Organization and procedure in environmental law enforcement: Sichuan in comparative perspective

China Information

Volumn 17, Issue 2, 2003, Pages 36-64

  Van Rooij, Benjamin ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

Author keywords

environmental protection; law; local governance

Indexed keywords

EID: 84992897617     PISSN: 0920203X     EISSN: None     Source Type: Journal    
DOI: 10.1177/0920203X0301700202     Document Type: Article

References (35)

1. For an analysis of the quality of Chinese environmental legislation see: W. P. Alford and B. L. Liebman, “Clean Air, Clean Processes? The Struggle over Air Pollution Law in the People's Republic of China,” Hastings Law Journal 52 (2001): 703-48; and B. Van Rooij, “The Enforceability of Chinese Water Pollution Regulations, What Room for Improvement?” China Perspectives, no. 43 (2002): 40-53. Also published in French: B. Van Rooij, “La Loi Peut-Elle Contrúler la Pollution des Eaux? De l'Applicabilité et des Améliora tions Possibles de la Réglementation Chinoise,” Perspectives Chinoises 72, no. 12 (2002): 43-57.
2. I have summarized the findings of these studies in an article. See B. van Rooij, “Implementing Chinese Environmental Law through Enforcement, the Shiwuxiao and Shuang Dabiao Campaigns,” in The Implementation of Law in the People's Republic of China, ed. J. Chen, Y. Li, and J. M. Otto (The Hague: Kluwer Law International, 2002), 149-78.
3. One notable exception is the use of the severest enforcement measure of closing a polluting unit or revoking its license. Contrary to what Articles 2 and 3 and Article 12, Section 2 of the 1999 SEPA Administrative Measures on Administrative Sanctions for Environmental Protection would lead us to believe, in practice the EPBs have no jurisdiction over the use of the severest sanctions of closing units or revoking their business permits. The local governments involved have jurisdiction over these decisions. In practice, Article 39 of the 1989 EP Law is thus interpreted. Interview with a SEPA official, Beijing, 17 December 2000.
4. A. Seidman and R. B. Seidman, State and Law in the Development Process (New York: St. Martin's Press, 1994), 129.
5. There are two exceptions. Firstly Sinkule and Ortolano, in chapter 8 of their book on the implementation of environmental policy in China, discuss the relationship between local EPBs and their subsidiaries, but not the internal structure of the EPB itself. See Sinkule and Ortolano, Implementing Environmental Policy. Secondly, Yao has studied the fact that EP agents lack knowledge about EP law and legal procedure by looking at the individual agents. See Yao, “Huanjing xingzheng zhifa zhong cunzaide wenti he duice.”
6. Sinkule and Ortolano describe the different types of danwei (units). They distinguish between xingzheng danwei (administrative units), these are what are called “departments” here, and zhishu danwei (subsidiary units). The latter is further sub-categorized as shiye danwei (service units) and qiye danwei (business units). See Sinkule and Ortolano, Implementing Environmental Policy, 164.
7. Sinkule and Ortolano, Implementing Environmental Policy, 180; Jahiel, “The Contradictory Impact of Reform,” 96-99; and Ma and Ortolano, Environmental Regulation, 62. A SEPA agent has told me that most EPBs are for 70% dependent on discharge fees, interview on 10 December 2000.
8. Pollution Excessive Discharge Fees are fees that polluters must pay when they exceed discharge standards.
9. SEPA, Zhongguo huanjing tongji nianbao 2000 (China environmental statistical report 2000) (Beijing: SEPA, 2001).
10. The information in this section, except indicated otherwise, is based on an interview with the head of the SEPB Planning and Finance Department, 5 November 2001.
11. Sinkule and Ortolano also found this with the Foshan EPB. Sinkule and Ortolano, Implementing Environmental Policy, 169-70.
12. A third and minor source of income comes from resources that are provided for special projects by central level state departments. The most important of these are funds provided by SEPA for special projects. The amount of centrally provided resources varies yearly and depends on the sort of projects that are carried out. It can vary from several million renminbi to next to nothing. 1 7 Based on interviews with staff of two Sichuan city EPBs and three Sichuan city-district EPBs during the summer of 2002.
13. Based on an interview with a SEPA official, December 2000, Beijing.
14. The official goal of protecting the environment may be replaced by a real goal of collecting sufficient fees to meet the organization's costs, as it could not, in fact, operate without the fees. For the term goal displacement see Merton, “Bureaucratic Structure and Personality,” 365.
15. This has also been indicated by Jahiel. See Jahiel, “The Contradictory Impact of Reform,” 93-99.
16. Interview with the head of the Policy and Law Department SEPB, 31 October 2001.
17. Based on interviews with several city and city-district EPBs in Sichuan, summer of 2002.
18. All data presented in this paragraph are based on the 2000 China Environmental Statistical Report.
19. Interviews with the head of the Policy and Law Department SEPB, 31 October, 3 December, and 15 December 2001.
20. During my interviews, the informants emphasized that this permit was necessary because it is prescribed in the Administrative Sanctions Law. This law does indeed state that the personnel of organs authorized to issue administrative sanctions must be knowledgeable with respect to the relevant laws and regulations (Art. 19). This law further states that law enforcement agents must present their enforcement identifications (Arts. 34 and 37). See also Arts. 19 and 22 of the SEPA 1998 EP Administrative Sanctions Measures. More detailed rules on this are provided in the NEPA 1992 Measures on the Label of EP Control and Enforcement. These provisions do not prescribe examination procedures for obtaining law enforcement permits.
21. All based on interviews with sub-provincial EPB staff in Sichuan, summer of 2002.
22. The information in this paragraph, except otherwise indicated, is based on an interview with the head of the Personnel Affairs Department SEPB, 12 November 2001.
23. For more information on the Chinese civil service system see: J. P. Bums, “The Civil Service System of the People's Republic of China” (Paper presented at the Civil Service Systems in Comparative Perspective, Bloomington, Indiana, 5-8 April 1997); and J. P. Bums, “Changing Environmental Impacts on Civil Service Systems: The Cases of China and Hong Kong,” in Handbook of Comparative Public Administration in the Asia-Pacific Basin, ed. H. Wong and H. S. Chan (New York: Marcel Dekker, Inc., 1999), 179-219.
24. Salaries of Public Service entities are higher than those of EPB staff.
25. B. M. Hutter, Compliance: Regulation and Environment (Oxford: Clarendon Press, 1997), 105-6.
26. During my fieldwork several inspection agents told me how difficult their job was. Based on interviews in Sichuan with inspection staff during the summer of 2002.
27. What agents have told me they do is actually very much in accordance with what the law prescribes they should do. The law also distinguishes between the simple and the normal procedure. Because I have not yet been able to check what they actually do, I cannot compare what they do with what they should do. Therefore I here mainly describe what they told me they do. For a summary of legal provisions related to EP law enforcement procedure see B. van Rooij, “Implementing Chinese Environmental Law.”
28. See SEPB, Huanbao shiyong fagui shouce (Handbook of practical laws and regulations for environmental protection) (Chengdu: SEPB, 2000), 542, for an example of such a form.
29. Based on an interview with a vice-director of a smaller city-level EPB in Sichuan, summer of 2002.
30. An exception is made during EP law enforcement campaigns. For more on these campaigns see van Rooij, “Implementing Chinese Environmental Law” and B. van Rooij, “Deciding on Enforcement, a Theoretical Study of Why Enforcement Agents in Developing Countries Initiate Enforcement Actions upon Complaints of Violations of EP Law, “ in Environmental Disputes and Enforcement of Environmental Law in Indonesia, ed. A. Bedner (forthcoming).
31. Based on an interview with a vice-director of a smaller city-level EPB in Sichuan, summer of 2002.
32. There are three case studies on the enforcement responsibility system, in Anhui, Wuhan and Nanjing. See S. Ying and S. Yuan, eds., Zou xiang fazhi zhengfu, yifa zingzheng lilun yanjiu yu shizheng diaocha (Toward a government by law, theoretical studies and empirical research on the administrative rule of law) (Beijing: Falü chubanshe, 2001).
33. Based on interviews with SEPA and Guilin EPB staff, autumn 2002.
34. Based on interviews with SEPB officials, summer 2002.
35. According to Klitgaard there is a high chance of corruption when officials have: a monopoly power over goods and services, discretion in the allocation of these goods and services, and little accountability for their actions. See R. Klitgaard, Controlling Corruption (Berkeley: University of California Press, 1988), 74, also see Seidman and Seidman, State and Law, 161-62.