From the perspective of law enforcement, from supervisors and enterprises to the supervision of both enterprises and supervising government, to innovative measures such as daily penalties, seizures and seizures, environmental law enforcement has entered a new stage. At present, the environmental situation in China is still severe, and outstanding environmental problems such as the atmosphere, water and soil have not yet been effectively solved, and it is extremely difficult to fundamentally improve the quality of the environment. The implementation of the new "Environmental Protection Law" for the past year has seen a marked improvement in the softening of environmental law enforcement. However, in the field of environmental protection, phenomena such as non-compliance with laws, lax enforcement, and lack of law enforcement still exist, and the ability to use legal thinking and the rule of law to solve problems is still lacking.
The task force of the “Research on the Rule of Law and Ecological Civilization Construction†set up by the China International Cooperation Committee for Environment and Development (hereinafter referred to as the “CCICEDâ€) conducted an objective assessment of the status quo of environmental law enforcement in China, and put forward practical suggestions in light of actual conditions.
Improve the environmental supervision system and promote the implementation of "the responsibility of the party and the government, and the responsibility of one post"
The current environmental management system in our country has played an important role in preventing and controlling environmental pollution, suppressing ecological destruction, and safeguarding ecological security. However, in reality, we have also found some issues of inadequate co-ordination.
“What is the unified supervision and management? What is the difference between unified management and division of labor? Does the unified supervision include the supervision of the environmental protection administrative department on the performance of the duties of other departments? There is no further definition of the law.†Chinese leader of the CCICED Task Force Sun Youhai, dean of the Law School of Tianjin University, said that the unclear definition of these issues in the law has caused continuous conflicts between regional management and vertical management in China, and has become an important factor in restricting environmental supervision.
“That is to say, when the relevant departments have interactions and disputes due to environmental pollution, ecological damage, and resource exploitation and utilization, the administrative department of environmental protection is equivalent to the administrative department and water resources, land and resources, agriculture, forestry, and oceans. If it is not affiliated, then even if the environmental protection administrative departments want to play a role of unified guidance, coordination, and supervision, they may not necessarily be recognized by other departments.†Sun Youhai further explained that this not only affects the efficiency of the environmental protection department's overall supervision, but also hinders the environment and The development of the overall work of the protection of natural resources undermines the credibility of the government.
"This shows that China's current environmental management system can not effectively achieve the legislative objectives of China's environmental laws and regulations." Sun Youhai said.
Practice has proved that at the local level, environmental protection departments alone can't solve environmental problems and often cause local environmental protection authorities to fall into law enforcement difficulties. One of the reasons for this law enforcement dilemma is the conflict of interest between the departments. The Task Force believes that the cross-cutting powers and gaps of relevant functional departments have become one of the biggest obstacles to the implementation of environmental laws and regulations.
How to solve this problem? The task group proposed to formulate a unified "Regulations on Environmental Administrative Organizations" to clearly distinguish the powers and responsibilities of the administrative department of environmental protection and other relevant departments, and explain the difference between unified supervision and division of labor in the "Environment Protection Law." At the same time, optimize the institutional division of the central and local governments in the field of environmental supervision, and reassess the effectiveness of decentralization in light of the state supervision and local supervision, higher-level assessment, and territorial responsibility, conduct a new round of environmental protection reform, and decentralize administrative licensing and supervision. The power to grant intermediary organizations the right to provide technical services.
In light of the problem of watershed pollution and cross-regional pollution, the research team also proposed setting up a higher-level environmental management coordination agency to coordinate and manage pollution in river basins and across regions.
It is understood that local party committees and governments have different responsibilities and are another important reason that hinders environmental law enforcement. Rethinking the environmental pollution incidents that occurred, party committee leaders, especially party committee members, are hard to be held responsible for accountability, and government officials are often responsible for accountability. The reason is that there is no clear system and regulations that limit what the party committee should do or do not do in environmental protection.
The task force recommends that in order to implement “responsibility for the party and government, responsibility for one post, and responsibility for dereliction of duty,†the Ministry of Environmental Protection shall consult the Central Organization Department according to the “Measures for Responsibility of Responsibility for Party-Government Leading Cadres on Ecological Environment Damage (Trial)â€. The Central Commission for Discipline Inspection stipulates procedural provisions for appointments, accountability, and rectification.
"For example, the interview and the responsibility of local party committee secretaries, who will start, who will cooperate, who will investigate and collect evidence, and who will impose sanctions, will need further clarification," Sun Youhai said.
Ensure that environmental protection departments independently exercise their functions and powers in accordance with the law and prevent local governments from improperly interfering with the implementation of the new "Environmental Protection Law." Environmental supervision is more stringent and more practical, local government responsibility awareness, bottom line awareness of polluting enterprises, regulatory awareness of environmental protection agencies, and the public Participation awareness has been improved to varying degrees.
Judging from the implementation of the new "Environmental Protection Law," the task force has divided the provinces and cities across the country into three levels. The first level is that the environmental quality is good, the local government and relevant departments consciously perform their duties, and actively implement environmental laws and regulations; the second level is the general environmental quality, the local government and relevant departments perform their duties in accordance with the law, it can be said is not It is active and not passive; the third level is poor environmental quality, and the central government constantly monitors and supervises it.
At present, the provinces and cities that are still at the third level are not only the areas where China's economy is relatively underdeveloped, but also the areas where environmental laws and regulations are most difficult to implement. The driving force for the implementation of environmental laws and regulations in these places is mainly from the pressure from higher levels of government and the central government. Environmental law enforcement has not yet reached the level of active enforcement, self-enforcement, and law enforcement, and it still needs the attention and supervision of the central government to a great extent. In reality, environmental protection departments often cannot and do not dare to enforce the law strictly, mainly because of the intervention of local governments and local party committees.
The adoption and effective implementation of the new "Environmental Protection Law" not only gives local environmental protection agencies greater enforcement power, but also poses severe challenges. Without strict enforcement, the public will be dissatisfied with the problem of environmental pollution; if it is strictly enforced, it will face obstacles from local governments and local party committees, which will cause the environmental protection department to suffer from "pinch gas".
“Strict law enforcement may affect the growth of local employment and fiscal revenue, and thus affect the results of the evaluation of officers and political prospects. Although the environmental protection department has certain independence in law enforcement, its personnel appointment is still in the hands of local party committees and governments. Sun Youhai said that in the face of this situation, the environmental protection department is likely to be under pressure from local party committees and the government to not strictly enforce the law.
Ensuring that the environmental protection department independently exercises its authority in accordance with the law is the basis for strengthening environmental law enforcement capabilities. While focusing on solving the problem of ultra vires and abuse of power by the environmental protection department, how to solve the problem of "missing" and "fear of power" in the environmental protection department should also receive sufficient attention.
The task group believes that the independence of the environmental protection department should be strengthened to ensure that the environmental protection department independently exercises the supervision and control of environmental administrative law enforcement.
"In strengthening the leadership responsibilities of the government, especially the local government, we must implement the 'Notice of the General Office of the State Council on Strengthening the Enforcement of Environmental Supervision,' and implement the 'local people's government at or above the county level to assume leadership responsibility for the enforcement of environmental supervision in this administrative region'. Sun Yuhai said that this requirement should be adopted to provide "environmental support" for the environmental protection department to solve the problems it faces in environmental law enforcement.
On the other hand, the establishment of a comprehensive list of powers and responsibilities will also help ensure that the environmental protection departments independently exercise administrative enforcement powers. The task group suggested that in practical work, it should follow the requirements of the “Decision of the Central Committee of the Communist Party of China on Comprehensively Advancing Certain Major Issues of Governing the Country According to Law†adopted by the Fourth Plenary Session of the 18th CPC Central Committee to establish and improve the list of power and responsibility lists, and specify the environmental protection agencies and Relevant department's duties and authority, so that "law without authorization can not be", "legal authorization must be."
Strengthen the environmental legal responsibility and implementation mechanism and bring into play the role of social participation and supervision The new Environmental Protection Law and its supporting measures provide the environmental protection department with powerful measures such as daily penalties, seizures, seizures and administrative detentions, but since the implementation, there has been no one person. He resigned due to violation of Article 68 of the Environmental Protection Law.
According to Sun Youhai, in the past, bad habits of lax enforcement and illegal practices still existed, but the effectiveness of supervision and social supervision by the National People's Congress was insufficient.
As far as resignation is concerned, the new "Environmental Protection Law" has specified specific conditions for resignation, but it does not involve how to pursue the responsibility for illegal decision-making. According to the “Measures for Responsibilities of Selecting and Appointing Work for Party and Government Leading Cadresâ€, the Party and government cadres who resigned from resignation can reasonably arrange work posts or corresponding tasks after comprehensive consideration of their consistent performance, qualifications, and specialties. Determine the appropriate rank treatment. This has caused many officials who are not violating the law to be completely fearless.
To this end, the Task Force recommends the establishment of a full-account life-time accountability system in accordance with the relevant provisions of the "Notice of the General Office of the State Council on Strengthening the Enforcement of Environmental Supervision." "The purpose of setting up this system is to change the circumstances in which the relevant person in charge of the environmental protection department previously took responsibility for mobilizing, leaving, or retire." Sun Youhai explained.
In addition, the accountability mechanism for administrative responsibility also includes the accountability mechanism for the subject of environmental violations. Perfecting the accountability mechanism for the main body of environmental violations mainly focuses on strengthening the administrative penalties of the environmental protection department and strengthening the intensity and frequency of the implementation of the penalties.
When the level of public participation is low and the use of environmental public interest litigation is narrow, when the public faces environmental issues, they can only vent their dissatisfaction through online platforms such as Weibo and WeChat, which can easily lead to social conflicts.
"It can be said that the new "Environmental Protection Law" has a separate chapter to stipulate the methods of public participation and greatly increase public status, but the level of public participation and information disclosure is still relatively low." Sun Youhai admitted that public participation is still passively accepted. Information-based, rarely can actively participate in the reporting and supervision of environmental violations, law enforcement behavior, and judicial remedies are mainly focused on environmental civil public interest litigation.
Since Article 58 of the new "Environmental Protection Law" only provides for environmental civil public interest litigation, it does not involve environmental administrative public interest litigation. Based on this, the research team proposes to improve the environment civil public interest litigation system and establish an environmental administrative public interest litigation system.
Although the procuratorial organs are authorized to file environmental administrative public interest litigation is still in the pilot phase, but according to the special nature of the legal supervision organs of the Procuratorate, the procuratorial organs institute public interest litigation is a general trend, so it should be noted that its and public organizations filed a public interest litigation procedural The difference.
Because there are too few social organizations that have the will and ability to file environmental public interest litigation, the original intention of the system design cannot be achieved. Therefore, the task group suggested relaxing the restrictions on the public organizations' lawsuit against public organizations. In the “Environmental Pollution Prevention Act†and other special environmental laws and amendments, further relax the qualifications of social organizations to bring environmental civil public interest litigation and reduce the threshold for environmental protection organizations to initiate lawsuits.
"Furthermore, after the economic and social transition period is completed, about 2025-2030, social organizations and individuals should also start to initiate environmental administrative public interest litigation systems," said Sun Youhai.
Article link: China Environmental Protection Online http://
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