Trends of Environmental Criminal Enforcement in China

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Badge of the Supreme People’s Court of China Photo Source: Wikimedia Commons

 

In June, 2015, China’s Environmental and Resources Law Division in the Supreme People’s Court (SPC) said the courts opened 1188 environment pollution crime cases in 2014, which is 7.9 times more than cases filed in 2013.

What’s environmental crime? From the eyes of practitioners in the United States, environmental crime refers to the “intentional, knowing, reckless, or criminally negligent violation of federal or state environmental laws and regulations”. But in China, environmental crimes include both environmental pollution crimes and crimes of damaging natural resources.  Environmental pollution crime refers not only to criminally violations of certain environmental laws, but also to crime of dereliction of environmental supervision committed by government officials. The number of cases mentioned above SPC only referred to criminal enforcement of China’s pollution laws. This number shows a significant increase and signals a landscape change in environmental criminal enforcement in China.

Different from the U.S., China’s Pollution Control Laws do not contain provisions on criminal enforcement against individuals or entities for violations.  The laws only generally provide that if the acts committed constitute crimes, they should be investigated for criminal liability in accordance with the Criminal Code. China’s 1997 Criminal Code first introduced provisions that define environmental crimes and provide for specific criminal sanctions.  However, the scope of regulatory violations the provisions cover is quite limited. They only cover violations of provisions in the pollution control laws that involve discharge, dumpling, or disposal of radioactive wastes, wastes containing pathogen of infectious diseases, toxic substances, or other hazardous waste on the land or into the water bodies or the atmosphere (Criminal Code Art 338). For acts defined in Criminal Code Art 338, harm is a key element for criminal liability. Only if these violations causing major environmental pollution accidents that lead to heavy losses to public and private property or serious consequences of personal deaths and injuries, violators may be subjected to prosecution.

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Zijinshan Gold and Copper Mine, part of the Zijin Mining Group, China’s biggest gold producer and its directors were criminally prosecuted after acidic waste water leaked from the plant in 2011. Photo Source: AP/GETTY Images.

For the past fifteen years (1997-2011), “crime of major environmental pollution accidents” is the only available criminal enforcement tool for China’s pollution control law against violations at the facility level. Due to lack of specificity as to the threshold and elements for the application of this criminal charge, the rate of actual prosecution of the environmental crime is extremely low.  Between 1997 to 2003, less than 20 out of 387 reported serious pollution accidents involved criminal prosecution.

According to Ministry of Environmental Protection (MEP) (in Chinese), only 27 such cases were prosecuted for the six years of time period from 2006 to 2010. The typical punishment meted out instead of criminal penalties is usually administrative sanctions, in which fines are the most frequently used.  In 2010, Environmental Protection Bureaus (EPBs) across China issued 116,820 administrative enforcement orders to punish violations, while only 11 major environmental pollution accident criminal cases concluded in courts.

SPC’s research director  Hu Yunteng  attributed few environmental crime prosecuted to a number of reasons, which include the difficulties to obtain evidence and assess harm in environmental accidents, the threshold for prosecution is too high and the crimes are related to economic development in the local region.

The dramatic changes in environmental criminal enforcement,  came from the Eight Amendments to the Criminal Code and SPC’s Judicial Interpretations on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution, which was promulgated On June 17, 2013.

For the first time, this Judicial Interpretation lists 14 circumstances that should be considered as “serious environment pollution” and the first 5 criteria doesn’t require specific harms or injuries caused by the violation, the illegal conducts committed alone are sufficient for conviction, which include the following:

  • Discharging, dumping or disposing of wastes containing radioactive substances or infectious disease pathogens, or toxic substances in the Grade I reserves of drinking water source and the core area of nature reserves; or
  • Illegally discharging, dumping or disposing of three tons or more of hazardous wastes; or
  • Illegally discharging pollutants containing heavy metals, persistent organic pollutants and other pollutions that seriously harm the environment and damage human health, which exceed three times of the national or provincial standards for the discharge of pollutants; or
  • Discharging, dumping or disposing of radioactive wastes, wastes containing infectious disease pathogens, or toxic substances through secret pipes or seepage wells, pits or karst caves; or
  • Getting two or more administrative penalties due to violations of discharging, dumping or disposing of radioactive wastes, wastes containing infectious disease pathogens or toxic substances within two years, but recommitting the violations.

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