Beijing air pollution

Beijing to get powers to shut factories and punish officials in smog battle

Amendments will make it easier for authorities to shut down factories and protect vulnerable areas, say advisers helping to draft the proposals

PUBLISHED : Tuesday, 15 April, 2014, 11:17am
UPDATED : Wednesday, 16 April, 2014, 9:00am

The government is set to pass law changes that will give it more powers to shut polluting factories, punish officials and place protected regions off-limits to industrial development, scholars with knowledge of the situation said.

Long-awaited amendments to the 1989 Environmental Protection Law are expected to be finalised later this year, giving the Ministry of Environmental Protection greater authority to take on polluters.

While some details of the fourth draft were still under discussion, it had been agreed that the principle of prioritising the environment above the economy would be enshrined in law, according to scholars who have been involved in the process. The fourth draft is due to be completed within weeks.

The first changes to the legislation in 25 years will give legal backing to Beijing's newly declared war on pollution and formalise a pledge made last year to abandon a decades-old growth-at-all-costs economic model that has spoiled much of the nation's water, skies and soil.

Cao Mingde, a law professor at the China University of Political Science and Law, who was involved in the drafting process, cautioned that some of the details of the measures could be removed as a result of bureaucratic horse trading.

The environment ministry has called for the law to spell out how new powers can be implemented in practice, but the National Development and Reform Commission, the country's top economic planning agency, prefers principles that are broader and more flexible.

"There is a usual practice when everyone is unable to come to a complete agreement - we first put an idea into the law and then draw up detailed administrative rules later," Cao said.

Local authorities' dependence on the taxes and employment provided by polluting industries is reflected by the priorities set out in the nation's growth-focused legal code, said Wang Canfa, an environment law professor who runs the Centre for Pollution Victims in China and who also took part in drafting the amendments.

Watch: A view of Beijing's smog from atop the Forbidden City

The environment ministry did not respond to a request for comment on its role in the drafting process and the specific content of the new amendments.

In the absence of legally enshrined powers, the environment ministry has often made do with one-off national inspection campaigns to name and shame offenders, as well as ad hoc arrangements with local courts and police authorities to make sure punishments are imposed and repeat offenders shut down. It has also stretched existing laws to its advantage.

Last year, it began to use its powers of approval over environmental impact assessments, which are mandatory for all new industrial projects, to force powerful industrial firms such as Sinopec and the China National Petroleum Corporation to cut emissions at some of their plants. It threatened to veto all new approvals until the firms met their targets. The law changes would give the ministry legal authority to take stronger punitive action.

"The environment ministry could only impose fines and management deadlines," Cao said. "Now we can close and confiscate them. It's an important right." It will also set up a more comprehensive range of punishments, putting an end to a system of fines that allowed enterprises to continue polluting once they had paid a one-off fee normally much lower than the cost of compliance.

Cao said the final draft was also likely to impose an "ecological red line" that will declare certain protected regions off-limits to polluting industry, though detailed definitions are likely to come later.

Criminal penalties will also be imposed on those found guilty of trying to evade pollution monitoring systems.

"The provisions on transparency are probably the most positive step forward. These include the requirement that key polluters disclose real-time pollution data," said Alex Wang, expert on the environmental law, who is based at UCLA in the United States.