Does China need an Environmental Health Law?

The victims of pollution need an environmental health law to secure their rights to compensation, argues Lu Zhongmei

A member of one of China’s top legislative bodies has called for the introduction of an environmental health law.

Lu Zhongmei, a National People’s Congress delegate, and one of the authors of the China Environmental Development Report (2014), which is compiled annually by civil society group Friends of Nature, said that the lack of legislation has meant that those who have been sickened by pollution could not get compensation and treatment.

In the report, Lu Zhongmei said that there is little mention of ‘safeguarding human health’ in China’s environmental protection laws – only six of the 30 laws include the phrase. Furthermore they all lack specific rules for their implementation.

She believes the ultimate aim of an Environmental Protection Law must be to protect the lives and health of the public by managing risks, rather than providing the after-the-fact remedies and pollution caps of traditional environmental protection laws. Therefore legislation should be put in place providing for the prevention and management of risk, and for communication with the public on these matters.

She proposes an Environmental Health Law which will make explicit the government’s duty to protect both health and the environment; require the assessment of health risks during environmental impact studies for both regional development plans and individual projects; and providing rules on compensation for harm to health: the scope of such compensation, the governing body for such claims, and how harm to health will be assessed.

An impractical idea?

But according to some environmental law experts, Lu Zhongmei’s “call for legislation” isn’t practical.

The deputy director of the Resources and Environmental Policy Research Institute at the State Council’s Development Research Centre, Chang Jiwen, said: "China’s legislative resources are under a lot of strain and there are still laws waiting to be amended. It’s not reasonable to enact an Environmental Health Law."

He said that the first thing that those who are "calling for legislation" need to do is get a clear understanding of the connection between the environment and health. Irrespective of whether it is the Air Pollution Control Law, the Water Pollution Control Law or the Environmental Protection Law, the goal of environmental protection is to protect people and living things, and so there is no need to set up a special environmental health law.

Xia Jun, an environmental lawyer in China, agrees with Chang Jiwen’s view that there is "no need to legislate". He said that main issue in protecting the environment and health lies in the implementation of existing laws and in fixing those institutional and procedural obstacles encountered during enforcement.

However, Xia Jun believes that the Environmental Protection Law covers the entire ecosystem including people and not just people, because sometimes what is beneficial to people is not necessarily beneficial to nature.

Cao Mingde, a Professor of Law at China University of Political Science and Law, professor of law, said that the problem of compensation can be solved if existing laws are implemented properly. For example, the Air Pollution Control Law stipulates that those companies producing hazardous pollution are responsible for eliminating the danger and compensating those companies or individuals that have directly suffered from the pollution. In the event of a dispute over liability and the amount of compensation, the parties may directly bring a lawsuit to the People’s Court.

But Lu’s idea has some supporters. Duan Xiaoli, an associate professor at the Chinese Research Academy of Environmental Sciences, believes that faced with the reality of recurring serious environmental incidents, "the main laws need to be refined."

She added that although Article 39 in the new Environmental Protection Law refers to health issues, they still need to draw up an Environmental Health Sub-Law to support its implementation and refinement. It’s exactly the same as needing to draw up an Air Pollution Control Law while having an Environmental Protection Law.

According to Liu Jianqiang, the chief editor of the China Environmental Development Report (and chinadialogue’s Beijing editor), the large number of cases disclosed in the report show that "victims of pollution in China rarely secure legal relief. This is both a problem with Chinese law, and even more so a problem with enforcement".