enforcement efforts in 2014, the quality of the country’s environment has been gradually improving. At the same time, however, many regulated businesses are finding it difficult to comply with the increasingly stringent local environmental standards imposed by local regulators. Many of the businesses argue that most of the local standards are recommendatory in nature but that local regulators tend to treat them as if they were mandatory. As it turns out, their argument may be right in many circumstances.
Local Environmental Standards Are Mandatory in Limited Situations
Like many other countries in the world, China’s environmental protection system is built on top of a network of environmental standards that pertain to environmental quality, pollutant emissions, monitoring practices, environmental baselines, and environmental management. Whether the standards apply nationally or locally depends on who issues them: the ministries of the central government issue national environmental standards, while the provincial governments issue local environmental standards.
Under China’s Standardization Law, the general rule is that only national standards may be mandatory and that all local standards should be recommendatory. However, an exception to the general rule allows otherwise if specified in a statute made by the national legislature, an administrative regulation issued by the State Council through rulemaking processes, or a State Council decision. That is to say, a statute, administrative regulation, or a State Council decision could make a local standard mandatory.
In practice, the exception only applies in very limited circumstances because most laws or regulations are silent as to whether a local environmental standard is mandatory. One example where the exception does apply is the Soil Pollution Prevention and Control Law that came effect in January 2019. Under Article 12 of that statute, soil pollution risk management and control standards are mandatory, and a provincial government is authorized to make a local soil pollution risk management and control standard in certain circumstances. That provision effectively alleviates the status of recommended local standards to that of mandatory national standards. But beside the soil pollution law, very few, if any, other statutes or regulations explicitly recognize a local standard as mandatory.
Local Standards Treated as Mandatory Without a Clear Legal Basis
Local environmental protection bureaus may interpret local environmental standards as mandatory even when that interpretation is not supported by the Standardization Law. They argue that certain environmental statutes imply the mandatory nature of these local standards. But because no statute, administrative regulation, or State Council decision explicitly provides that these local environmental standards are mandatory, the validity of the local governments’ interpretation in these situations is doubtful. Some examples include:
- Maritime Environmental Protection Law (as amended in 2017): Article 10 of the Maritime Environmental Protection Law allows a provincial government to make local maritime environmental quality standards for matters not provided in the national maritime environmental quality standards. The statute also provides that both the national and local maritime environmental quality standards serve as the basis for developing a local government’s work plan. Though the statute is silent on whether the local maritime environmental quality standards could be mandatory, some provinces interpret this provision as giving the local maritime environmental quality standards equal status with their national counterparts.
- Water Pollution Prevention and Control Law (as amended in 2017): According to Article 14 of the Water Pollution Prevention and Control Law, local water pollutant discharge standards shall be enforced if the discharge is to water bodies for which local water pollutant discharge standards are in place. Because the term “shall” is used here, some provinces interpret this provision as obligating local governments to apply local standards. Again, this statute does not explicitly make the local water pollution discharge standards mandatory.
- Air Pollution Prevention and Control Law (as amended in 2018): Articles 8 and 9 of the Air Pollution Prevention and Control Law provide that either the State Council’s department on environmental protection (i.e., the Ministry of Ecology and Environment (MEE)) or a provincial government can make atmospheric environmental quality standards and air pollutant discharge standards. The statutory language seems to give equal weight to the national and local standards. Some provinces therefore interpret these provisions as obligating local governments to apply local air pollutant discharge standards along with national standards.
Despite the uncertainty surrounding the mandatory versus recommendatory nature of local environmental standards, recent rulemaking initiatives suggest we can expect to see more clarity on the issue. In the MEE’s draft Administrative Measures on Ecological and Environmental Standards (public consultation draft) published in October 2019, the Ministry appears to have taken notice of the issue. In it, the MEE proposed that all local environmental quality and pollutant discharge standards must be based explicitly on statutes or administrative regulations if the provincial governments intend for them to be mandatory. This is narrower than the general exception to the Standardization Law, as State Council decisions would not serve as a basis for making a local standard mandatory.
Regardless of whether one prefers local standards be mandatory as opposed to just recommendatory, it is important there be more certainty on the issue. In the end, having more clarity on the extent to which local standards are mandatory will allow for more predictability and transparency in China’s environmental regulatory system.
Editor’s note: this article originally appeared in the Environmental Law Institute’s Vibrant Environment blog
Zhuoshi Liu is a Staff Attorney at ELI and Director of the China Program. He focuses on projects aiming at building the capacity of public interest groups in China to engage in public interest environmental litigation. Prior to joining ELI, he worked for the Texas State Office of Administrative Hearings and Texas House of Representatives on environmental law issues. He also has years of experience in private practice. Zhuoshi holds a JD from The University of Texas School of Law, an LLM in International Law from Sun Yat-sen University School of Law, and an LLB from Tsinghua University School of Law.