From December 23 to 28, the 6th meeting of the 12th National People's Congress Standing Committee will be held in Beijing. The Environmental Protection Law (hereinafter referred to as the Environmental Protection Law) was not included in the scope of the meeting.
According to the usual practice, the Standing Committee of the National People's Congress at the end of February next year will mainly prepare for the two sessions in March and will not consider the legal bill. This means that the review of the revision of the Environmental Protection Law will be considered at the first meeting of the Standing Committee of the National People's Congress in April next year. An official of the Ministry of Environmental Protection also confirmed to reporters that it will continue to deliberate at the Standing Committee of the National People's Congress in April next year. He also said that the fourth review will be conducted in accordance with the version after the third trial.
In the draft for this review, the environmental protection department can seal the enforcement power of polluting enterprises. Previously, the environmental protection department only had the power to punish and order rectification within a time limit.
Comprehensive revision
The revision of the Environmental Protection Law has affected the hearts of many people. Due to the high-level emphasis on ecological civilization, there has been a view that the amendments to the Environmental Protection Law are likely to be considered at the end of this year.
For the time being not included in the agenda, the aforementioned Ministry of Environmental Protection officials said that the schedule was scheduled for April next year. However, some scholars believe that since the Fifth Session of the 12th National People's Congress decided to change the Environmental Protection Law from an amendment to a comprehensive revision, the revised thinking and the previous minor repairs have undergone major changes, plus the 18th session. The third session of the Third Plenary Session on ecological civilization and environmental protection, the six meetings from the five meetings only two months, it is difficult to complete the work, too late may also be the reason for its not included in the agenda.
The amendment of the law refers to the modification of some parts of the law by the statutory authority, which is partial or individual modification. The revision of the law refers to the overall modification of the law by the statutory authority as a whole.
The amendments to the law usually propose draft amendments, and the deliberations of the deliberative organs are conducted on the draft amendments, and the unmodified parts are not considered. The revision of the law usually proposes a comprehensive draft revision, and the deliberation of the review body is directed at the entire content of the draft text, rather than the review of the revised content.
The third-instance version of the "Environmental Protection Law" amendments provide principles for increasing financial investment in environmental protection, establishing a survey system for soil environment, monitoring, evaluation and restoration, and increasing the enforcement power of environmental protection departments, and stipulating environmental protection administration at or above the county level. The competent department may seize and detain the facilities and equipment of enterprises and institutions in accordance with the law. Previously, environmental protection departments at all levels did not have the power to seal up polluting enterprises.
In addition, the third review draft also clarified that the institutions commissioned to provide technical services for the environmental impact assessment of construction projects were fraudulent in the environmental impact assessment work, resulting in serious misrepresentation of the environmental impact assessment report and environmental pollution and ecological damage caused by the construction project. Responsibility shall also be jointly and severally liable with the project construction unit.
However, in the view of Wang Wei, director of the Institute of Environmental Resources Law at Shanghai Jiaotong University [microblogging] law school, the biggest feature of the third review draft is to strengthen the regulation of government behavior, basically embodying the idea of ​​"complete revision". The third review draft stipulates that the relevant departments of the State Council and the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government should formulate economic and technological policies, and should fully consider the impact on the environment, listen to the opinions of relevant parties and experts, and achieve scientific decision-making.
Wang Wei believes that this article puts forward government policies that regulate and restrict the environment, but it is also more difficult and difficult to coordinate because it involves government actions. In addition, what behaviors need to be constrained between central government departments and local government departments has not been well studied.
Another official of the Ministry of Environmental Protection said that at the third trial meeting at the end of October, the members of the meeting put forward a lot of suggestions. Previously, the amendments to the Environmental Protection Law had twice sought public opinions. The number of people interviewed by the reporter close to the Ministry of Environmental Protection said that it is uncertain whether the public will be consulted after the third trial, but it should be consulted with relevant departments. The aforementioned Ministry of Environmental Protection official said that the third review draft will be revised on the basis of these opinions, and on this basis, the fourth trial will be held in April next year.
Multi-method coordination
"Environmental protection is still closely related to economic development. How to regulate government and corporate behavior is not an easy task. It is not just a matter of managing pollution." Wang Wei said.
Earlier, an official of the National People's Congress Environment and Resources Committee said that the amendments to the Environmental Protection Law should be adapted to the development stage of China. If you follow the ideal law, you may have to pay the price of giving up many industries and causing many people to lose their jobs. For those who are laid off, eating is more important.
An official of the Ministry of Environmental Protection said that everyone wants to change the "Environmental Protection Law", but the revision of the law can only be broken through the existing framework. The existing framework involves too many benefits, especially national development strategy planning. The official said, "A lot of pollution projects are approved. This is not a question of whether to go through the EIA process, but a planning issue."
The environmental pressure brought about by the rapid development of China's economy is increasing. The current "Environmental Protection Law", which has been in operation for more than 20 years, has been rated as the worst performing law in contemporary China by many environmental scholars. After the enactment and implementation of the "Environmental Protection Law", the Standing Committee of the National People's Congress has successively formulated nearly 30 separate laws and related laws on environmental and resource protection, such as the "Water Pollution Prevention and Control Law", "Air Pollution Prevention and Control Law" and "Forest Law". Mineral Resources Law, Land Administration Law, Marine Environmental Protection Law, etc.
Yang Zhaoxia, deputy director of the Center for Ecological Law Research at Beijing Forestry University, believes that from the perspective of system composition, the current environmental basic law is lacking, and the environmental resources legislation is headless and the system is messy, so that the conflicts of environmental resources legislation are everywhere.
Cai Shouqiu, president of the Institute of Environmental Resources Law of the Chinese Law Society and professor of Wuhan University [microblogging], believes that as the core law in the environmental protection legal system, the revision direction of the "Environmental Protection Law" should be upgraded to reflect "environmental protection is the basic national policy". The Basic Law governs all environmental single-line laws. Therefore, the law is based on the principle of stipulation, and it is not appropriate to stipulate over-refinement clauses.
Previously, the first-instance draft and the second-instance draft of the amendments to the Environmental Protection Law were revised in accordance with the "small repairs and small supplements" proposed by the leaders of the National People's Congress Environment and Resources Committee. The reporter learned that the Ministry of Environmental Protection and the Environmental Management Committee also have opinions on this idea.
“The version of the third trial absorbs these different opinions, including what we have suggested to constrain the government behavior.†Wang Wei said that there are many institutional and institutional issues involved in constraining government behavior, which are difficult to coordinate and resolve.
In Wang Wei’s view, to restrict government behavior, the relevant provisions of the Administrative Litigation Law must be revised. The revision of the law will be considered at the six meetings at the end of this month.
"The Administrative Litigation Law is a civil sergeant. The current Administrative Litigation Law stipulates that the people's court can only accept litigation against specific administrative actions. However, many environmental problems are caused by abstract administrative actions, such as the government's industrial development plan. Investing in investment decisions, etc.. Wang Wei said that these plans may pollute the environment. For example, the PX projects that triggered mass incidents last year and this year are all planned. "These plans can be regarded as specific behaviors. The current Administrative Procedure Law does not stipulate."
From the perspective of legal hierarchy, the Administrative Procedure Law and the Civil Procedure Law are all basic laws, which are formulated by the National People's Congress. The Environmental Protection Law is a general law, which is formulated by the Standing Committee of the National People's Congress and ranks in the Basic Law. under.
"The difficulty of public interest litigation is difficult in the Administrative Litigation Law. The relevant provisions of this law are not changed. It is very difficult for the Environmental Protection Law to amend this content. The clauses that restrict government behavior are also easy to implement. Wang Wei said.
In addition, Wang Wei believes that the provisions of the third-instance version for the qualifications of environmental public interest litigation should be improved. At present, domestic research on this issue is not enough.
In July this year, Li Jingyun, an official of the Policy and Regulation Department of the Ministry of Environmental Protection, published a paper entitled “Environmental Public Interest Litigation in the United States†in the China Environmental News. He introduced that the definition of plaintiff qualification in the United States is “only†whose interests are affected or affected. The only possible citizen is eligible to file a lawsuit in the court. The plaintiff must meet the three conditions of actual damage, causality and compensability. The article stated that the US article did not significantly increase the number of environmental citizen litigation cases. However, it has become an important supplement to environmental law enforcement and an effective mechanism for the environmental protection department and the public to jointly combat environmental violations.
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