Environmental Law in China: THE Book.

I just finished reading Charles McElwee’s book on China’s environmental laws, entitled, Environmental Law in China: Mitigating Risk And Ensuring Compliance. This is an excellent book, written by the most qualified person I know to write it, as evidenced by Charles’ bio:

Charles R. McElwee II is the Program Officer for Climate Policy at ClimateWorks Foundation. He deals with Chinese environmental officials regularly, managing an extensive suite of grants that are devoted to making China more environmentally sustainable. Prior to this position, Mr. McElwee practiced environmental and energy law at Squire, Sanders & Dempsey L.L.P. for nearly 30 years, most recently in the Shanghai office. He represented a range of clients in the U.S. and China in a variety of matters, including environmental, energy, and import-export issues in the People’s Republic of China; environmental and energy issues related to stock and asset transactions; structuring carbon trade and NOx and SO2 allowance trade agreements; environmental due diligence; U.S. Natural Resource Damage review; Clean Water Act, Clean Air Act and Safe Drinking Water Act.

The book’s publisher, Oxford University Press, accurately describes the book as having achieved the following:

  • Lays out a detailed explanation and analysis of Chinese environmental law
  • Provides the most complete [English language] guide to date for businesses, particularly foreign-operated, to comply with both national and local Chinese environmental regulations
  • Discusses the possible legal ramifications, both civil and criminal, of companies’ failure to comply with Chinese law
  • Describes generally the relation between international environmental treaties and Chinese national law
  • Includes an overview of Chinese culture and its unique influence on the nature of the Chinese legal system

As I read this book, I kept thinking how China’s environmental laws are not too dissimilar from those in the United States. China greatly differs from the United States, however, in that there is little history to discuss by way of enforcement, either in the real world or in the courts. This means too much of the book is on laws as opposed to practice. Charles essentially had no choice because in many instances there is no practice about which to write.

My favorite parts of the book were when it dealt with enforcement. I particularly liked Charles’s writings on China’s criminal enforcement of its environmental laws:

When a large, well-publicized pollution accident occurs in China, those responsible are often criminally prosecuted. However, this is not a consistent practice as company officials at the facility that caused the notorious Songhua River spill in 2005 seem to have escaped criminal liability.

Criminal sanctions have not traditionally been imposed in less well-publicized pollution accidents.

Charles also did a fine job in subtly dealing with enforcement of China’s environmental disclosure laws:

Enterprises shall not refuse to disclose environmental information referred to in the above paragraph [relating to Article 20 of China’s Environmental Open Information Measures] under the excuse of confidentiality or trade secrets.

While these regulations are a giant step forward in terms of increasing the transparency and public awareness of environmental conditions and administrative efforts in China, public disclosure does not come easy to many Chinese agencies, including the environmental agencies, and problems in the implementation of these regulations have been encountered.

Charles pulls no punches in accurately describing how China treats foreign companies more strictly than their domestic counterparts:

Foreign-invested entities are likely to be among the first targets for increased enforcement attention.  Lack of enforcement frequently stems from a belief that local entities cannot afford the cost of environmentally compliant operations. Foreign-invested firms are often viewed as having the deepest pockets and thus the wherewithal to bring their operations into compliance with the law. In addition, there is a general perception in China that foreign companies are the worst offenders of China’s environmental laws. While this perception (at least as it applies to Western as opposed to other Asian companies operating in China) is almost certainly incorrect, it increases the scrutiny to which foreign entities are subject.

If you are interested in China’s environmental laws, I strongly recommend you buy Environmental Law in China.