environment under the State Council shall, in conjunction with the administrative department in charge of the nature reserve under the State Council, draw up a national development plan for the nature reserve based on a survey and evaluation of the state of the natural environment and natural resources of the country. The planning department of the State Council shall conduct a comprehensive balance and submit it to the State Council for approval and implementation. The nature reserve management agency or the administrative department in charge of the nature reserve shall organise the preparation of the construction plan of the nature reserve, incorporate it into the national, local, or departmental investment plan per the prescribed procedures, and organise its implementation. (4) System of treatment by a deadline Facilities already built within the experimental areas of nature reserves whose pollutant emissions exceed the national and local emission standards shall be treated within a limited period; If damage has occurred, remedial measures must be taken. Projects constructed in the peripheral protection zone of a nature reserve shall not damage the environmental

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quality of the nature reserve; If damage has occurred, remedial measures shall be taken within a limited period. (5) Pollution or damage accident reporting and handling system Units and individuals who cause or may cause pollution or damage to the nature reserve due to an accident or other sudden event must take immediate measures to deal with it and promptly inform the units and residents who may be in danger. They must also report to the nature reserve management agency, the local ecological environment department, and the nature reserve administrative department and accept investigation and treatment.

Index

A Agricultural land, 143, 147, 152–154, 158, 163–166 Air pollution, 109–111, 113–117, 125 B Basic principles of environmental law, 22 C Centralized urban sewage treatment system, 135 Characteristics, 13, 14, 22, 27–29 Cleaner production, 103, 108 Cleaner production and circular economy system, 53 Coastal Engineering Pollution, 173 Combined prevention and treatment principle Total control and approval system, 127 Components, 22 Construction land, 147, 152–154, 167, 168, 170, 171

Construction noise pollution prevention, 195

D Dispute resolution, 97

E Ecological civilization, 12 Ecological construction, 261 Ecological protection of natural resources, 231 Ecological safety, 231 Elements of Exemption, 83 Environmental accident reporting system, 65 Environmental administrative permit system, 43, 44 Environmental civil liability, 83, 85, 87, 91, 93 Environmental classification, 1, 4 Environmental Impact Assessment (EIA), 37, 40, 41, 43 Environmental issues, 4, 8

© China Renmin University Press 2023 K. Zhou et al., Environmental and Resource Protection Law, https://doi.org/10.1007/978-981-99-4448-4

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INDEX

Environmental law, 13–16, 18, 20, 22, 25, 26, 28–30, 33, 34 Environmental Legal Liability, 83 Environmental noise pollution, 195–200, 208, 209 Environmental noise pollution prevention, 197, 198, 200, 206, 208 Environmental Standards System, 49 Environmental tort, 83, 84, 87–91, 93, 95, 96, 98 Exclusion of Harm Compensation of Damages, 83

Marine Environmental Management, 173 Marine environmental pollution, 173, 174, 177 Marine Environmental Protection Legislation, 175 Measures to control pollution from motor vehicles and vessels, 109 Measures to prevent pollution from coal burning, 109 Measures to prevent pollution from the exhaust gas, dust, and foul odour, 114

G Groundwater, 127, 128, 136

N Natural disaster prevention and control, 235

I Illegal system for pollutant emission exceeding standards, 109 Industrial noise pollution prevention, 195

L Land-based sources of pollution, 183 Law on the protection of living resources, 231 Law on the protection of non-living resources, 231 Law on the protection of the environment in specific areas, 231 List of crucial soil pollution control units, 152 Living noise pollution prevention, 195

M Marine Dumping Pollution, 173 Marine ecological protection, 182, 184

O On-site inspections, 104 Oxygen-demanding substances pollution, 128

P Pathogenic pollution, 128 Pesticides contamination, 211 Phasing out outdated equipment and processes, 99 Plant nutrient pollution, 129 Pollutant discharge standards, 134 Pollution charging system, 109 Pollution from ships and related operations, 188 Pollution incident reporting, 105 Pollution prevention and control legislation, 102 Prevention of pollution transfer, 106 Principles of Liability, 83 Protection of Marine Areas, 190 Protection of Sea Islands, 192

INDEX

Protection of uncontaminated soil and unused land, 139 Purpose, 13–16, 24, 35 R Radioactive pollution, 127 Radioactive substances contamination, 211 Relationship between man and the natural environment, 1 S Scientific concept of development, 1 Sewage charging system, 61 Shipbreaking pollution, 190 Soil, 139–141, 143–147, 152–171 Soil environmental information sharing mechanism, 139 Soil environmental monitoring, 139 Soil pollution, 139–153, 155–159, 161–168, 170, 171 Soil pollution liability, 139 Soil pollution prevention and control, 140, 142–152, 156, 157, 170 Soil Pollution Prevention and Control Financial Measures, 139 Soil Pollution Prevention and Control Fund, 139 Soil pollution prevention and control law, 139, 143, 146–151, 153–157, 159, 165 Soil pollution prevention and control legislation, 142 Soil pollution prevention and control planning, 151 Soil pollution prevention and control regulatory system, 139 Soil risk control and remediation, 167 Solid waste contamination, 211

299

Sound environment standards, 200 Source protection system, 71 Supervision and management system for air pollution control in China, 114, 116 Surface water, 127 Suspended and sediment pollution, 127 Sustainable development, 6, 7, 9–11 System for designating protected areas for domestic drinking water sources, 136 T Thermal pollution, 130 The “three simultaneous” System, 37, 41, 42 Total emission control and permit system for air pollutants, 116 Toxic and hazardous substances, 211–214 Toxic chemicals, 211, 213, 214, 224–226, 228 Toxic chemicals contamination, 211 Toxic chemical substances pollution, 127 Traffic noise pollution prevention, 195 Types of environmental pollution, 100 V Values, 15, 16, 22, 35, 36 W Water environment quality standards, 127 Water pollution, 127–132, 134 Water resources protection and water pollution, 127