China set to elevate environment over development in new law

admin   •   April 15, 2014   •   2451

A girl reads a book on her balcony as smoke rises from chimneys of a steel plant, on a hazy day in Quzhou, Zhejiang province April 3, 2014. CREDIT: REUTERS/STRINGER

(Reuters) – Smog-hit China is set to pass a new law that would give Beijing more powers to shut polluting factories and punish officials, and even place protected regions off-limits to industrial development, scholars with knowledge of the situation said.

Long-awaited amendments to China’s 1989 Environmental Protection Law are expected to be finalised later this year, giving the Ministry of Environmental Protection (MEP) greater authority to take on polluters.

While some details of the fourth draft are still under discussion, it has been agreed that the principle of prioritising the environment above the economy will be enshrined in law, according to scholars who have been involved in the process. The fourth draft is due to be completed within weeks.

“(Upholding) environmental protection as the fundamental principle is a huge change, and emphasizes that the environment is a priority,” said Cao Mingde, a law professor at theChina University of Political Science and Law, who was involved in the drafting process.

The first change to the legislation in 25 years will give legal backing to Beijing’s newly declared war on pollution and formalize a pledge made last year to abandon a decades-old growth-at-all-costs economic model that has spoiled much of China’s water, skies and soil.

Cao cautioned that some of the details of the measures could be removed as a result of bureaucratic horsetrading. The MEP has called for the law to spell out how new powers can be implemented in practice, but the National Development and Reform Commission (NDRC), the country’s top economic planning agency, prefers broader, more flexible principles.

“There is a usual practice when everyone is unable to come to a complete agreement – we first put an idea into the law and then draw up detailed administrative rules later,” Cao said.

Local authorities’ dependence on the taxes and employment provided by polluting industries is reflected by the priorities set out in China’s growth-focused legal code, said Wang Canfa, an environment law professor who runs the Center for Pollution Victims in China and also took part in the drafting stage.

The environment ministry did not respond to detailed questions on its role in the drafting process and the specific content of the new amendments, but said the legislation was currently in the hands of the Legal Work Committee of the National People’s Congress (NPC), China’s legislature.

The protracted legal process usually kicks off with a number of drafts from academic institutions, which are then examined by ministries, local governments and industry groups. A new draft then goes to the legal affairs office of the State Council, China’s cabinet, before being delivered to the NPC and opened up to members of the public to have their say.

NEW POWERS

In the absence of legally enshrined powers, the environment ministry has often made do with one-off national inspection campaigns to name and shame offenders, as well as ad hoc arrangements with local courts and police authorities to make sure punishments are imposed and repeat offenders shut down. It has also stretched existing laws to its advantage.

Last year, it began to use its powers of approval over environmental impact assessments, which are mandatory for all new industrial projects, to force powerful industrial firms such as Sinopec and the China National Petroleum Corporation to cut emissions at some of their plants, threatening to veto all new approvals until the firms met their targets.

The new law would give the ministry the legal authority to take stronger punitive action.

“The environment ministry could only impose fines and management deadlines,” Cao said. “Now we can close and confiscate them. It’s an important right.”

It will also set up a more comprehensive range of punishments, putting an end to a maximum fine system that allowed enterprises to continue polluting once they had paid a one-off fee normally much lower than the cost of compliance.

Cao said the final draft was also likely to impose an “ecological red line” that will declare certain protected regions off-limits to polluting industry, though detailed definitions are likely to come later.

The legislation also proposes to formalize a system by which local cadres are assessed according to their record on pollution issues, including meeting emissions targets.

Experts have welcomed commitments to improve transparency and compel polluters to provide comprehensive and real-time emissions data. Criminal penalties will also be imposed on those found guilty of trying to evade pollution monitoring systems.

“The provisions on transparency are probably the most positive step forward. These include the requirement that key polluters disclose real-time pollution data,” said Alex Wang, expert in Chinese environmental law at UCLA. Wang said he had not seen the later, non-public drafts of the legislation.

FIERCELY CONTESTED

For nearly two years, scholars, ministries, local governments, companies and environment ministry officials have been debating the changes to the environmental protection law.

One of the most fiercely contested parts of the new draft was a clause designed to prevent most environmental non-governmental organizations (NGOs) from filing lawsuits against polluters.

The first draft said lawsuits could only be filed via the government-affiliated All-China Environmental Federation, though subsequent changes allowed other government-registered organizations that have been operating for at least five years to launch legal action.

Polluting industries have lobbied government officials not to relax the restrictions on the rights of NGOs to file suits, said Cao, who has attended numerous meetings with government officials on the new legislation.

UCLA’s Wang said the ultimate success of China’s war on pollution would be determined not by symbolic new legislation but by specific targets and guidelines that are now being imposed on local governments.

“Many people point to China’s laws as a sign of the government’s concern about the environment,” he said. “But changes in bureaucratic targets are a more direct indication of changing priorities and can tell us whether Beijing means business.”

(Additional reporting by Beijing Newsroom; Editing by Alex Richardson)

China sends 20,000 relief packs to Odette-hit areas

Robie de Guzman   •   December 21, 2021

The government of China is sending food packages for those affected by Typhoon Odette in Visayas and Mindanao areas, its Embassy in Manila said Tuesday.

In a statement, the Chinese Embassy said relief packages worth P8 million pesos are on its way to areas devastated by the typhoon.

These areas include Cebu, Leyte, Negros Occidental, Bohol, Cagayan de Oro City, Surigao City, and Negros Oriental.

Each package contains five kilograms of rice, 10 canned food and 10 noodles pack, it added.

“Our hearts go out to all the Filipino families who were devastated by Typhoon Odette which has caused massive casualties as well as property loss,” the statement read.

“China will do its utmost to continue its firm support to the disaster relief efforts of the Philippine government and the Filipino people. We wish all those affected could overcome the difficulties and rebuild their homes at an early date.” It added.

In addition to food packages, China also sent 4.725 million kilograms of rice to typhoon-hit areas.

The embassy said about 1.5 million kilograms were allocated for Cebu, while the 3.225 million kilograms in Manila will be transported to other areas.

“We thank the Philippine government, in particular the Department of Social Welfare and Development for their great efforts in urgently distributing these rice to those Filipino families in need,” it said.

Typhoon Odette left many casualties and a trail of destruction when it battered many parts of the Visayas and Mindanao last week.

Local authorities fear the death toll could still go up in the coming days as verification process continues.

PH Defense chief says China trespassing in Ayungin Shoal

Robie de Guzman   •   November 25, 2021

MANILA, Philippines – Department of National Defense (DND) Secretary Delfin Lorenzana on Thursday reiterated that the Philippines has sovereign rights over Ayungin Shoal (also called Second Thomas Shoal) following China’s call for the country to remove its grounded vessel in the area.

“Ayungin lies inside our EEZ (exclusive economic zone) which we have sovereign rights. Our EEZ was awarded to us by the 1982 UNCLOS, which China ratified,“ Lorenzana told reporters.

“China should abide by its international obligations that it is part of,” he added.

The Defense chief issued the statement in response to the remark of China’s Foreign Ministry, through its spokesperson Zhao Lijian, demanding the Philippines to remove the BRP Sierra Madre from the shoal.

BRP Sierra Madre is an old Philippine Navy ship that was ran aground there to assert Manila’s claim over the area. It has been serving as the outpost of a small Philippine military contingent since 1999.

In a press conference in Beijing, Zhao claimed anew that Ayungin Shoal (known in China as Ren’ai Jiao) is part of Nansha Qundao, which is the Chinese name for the Spratly Islands also being claimed in part by the Philippines.

But Lorenzana maintained that Ayungin Shoal is within the Philippines EEZ as it is located about 105 nautical miles west of Palawan.

Aside from UNCLOS, the Defense chief also noted that the Permanent Court of Arbitration, in its 2016 ruling on a case lodged by the Philippines, stated that China’s territorial claim over the West Philippine Sea has neither historic nor legal basis.

“Ergo, we can do whatever we want there and it is they who are actually trespassing,” he said.

“Meron tayong dalawang documento na nagpapatunay na meron tayong sovereign rights sa ating EEZ habang sila ay wala at yung claim nila walang basehan, “ he added.

Lorenzana also said that as far as he knows, there is no commitment made by Philippine authorities to remove BRP Sierra Madre from the Ayungin Shoal.

“As far as I know there is no such commitment. That ship has been there since 1999. If there was commitment it would have been removed long time ago,” he said.

China’s demand for the removal of BRP Sierra Madre from Ayungin Shoal came after Philippine military boats completed their resupply mission on Thursday.

The boats were deployed there a week after Chinese coast guard vessels blocked and harassed the first Filipino mission that were sent to the area.

The incident prompted President Rodrigo Duterte to call out China’s action at the contested waters during the ASEAN-China special summit on November 22. (with details from Correspondent Lea Ylagan)

Palace welcomes SC ruling junking plea to compel Duterte to defend PH territory

Robie de Guzman   •   November 24, 2021

MANILA, Philippines – Malacañang on Wednesday welcomed the decision of the Supreme Court (SC) to dismiss the petition to compel President Rodrigo Duterte to defend the Philippine territory against China’s claims and incursions in the West Philippine Sea.

“We welcome the decision of the Supreme Court dismissing the petition for mandamus filed against President Rodrigo Roa Duterte,” acting presidential spokesperson Karlo Nograles said in a statement.

Nograles was referring to an SC ruling dated June 29 but only uploaded on its website on November 22.

In a unanimous decision, the SC en banc dismissed the petition for mandamus filed by lawyer Romeo Esmero for “utter lack of merit.”

In his petition, Esmero claimed that it is the president’s ministerial duty to defend the national territory, which includes the West Philippine Sea as established by the UN Arbitral Tribunal.

He also asserted that “there is unlawful neglect or inaction by the president in the performance of his constitutional duty resulting to the detriment of ‘paramount public interest involve (sic) the livelihood of all of our poor Filipino fishermen and their families who are living in the coastal areas of the many islands facing the West Philippine Sea.’”

Esmero also suggested suing China before the International Criminal Court “to demand payment and damages for taking the Kalayaan Islands.”

“Our ruling in De Lima v. Duterte is clear: the president is immune from suit during his incumbency, regardless of the nature of the suit filed against him. Petitioner named President Duterte as the sole respondent in this case. For this reason, this suit should be dismissed outright,” the SC said.

The high court also noted that the petition for the issuance of a writ of mandamus “would still not lie in petitioner’s favor.”

A mandamus petition seeks to compel action and performance of a pre-existing duty, a ministerial function on the part of a board, officer or person, provided that the petitioner has a well-defined and clear right warrant the grant thereof.

“Indeed, the president is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. By constitutional fiat and the intrinsic nature of his office, the president is also the sole organ and the authority in the external affairs of the country,” the ruling read.

The SC said that for all the petitioner’s posturing, he failed to point any law that specifically requires the president to go to the UN or the ICJ to sue China for its incursions into the Philippine exclusive economic zone.

“Neither has he shown a clear and unmistakable constitutional or statutory provision which prescribes how the president is to respond to any threat (actual or imminent) from another State to our sovereignty or exercise of our sovereign rights,” the court said.

The SC said that former President Benigno S. Aquino was under no obligation to file a case against China through the UN Convention on the Law of the Sea (UNCLOS) in 2013.

“Taking China to binding arbitration was risky, as it could potentially damage relations with a major trading partner. On July 12, 2016, the arbitral tribunal issued an award overwhelmingly in favor of claims by the Philippines and ultimately bringing some clarity to the overlapping claims in the area,” the court noted.

The SC said that if President Duterte now sees fit to take a different approach with China despite said ruling, “this does not by itself mean that he has, as petitioner suggests, unlawfully abdicated his duty to protect and defend our national territory, correctible with the issuance by this Court of the extraordinary writ of mandamus.”

“Being the Head of State, he is free to use his own discretion in this matter, accountable only to his country in his political character and to his own conscience,” the SC added.

The 9-page ruling was penned by Associate Justice Rodil Zalameda. All 13 other justices concurred with the decision.

With this ruling, Malacañang said that the “executive power, indeed, rests on the President, including the peaceful and stable conduct of foreign affairs. Matters within the President’s discretion cannot be compelled by mandamus.”

The Palace also maintained that the president is the chief architect of foreign policy and this is affirmed by the latest decision of the High Court.

“Having said this, the president has firmly kept his position to continue the peaceful resolution of disputes,” Malacañang said.

 

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