TY - JOUR AU - He,, Xiangbai AB - Abstract The environmental impact assessment (EIA) system is currently located at the centre of China's environmental legal reform. The Chinese government has undertaken significant legal strategies to rectify past regulatory wrongs, close enforcement gaps, and improve public participation. However, ongoing administrative reform and prevailing policies optimizing the business environment have made the efficacy of EIA reform more complicated and uncertain. Through examining how EIA laws and regulations on accountability, compliance, and participation have changed, this article provides an analytical framework to evaluate current legal reform of EIA. It finds that the Chinese government is attempting to bring about genuinely functional EIA reform by improving the legitimacy and efficiency of EIA in delivering better environmental decisions. Yet, its efforts could be undermined by the unsettled conflict between legitimacy and efficiency. Furthermore, functional EIA reform could be constrained by peripheral challenges such as inconsistent institutional arrangements, the undefined role of the judiciary, and an underrepresented environmental public interest. 1. INTRODUCTION One of the most widely accepted and commonly used tools for predicting and mitigating adverse environmental impacts of proposed actions is environmental impact assessment (EIA). Established in the US National Environmental Policy Act 1969 (NEPA), EIA serves as a systematic and integrative system that requires decision makers to consider the environmental impacts of proposed actions and the comparative impacts associated with reasonable alternatives to proposed actions.1 EIA operates under the assumption that the government will make better decisions if it has all of the relevant information before it. Broadly, EIA champions a 2-fold approach in this regard. First, it aims to ensure that a governmental agency will have detailed information on significant environmental impacts when it makes decisions. Secondly, it seeks to guarantee that this information will be available to a larger audience. EIA’s influence is far-reaching, and its basic principles have been adopted extensively in the rest of the world, of course, with divergent legislation, institutional arrangements and implementation. EIA was introduced to China in the 1970s,2 and has been consolidated in laws, regulations, and technical guidance as a regulatory instrument. However, due to legislative deficiencies and an enforcement gap, which will be explained later, China’s legal framework fails to embody the preventive nature of EIA. The EIA system in China has long suffered from being a rubber stamp, where violations like construction without EIA approval are pervasive and rampant.3 Put another way, EIA has largely been treated as a matter of formality rather than a functional tool to deliver better environmental decisions.4 As a result of EIA’s lack of efficacy in preventing environmental pollution in China,5 the central government has made it a priority in recent environmental governance reform.6 For example, Chen Jining, who became the Minister of the Ministry of Environmental Protection (MEP) in 2015, made it clear that reforming the EIA system would be at the top of his agenda. His reforming strategies included severing the link between his ministry and its affiliated EIA companies,7 holding local officials accountable, and launching EIA enforcement storms.8 The central leadership amended the EIA Law in 2016 and 2018 to remove inappropriate approval procedures, raise penalties, and involve more with the public.9 Ongoing administrative reform of administration streamlining and power delegation to lower levels also significantly influences the reform of EIA’s approval procedure and approval authority.10 Current EIA reform shows promising steps towards improving legitimacy by correcting past regulatory problems and improving efficiency by streamlining approval procedures. However, two major concerns exist. First, many fear that this reform may further undermine the legal status and effects of an already weak EIA process in preventing environmental damage.11 This issue largely depends on how the conflict between legitimacy and efficiency is settled or compromised in current EIA reform. It deserves particular attention given current pressure to revive China’s economy and to optimize the business environment. Secondly, there is concern over the success of the new effort to garner support in light of the failed EIA efforts of the past, primarily due to the nature of China’s authoritarian regime, which ‘perform(s) constantly like a team of acrobats on a high wire, staving off all crises while keeping its act flawlessly together’.12 According to this argument, the regime’s defects such as limited transparency, lack of public review, its low profile forcivil society, and poor rule of law credentials cast clouds on the effectiveness of EIA reform. Performance legitimacy theory shares a similar concern. It upholds the idea that China has a willingness and capacity to make a policy shift quickly when it faces negative unintended consequences of earlier policies, mainly because performance (especially economic performance and social stability) constitutes the primary base of its regime legitimacy.13 According to this theory, reforming EIA would either be aspirational or would only yield easy policy reforms without fundamental institutional change.14 What further verifies this concern is the reality that Chinese environmental laws have largely played a symbolic role in past decades, and decades of continuous environmental reform of the regulatory framework and institutional structure has not prevented environmental deterioration.15 Both of these concerns highlight the importance of examining how current EIA reform has facilitated the functional goal of EIA, especially against the background of economic slowdown, administrative reform, and environmental governance reform. Successful enactment of Chinese EIA laws requires a holistic approach and collaborative effort between government, project proponents, and the public.16 Therefore, this article suggests that the success of EIA reform is contingent on how reformed EIA laws and regulations enhance government accountability, project compliance, and public participation while working toward the functional goal of EIA in delivering better environmental decisions. It will examine these three aspects to provide an analytical framework for evaluating current legal reform of EIA: (1) whether government, especially environmental authorities, make better environmental decisions based on information collected, which is further determined by how decisions are judicially reviewed or supervised, (2) how much project developers comply with EIA requirements, (3) how participation of the public informs the decision-making process. There has been some research on assessing both the general performance of EIA per se17 and the performance of a particular mechanism of EIA, such as public participation.18 Yet, most of this is either outdated or fails to catch the complicated political, legal, and institutional environment in which EIA reform takes place in China. As such, this article will provide a fresh and holistic perspective to understand and evaluate current EIA reform. This article proceeds as follows. Section 2 of this article will first delineate the trajectory of EIA reform in laws, regulations and related policies, with a particular focus on accountability, compliance, and participation. Given the fact that EIA reform takes place concurrently with ongoing administrative reform, inconsistent legal and institutional reform makes the process and outcome more complicated and uncertain. Section 3 will examine how current EIA reform has rectified past regulatory deficiencies in aspects of accountability, compliance, and participation in order to improve its legitimacy and efficiency. Section 4 will then identify and analyse factors that institutionally constrain the achievement and implementation of the desired goals of EIA reform. Specifically, Section 4 will focus on inconsistent institutional reforms, ambivalent judicial roles, and the neglected environmental public interest in public participation rules. Section 5 provides a conclusion. Though current EIA reform also touches slightly on Strategic Environmental Assessment (SEA), which assesses environmental impacts at the strategic planning level, this article will primarily focus on project level EIA. 2. THE LEGAL AND POLICY REFORM OF EIA SYSTEM: IN THE NAME OF LEGITIMACY AND EFFICIENCY The concept and practice of EIA in China can be traced back to the 1970s. It was first written in the 1979 Environmental Protection Law (Trial Implementation) (EPL),19 and then restated in the 1989 EPL. There were also several other administrative rules and ordinances issued to further regulate the EIA system and advance its implementation.20 It was not until 1998 that the State Council passed the first detailed and dedicated regulation—‘The Regulation on Environmental Management of Construction Projects’ (REMCP)—to specify the implementation of project-level EIA. As one of the most important regulations, it set fundamental requirements for the implementation of EIA and made EIA compulsory for construction projects of all sizes. After more than 20 years of EIA practice, the first stand-alone Environmental Impact Assessment Law (EIA Law) was promulgated in 2002, a landmark for China’s EIA regime due to its inclusion of SEA and public participation. This law also prescribed that a ‘project licensing authority shall not issue project licenses before the project obtains its EIA approval’. EIA approval by environmental agencies, therefore, was a prerequisite for other approvals—a veto arrangement that empowered environmental agencies with substantively regulatory authority to stop anti-environment projects and restrain project licensing authorities.21 This makes EIA in China distinct from that of the US as NEPA does not mandate the agency to choose the environmentally preferable options. While this veto arrangement was originally arranged to raise the profile of environmental laws and environmental agencies, it also created opportunities for rent-seeking where environmental officials use it as leverage to ‘extort’ applicants.22 For example, some EIA companies were found to be subordinate organs of environmental protection bureaus (EPBs), creating serious conflicts of interests. The central supervision team dispatched by the CPC Central Committee also detected that many government officials or their family members sat on the boards of EIA companies, showing partiality to project developers in return for cash.23 Furthermore, this veto power on proposed projects was undermined by the ‘make-up’ procedure stipulated in the EIA Law. If developers completely circumvented EIA requirements and commenced construction, they were allowed to adopt a ‘make-up’ assessment retrospectively. This provision was seen as a major weakness in the EIA regime, as it undermined the whole logic behind the EIA process.24 The failure to complete this make-up assessment procedure within a designated time generated up to a 200,000 yuan (about US$29,900) fine, a fraction of the gross investment of those large projects. Unsurprisingly, these laws were subject to abuse, and developers had significant incentives to effectively circumvent the restrictions imposed by EIA laws and regulations.25 Both Chinese environmental officials and scholars were aware of these legislative deficiencies and acknowledged that they were the result of compromises in the legislative process and concerns about limiting economic growth.26 Reforming the EIA legal process was imperative.27 2.1 Removing ‘Make-Up’ Procedure, Amending Veto Arrangement and Raising Penalties The legal framework of the EIA regime has been significantly reformed since 2015. The 2015 EPL removes the ‘make-up’ assessment procedure, meaning a project shall not commence construction without obtaining an EIA permit.28 The EIA Law and the detailed REMCP regulation were amended in 2016 and 2017, respectively, confirming the abolishment of the ‘make-up’ procedure and pre-approval procedure, as well as other measures of reducing regulatory burden for project.29 Accordingly, in its new versions, EIA approval still has a veto effect on project construction but no longer holds veto power over a project permit. This parallel arrangement between EIA approval and a project permit significantly reduces approval time and increases efficiency.30 The pre-review requirement for a project EIA, which required a preliminary examination by the other relevant government authorities, was also removed. More importantly, the EIA and REMCP amendments increased the penalty for failing to obtain EIA approval before construction. Fines have been raised from 1% to 5% of total project investment, which sends a crucial deterrent signal to reckless project developers.31 Moreover, responsible senior managers could be thrown into administrative detention for up to 15 days if they refuse to comply with punishment decisions on EIA failure. 2.2 Relaxing the Qualification and Certification Requirement for EIA Firms The latest amendment to the EIA Law in December 2018 reforms the qualification and certification system of EIA firms. Unlike the old law, where project proponents mandated professional EIA firms to prepare environmental impact statements, project proponents now have the choice to prepare assessment statements by themselves.32 Accompanied with this increasing flexibility is the responsibility to ensure data and information in the EIA statements are accurate. Project developers may face up to a 2 million yuan (about US$300,000) penalty if the basic data of EIA is obviously untrue; the contents are seriously flawed, omitted or false; the conclusion is incorrect or unreasonable; or other serious quality problems.33 2.3 Improving the Regulatory Framework for Public Participation Another significant development is the improved regulatory framework for information disclosure and public participation. Past legal frameworks on public participation, including the 2002 EIA Law and 2006 ‘Provisional Measures for Public Participation in EIA’ (Provisional Measures), did not provide much in the way of detailed participation rules and left many loopholes that exposed the framework to exploitation.34 For example, the 2002 Law defines the public to be the ‘relevant public’ and the Provisional Measures ‘the public representatives affected by the project’. These two definitions are quite uncertain, ambiguous and limited in scope. Furthermore, the 2002 EIA Law did not mention EIA statement disclosure while the Provisional Measures only required the disclosure of an abridged edition of an EIA statement. The 2015 EPL makes a great contribution to improving information disclosure in regard to EIA statements. Article 56 requires that full EIA statements must be made available to the public and these statements must include a chapter on how the public will participate in the EIA process. However, it still fails to clarify who the public is. To further elaborate participation rules, the Ministry of Ecological Environment (MEE) released the ‘Measures for Public Participation in EIA’ (MPP) in 2018. This rule puts forward a clearer definition of who is the public, the form participation will take, what must be disclosed, how to deal with public opinions and supervision of public participation.35 The definition of ‘public’ is narrowed to those located within the geographic scope set in the EIA report. Project developers are required to explain why public opinions are not accepted, and hold public hearings if the public has serious concerns or scepticism about the environmental impact of a proposed project. EIA reports should be sent back to developers if public participation is insufficient, and a manager that fabricates data or public opinions will be blacklisted on the environmental credit system. 2.4 Delegating Approval Power and Streamlining Approval Procedure As early as 2012, reform was undertaken to devolve more EIA approval authority to lower level EPBs to make the approval process ‘simpler, faster and more efficient’,36 a move that could cause more risks and problems to the environment.37 In the following few years, with wider administrative, procedure, and governance reform, EIA approval authority of selected projects has been delegated by the MEE38 to provincial level EPBs. This includes projects in regards to distributed gas power generation, urban rapid rail transit and the expansion of civil airports, thermal power plants, iron and steel smelting, non-ferrous smelting, and national highways.39 The scope of projects which can be EIA approved by municipal and county level EPBs also greatly expanded due to delegation from the provincial level. For example, in 2017, EPBs of Jinan, Qingdao and Yantai in Shandong Province were entrusted with broader EIA approval powers.40 Some local governments went further. In Ningbo city of Zhejiang Province, more than 90% of EIA approvals were devolved from municipal EPBs to the county level.41 As a result of this delegation, lower level EPBs now have the power to unilaterally exempt projects from undertaking EIA and time limits for EIA approval have been reduced.42 For instance, Fujian’s provincial EPB exempts 42 categories from undertaking EIA, including ‘road maintenance’ and ‘simple road surface reconstruction’.43 Against the background of economic slowdown and the US–China trade war, China introduced multiple policies to optimize the business environment and reduce regulatory costs, which have further accelerated efforts of simplifying the EIA approval procedure and devolving approval authority.44 Local governments have taken the opportunity of EIA reform to reduce regulatory burdens on business. For example, Shanghai EPB has simplified what needs to be the content of an EIA statement, and has reduced the time and days for information disclosure during the EIA preparation stage.45 The MEE has even authorized Beijing and Shanghai as pilot areas to make local categorical rules for EIA that are normally exclusively exercised by MEE according to the EIA Law. As a result of those reforming measures, data released by the MEE in 2019 shows that more than 80% projects are exempted from EIA approval, and the EIA approval time has been reduced to half of the time prescribed in the EIA law.46 The above reforming measures may be ostensibly sporadic, but they concentrate on two aspects of EIA. The first aspect seeks to correct past regulatory deficiencies in order to improve the legitimacy of EIA in preventing future environmental harm. The second aspect aims to improve the efficiency of EIA through removing unnecessary red tape and ‘greasing the wheels’ of the application process. These two aspects are quite often in conflict since faster approval times can sacrifice prudent and preventative assessment. In essence, it is a battle between environment and economy, which could not be resolved simply by increasing penalties imposed on project developers and improving public scrutiny. In addition, while the conflict between environmental wellbeing and economic interest has haunted China for many decades, it is particularly intensified when the central leadership simultaneously advocates ‘ecological civilization’ and ‘optimizing the business environment’ as tenets. These two strands are fully embodied in current EIA reform, and thus deserve careful examination with regard to their contribution to, or compromise with, the functional goal of EIA. 3. EIA REFORM IN AN AUTHORITARIAN REGIME: CLOSING LEGISLATIVE AND ENFORCEMENT LOOPHOLES? The pathways of reform and any outcomes are generally shaped by various legal, political and social factors, and therefore are difficult to evaluate in the short term. Yet, we can still map the reforming profile from a prescriptive perspective through analysing how laws on powers, rights, and liabilities have been changed and how these changes have affected the interaction between government, project developers, and the public. As illustrated earlier, the problems of government accountability, project compliance, and public participation have been the primary reasons for China’s EIA dilemma. Therefore, an analysis of these issues could help us understand how legal developments have resolved the problems identified above and contributed to the functional goal of EIA. 3.1 Reforming Governmental Accountability: Delivering Better Decisions? The removal of EIA pre-approval procedure simplifies the approval procedure, and therefore helps to improve the efficiency of project approval. However, even though EIA still has veto power over a project, this reform will likely weaken the efficacy of EIA as a tool for pollution prevention and impair an environmental agency’s leverage on project approval. First, while the old regulation required the proposed project to submit the EIA statement for approval at the ‘feasibility study’ stage, the new law relaxes the timeline to ‘before commencement of construction’.47 As a consequence, EIA loses the opportunity to predict and mitigate adverse environmental impacts at an early stage. Furthermore, with the parallel arrangement, a project licensing authority is legitimately entitled to issue project permission without being restrained by decisions on EIA. Given the reality that they so often illegally granted the proposed project permission to construct before it obtained the EIA approval under the veto arrangement, it is easy to foresee that they will disregard EIA procedure more often under the parallel arrangement.48 In that sense, the removal of EIA pre-approval procedure undermines the preventative nature of EIA.49 Secondly, the veto arrangement represented an administrative system of checks and balances where environmental authorities were empowered to share and also restrict the project licensing power enjoyed by economic-centred authorities.50 In other words, the abolishment of the EIA pre-approval procedure exempts environmental authorities from influencing or leveraging the decision-making power of project licensing authorities. Once construction approvals of time-consuming and financially colossal projects have been issued, the sunk costs make it harder for environmental authorities to deny EIA approval regardless of the assessment outcome.51 Nevertheless, under China’s EIA legal framework, MEE and EPBs still possess considerable power and discretion in formulating and implementing EIA rules, including: making categorical rules for screening, examining, and approving EIA documents; terminating projects that reach the ecological threshold; and detecting EIA violations and imposing penalties. Given the complex and scientific nature of the EIA system, administrative discretion provides environmental authorities with important flexibility to apply laws and regulations to different circumstances, or to make optimal decisions to fulfil regulatory tasks. Yet, it may also lead to uncertainty about the process and inconsistent application, as well as regulatory capture and corruption. Therefore, the key issue is whether this considerable power and discretion has been restrained by effective judicial review and a robust accountability system. 3.1.1 Broad but unchecked discretionary authority of MEE Unlike NEPA in the US, which requires only major federal actions having significant impacts on the environment to be subject to EIA, all projects in China go through an EIA process, but with different requirements of assessment statement based on different project categories.52 For projects that are likely to cause a range of significant adverse environmental impacts, a full Environmental Impact Report (EIR) is required. On the other hand, for projects likely to cause less impact on the environment, a less detailed Environmental Impact Form (EIF) is required. A basic Environmental Impact Registration Form (EIRF) is required for projects causing very minor impacts on the environment. Each of these reports and forms entails a different assessment scope and legal procedure. For example, public consultation and participation is mandatory for an EIR, but not for an EIF or EIRF. Moreover, while an EIR and an EIF require approval from competent environmental authorities, an EIRF is exempted from approval and only subject to record-filing management. The screening decision to allocate projects to the different categories and require different assessment scopes is largely based on a set of predetermined categories with thresholds related to project features, size, output, sensitivity and other related environmental parameters. Hence, it is crucial to examine how this encoded catalogue is designed and implemented. The MEE is given broad administrative discretion to formulate and revise the categories of EIA based on environmental sensitivity and potential impacts of a proposed project.53 The ‘Catalogue for the Classified Administration of Environmental Impact Assessments for Construction Projects’ (Catalogue), issued by the MEE, has played an important role in the screening and scoping process of EIA. While the purpose of EIA is to identify and assess potential environmental impacts, the MEE holds the authority to pre-determine the level of environmental impacts based on its expertise. Another power that lies with the MEE is its extensive discretion in defining ‘environmental sensitivity’ and its autonomy in assigning different projects to different categories.54 Environmental sensitivity can be different among different industries and projects. For example, residential areas are identified as environmentally sensitive in an offshore tidal power station project while they are not classified as such in a hydroelectric generation project. Therefore, the way in which a specific project is identified and defined can determine the type of EIA documents needed and the procedure required to involve the public. Moreover, from time to time, the MEE often shrink the range of projects that shall prepare an EIR by narrowing down the scope of sensitivity when they revise the Catalogue. This is done to remove the perceived obstacles to a developing economy, to channel growing popular unrest, or to cater to developers’ preference for a simplified procedure. Often, with those revisions a project that is originally required to prepare an EIR may only need to prepare a much easier EIF, for which public participation is not mandatory. Furthermore, the Catalogue has been used by the MEE to implement the devolution of EIA approval power, which lowers the EIA threshold and results in decreasing numbers of projects preparing an EIR. Compared to the 2015 Catalogue, the 2018 Catalogue has either downgraded about 30 categories of construction projects from being mandated to have an EIR to have an EIF, or narrowed the scope and scale of projects requiring an EIR.55 In practice, the scope of projects preparing EIRFs has also expanded, accounting for nearly 80% of total EIA statements.56 As well, to improve approval efficiency, the approval power in relation to some EIRs and EIFs has been devolved to lower level EPBs who may face intervention from local governments to prioritise economic concerns. Local governments pursuing economic growth hail this delegation and see it as an opportunity to boost local industry without following strict requirements to consider environmental concerns. For instance, Shanxi province, abundant in coal, experienced a ‘great leap forward’ in thermal power plants construction after the EIA approval power was delegated to the provincial EPB.57 Besides the broad administrative discretion in the screening and scoping process, environmental authorities also enjoy considerable discretion at the EIA decision-making stage and implementation stage. For example, when listing reasons to disapprove an EIR or EIF, ambiguous or uncertain concepts like ‘significant defects or omissions’, ‘unnecessary measures’ or ‘unspecific or unreasonable conclusion’ are employed to provide environmental authorities with discretionary spaces.58 The recently amended EIA laws and regulations have diversified penalty categories and raised fines, which also increases the discretionary power of environmental authorities when enforcing EIA laws. As noted above, the fine of failing to obtain an EIA approval before construction in the 2018 EIA Law could range from 1% to 5% of total investment of the construction project. An examination of how this discretion in screening, scoping, decision-making and implementation are supervised is crucial to understand and evaluate the performance of environmental authorities. The discretion of administrative penalties has been regulated by the MEE and many provincial EPBs through developing specific rules and criteria.59 Furthermore, it is also subject to close judicial supervision. EPBs’ decisions regarding administrative penalties have experienced more frequent challenges than other challenges to examination and information disclosure.60 In contrast, the administrative and judicial supervision of administrative discretion in the screening, scoping and decision-making stage has largely been neglected,61 and therefore it will be the focus of this part. Research has found that neither the MEE’s power to formulate and revise the Catalogue nor its authority to delegate has undergone effective public scrutiny or judicial review.62 First, the formulation or revision process is not transparent, lacks guiding principle, or is released to the public. The MEE may consult in rare circumstances when revising the Catalogue. Such consultations, however, are not with the public, but rather with technical experts and competent bureaucrats.63 Deriving from China's technocracy, this paternalistic approach to informed consultation has exempted the public from being involved.64 Second, China's current Administrative Litigation Law has exempted department rules from judicial review, and the Catalogue is one of them. What could be challenged in courts are EIA approval decisions made by MEE and EPBs that fail to comply with the Catalogue or related laws. For example, there are cases challenging the replacement of an EIR with an EIF or an EIRF.65 However, detailed examination of these cases reveals that no clarified and reasonable criterion exists for the judicial review of the exercise of discretionary authority on this issue. Informed by existing categorical rules and current devolution reform, the examination and approval processes of EIA involve scientific issues, specialised evaluation methods and procedures, and the exercise of judgement in regards to different interests. As such, these processes pose a challenge to judges presented with the task of judicially reviewing EIA decisions, especially when they involve ambiguous concepts. Theoretically, when EPBs decisions are challenged in courts, judges should strike a balance between judicial deference to the expertise of administrative decisions and appropriate procedural review to make sure that relevant risks and interests are reasonably considered. Yet, empirical studies show that judges rarely respond to substantive issues or scientific concerns, such as when to apply a specific technical standard. If they do, they show excessive deference to EPBs’ decisions on the basis of technical professionalism or scientific uncertainty.66 In terms of procedural review, courts only examine the formality of the procedure, without considering whether this procedural formality is substantively legitimate or reasonable.67 In many cases, judges create concepts like ‘flaw’ or ‘minor illegality’ to avoid having to judge a procedural violation. For example, according to the courts, the absence of a hearing, inadequate time for notice, or lack of adequate public participation do not impinge a plaintiff’s rights and therefore do not annul an EPBs’ EIA decision.68 Without requiring environmental authorities to collect all relevant information or consider possible risks, this approach to judicial review is often criticized for its concession to administrative power.69 Overall, the judicial review of administrative discretion in EIA approval is very difficult, and environmental authorities enjoy a considerably high win rate.70 3.1.2 The preference for political accountability over legal liability Another key way to restrain administrative power is to develop an accountability system where dereliction of duty or abuse of discretion is supervised and penalised. Article 34 of the EIA Law stipulates that responsible environmental officials shall be given disciplinary sanctions if they: engage in malpractices for personal gain; abuse their power or neglect their statutory duty; or approve EIA documents for a construction project in violation of the law. The current round of EIA reform does not bring any substantive change in the legal liability of responsible officials. However, China's legal regime on environmental governance employs a dual accountability system of political accountability and legal liability. Imposing legal liabilities on governmental officials has not been the customary practice of the regime.71 What has been prioritized and operated in EIA implementation practice is political accountability through mechanisms of target-based cadre responsibility, environmental inspections, and environmental ‘talks’ within the bureaucracy.72 In Chinese environmental governance, it is not difficult to discern how political accountability has been widely applied in a hierarchical manner. One prominent example is the target-based cadre responsibility system prescribed by various environmental laws and policies.73 To control and correct deviant behaviours of local officials, and to induce them to work in the interests of the central authority, a detailed, draconian, and quantified target system has been established to evaluate local officials from the top down.74 An EPBs’ failure to achieve assigned targets could result in negative career consequences such as termination, demotion, or transfers, while target achievement can bring attractive monetary awards, bonuses, and promising promotion opportunities.75 EPBs could also be held accountable if they grant EIA permission to projects located in areas that are not up to required environmental quality standards or are unable to achieve environmental quality improvement targets.76 In some cases, the MEE could suspend EIA approval in a certain region if there is a project located in this region failing to achieve environmental quality improvement targets.77 Centralized environmental supervision represents another way of controlling various levels of EPBs in areas of environmental target achievement and environmental law enforcement.78 First, the MEE and provincial EPBs are required to use environmental inspection to supervise the implementation of EIA laws by local governments and EPBs. They must pay specific attention to the legality of approval procedures and decisions.79 Second, supervision includes consideration of whether local EPBs have implemented the reforming policy on delegating approval authority. Detected failures to follow regulations or policies could result in disciplinary sanctions ranging from public criticism and demotion to removal from office, which would adversely affect an official's political prospects. The sheer number of environmental officials held accountable by the empowered high-profile central environmental supervision team is arresting.80 Third, an emerging method designed to hold local officials accountable are environmental ‘talks’. These talks are conducted between the MEE and its regional supervision centres, on one side, and local officials, especially city mayors, on the other side. Local government leaders can be summoned and questioned if EIA violations in their jurisdictions are rampant.81 They are then required to solve these problems by a firm deadline, the failure of which will result in political punishment such as admonition and removal from office. Political accountability is characterized with responsiveness where government officials are expected to be responsive to the policy priorities and expectations of their superior level governments.82 Unlike legal liability, which strictly requires the legal enforcement of substantive and procedural laws in individual cases, political accountability evaluates local government's overall environmental performance.83 Therefore, whether or not local government and environmental agencies follow EIA laws and regulations in each EIA case is not the priority of political accountability. For example, to cope with intensified central environmental supervision and avoid political accountability, local environmental officials often adopt a one-size-fits-all approach to close down small-scale factories, restaurants, or livestock farms without discerning whether those entities legally possessed EIA approvals or not.84 This preference of political accountability produces mixed outcomes for an EPBs’ EIA performance. On the one hand, its evaluation criteria of environmental performance helps to elevate environmental priorities at local level. Local government and Party leaders may provide more support to, or at least less intervention in, local EPBs’ EIA decision-making process. On the other hand, the powers and liability immunity of due diligence for environmental authorities has not been very clear, which ineluctably yields undesired consequences like short-sighted responses, perfunctory rectifications, and organizational cheating behaviours such as data falsification.85 It may distract the efforts of environmental agencies from delivering better EIA decisions and implementing EIA laws. Moreover, the process and outcome of political accountability is primarily a system of internal checks, and it has no procedural transparency or external public scrutiny. Its application actually insulates government officials and Party leaders from being held accountable by the public,86 and thus has limited effectiveness in transforming the incentive structure of local leaders and environmental officials.87 3.2 Reforming EIA Enforcement Approaches: Closing Enforcement Gap? For a long time, China's prioritization of economic interests over pollution control has not only led to collusion between government and polluters but also to lax enforcement.88 The enforcement gap between EIA laws on paper and in practice was and still remains a notorious problem of China's EIA regime.89 Although the EIA implementation rate is officially reported over 90%, more than half of the projects circumvent EIA procedures before construction.90 As illustrated in section 2, reasons could be mixed, including legislative loopholes, the low cost of violation, weak environmental authorities, and local protectionism. Meanwhile, the enforcement style or approach also affects enforcement efficacy. China's EIA enforcement heavily relies on a campaigning style enforcement, which has been criticized for its limited effect in solving the enforcement gap problem.91 At the same time, related laws have developed plural enforcement approaches, which deserve further examination in terms of their contribution to more effective enforcement. 3.2.1 Heavy reliance on campaign-style enforcement As early as 2005, SEPA was in a weak position and its authority was frequently ignored by ministries of economic development and local governments. As a consequence, it was extremely hard to enforce environmental laws, including EIA. The extensive failure of regular EIA enforcement forced SEPA to constantly launch ‘environmental storms’ or ‘EIA storms’ to crack down on large-scale construction projects that had no EIA permit or violated relevant EIA laws.92 Measures undertaken in ‘storms’ included temporarily halting the construction of several major projects, listing some projects as key supervisory targets, and imposing a blanket suspension of the approval of EIA documents for all construction projects in designated regions or river basins.93 This campaign-style enforcement had merits of overcoming local protectionism, strengthening environmental laws, raising SEPA’s profile, and quickly fulfilling certain short-term goals.94 However, this approach to advance the enforcement of EIA laws only represented an ephemeral response to certain environmental pressures or the political enthusiasm of the central environmental agency at a point in time.95 They had very little deterrent effect beyond the period of the ‘storms’.96 Many of those halted projects returned to the status quo or resumed construction just a few days after the campaign, without taking EIA laws seriously or rectifying their EIA violations.97 Moreover, this enforcement style may disrupt the development of sustainable compliance and routine enforcement mechanisms, and further undermine procedural justice and the rule of law.98 In recent few years, the Chinese government has undertaken serious institutional reform to resolve the systematic or institutional barriers to effective enforcement, such as elevating the position of SEPA, enlarging the enforcement authority of environmental agencies, and initiating vertical environmental management reform. Nonetheless, the extent to which EIA laws are enforced is still largely dependent on political demands and the urgency of problems rather than legal rules and administrative procedures.99 And campaign-style enforcement remains an important EIA enforcement approach. For instance, intensified centralized environmental supervision has created strong incentives for EPBs and local governments to undertake sweeping enforcement approaches like shutting down factories and livestock farms indiscriminately.100 While the institutional obstruction of regular EIA enforcement has been removed, the heavy reliance on campaign-style enforcement indicates that institutional reform is only one of factors influencing enforcement strategy and efficacy. 3.2.2 Enforcement based on plural compliance motivations: development and constraint Generally, there are three types of theories that are widely adopted to explain the regulatory compliance behaviour of firms. The first are economic motivation theories that assume that firms are rational actors pursuing maximum profit, and they obey a given regulation only when it is in the firm’s best economic interest to do so.101 A firm will choose to violate laws if the perceived benefits of violation exceed the predicted cost of sanctions. The cost of violation is normally determined by the probability of detections times the severity of sanctions if detected.102 The second set of theories concern normative motivation. These theories assume that firms are law-abiding actors and they comply with the law not out of fear of legal sanction but out of a sense of moral duty.103 Therefore, a legitimate regulation which is developed and implemented fairly ought to be followed.104 Firm compliance flows from firms’ internalized moral judgments about the substance and procedures of the law as well as government authorities that administer the law.105 The third set of theories relate to social motivation. These are based on the premise that firms are social actors, and they comply with regulations out of the desire to earn the respect and approval of others with whom they interact significantly, which include other regulated entities, trade associations, customers, stakeholders, and the wider public.106 These compliance models are not mutually exclusive, and one firm may have plural or mixed motivations for compliance at different stages.107 Accordingly, different theories entail distinct enforcement strategies for improving compliance. Although the path from motivation to compliance is filled with constraints and contingent factors at the individual, organizational, and structural levels,108 these typologies can still provide a useful framework to discuss how China’s EIA legal reform has enhanced EIA enforcement and compliance. The theory of economic motivation emphasizes enforcement and deterrence as a means to change a firm’s calculations of benefits and costs.109 To deliver better deterrent effects, regulators need to raise penalties or intensify inspections and monitoring. China’s current EIA legal reform clearly illustrates how much it has relied on this calculation model. Some salient examples are the soaring fines for those projects without an EIA approval or with fraudulent EIA statements, the likelihood of responsible managers being detained, as well as extensive and intensive environmental inspection. Research shows that frequent onsite inspections conducted by upper-level governments have discouraged violations.110 What makes this deterrent model more viable is China's ongoing institutional reform to centralize the responsibility of environmental monitoring and inspection - a shift from municipal and county EPBs to the provincial level.111 This vertical management reform is expected to reduce local protectionism and increase the independence and ability of EPBs to punish lawbreakers.112 All of these enforcement strategies are designed to increase the cost of violations and thus act as a deterrent for reckless developers. From a normative motivation perspective, it is crucial to promote the legitimacy of regulation through improving procedural justice, regulatory clarity, reasonableness, and fairness.113 Supporters of a normative approach propose to simplify regulations, reduce rigidity, and provide cooperative compliance assistance when firms face compliance difficulties.114 As the ‘make-up’ procedure is one of the primary reasons for extensive EIA violations, its removal could be deemed as progress towards providing a more legitimate and reasonable EIA law. Second, the streamlining of EIA application and approval procedures grants project developers more flexibility and thus better incentives for regulatory compliance. Nonetheless, these merits are compromised by regulatory complexity and inconsistency. China’s current EIA regime is entangled in much regulatory complexity. These include not just the EIA Law, but also special laws on water, land and air, regulations on project-level EIA, and a myriad of technical guidance. The inconsistency and incompatibility among these laws have made it very difficult and costly for developers to act in good faith to clearly identify and respond to regulatory obligations.115 In addition, the non-transparent revision process of EIA Law, which bypassed draft disclosure processes and public consultation, reduces its procedural justice,116 and its frequent amendment also brings much instability and unpredictability. For quite a long time in China’s enforcement history, assisting with compliance attached with little importance. Some firms complain that a tough enforcement approach is not fair because they are not given sufficient time or assistance from authorities to install costly equipment.117 This situation is expected to change since Premier Li stressed in the 2019 Report on the Work of the Government that ‘enterprises as the main body of environmental protection need to be properly guided, assisted to comply with corresponding regulations and standards’.118 The Minister of MEE has also articulated that environmental enforcement officers will not only inspect, but also help enterprises to get over difficulties, and help them comply with certain regulations and standards.119 However, it remains to be seen how such assistance in terms of finance, resources, and training can be provided. For the third set of theories, where social opprobrium or stigma works better than large fines or stringent laws, a social credit and evaluation system is more desirable. These theories encourage the flourishing of multiple informal social pressures, such as the media, industrial associations, and shareholders. Yet, these forces are highly dependent on a mature market where breaking laws could negatively affect the competitiveness or the economic future of reckless project operators. As a very initial effort, the latest EIA Law promotes the application of a social credit system to bolster better compliance,120 after developers are given the flexibility to prepare an EIA statement themselves. The legal developments in regard to public participation iare also expected to facilitate a higher level of compliance. However, such public pressure currently only plays a very marginal role due to the fact that the public’s right to participate is not guaranteed by sufficient institutional support or guaranteed by the courts. 3.3 Improving Public Participation: A Rights-Based Turn? Besides the aforementioned role in facilitating better corporate compliance, public participation is also regarded as one of the cornerstones of EIA in providing valuable information on potential impacts of a proposed project and informing decision-makers.121 As Wood argued, ‘EIA is not EIA without consultation and participation’.122 Its broad range of benefits and obstacles in China has been clearly illustrated by Zhao’s article published by this Journal in 2010. According to Zhao, major constraints that hinder effective and meaningful public participation in Chinese EIA processes include the limited extent of public participation in project EIA, limited access to information, limited impact of the public in decision-making, and limited access to judicial redress and remedy.123 Based on her research, this article will focus on exploring whether, and how, the current round of EIA reform has removed the above barriers and contributed to meaningful public participation. Public participation in China was originally designed to supervise reckless local officials and enterprises, and help the central environmental authority to achieve its delegated mandate of protecting the environment.124 This ‘pragmatic’ mentality and management of public participation did not confer on the public a clear legal right to information, participation, and/or justice. The 2015 EPL and 2018 MPP make remarkable progress in clarifying that the public has a procedural right of participation, a right to know, and a right of supervision.125 Confirming public participation as a right and improving information transparency are vital for ensuring meaningful public participation, but its translation into reality heavily depends on implementation rules and judicial remedies. Without clear implementation rules and sufficient judicial access, improved information transparency alone will not impact the government’s environmental performance and decision outcomes.126 Despite the improved clarity of participation rules, ambiguous concepts are pervasive and leave considerable discretion to both project developers and environmental authorities. For example, it is up to project developers to decide the form of participation. They can choose among questionnaires, conversation, expert meetings or public hearings. The MPP does stipulate that the public can apply for a public hearing before an environmental authority makes an EIA approval decision, however without clarifying conditions for that hearing. It is also up to an environmental authority to define whether EIA approval involves a ‘significant interest’ and thus whether a hearing is required based on the Administrative License Law.127 In many cases, when local residents located within the scope of an EIA project bring claims that a hearing has not been conducted as part of the EIA preparation and decision stage, a court only reviews whether the minimum mandatory requirement for public participation is complied with,128 adopts a narrow interpretation of uncertain legal concepts, or uses concepts like ‘flaw’ or ‘minor illegality’ to avoid judging procedural violation.129 Furthermore, the 2015 EPL entitles environmental NGOs the standing to litigate in the environmental public interest, but not the procedural right of public participation that could influence EIA decision making. It makes it very difficult for NGOs to challenge EIA approvals that lack adequate information or are not based on a sufficient consideration of the environmental public interest before environmental harm happens. In light of this, some NGOs bring suit against project developers, challenging that their EIA documents violate laws and should not be approved in the first place.130 This type of public interest litigation, so-called preventative litigation, is criticized because it compels the court to take measures which should be under the jurisdiction of environmental authorities.131 As a result, right-based provisions of public participation are not a reality due to embedded legislative and judicial constraints. Public participation in the EIA system is still treated as a mere formality, where the process is more like a box-ticking exercise to show the environmental authority and society that EIA requirements have been completed.132 Questionnaire surveys, as a preference of project developers to replace conversation and public hearings, are still manipulated by project developers to either simplify opinion collection or falsify information on public participation.133 The not-in-my-backyard (NIMBY) movement is still widely adopted by concerned citizens to protest against industrial pollution and hazardous projects where they are excluded from being informed or involved in the EIA process.134 Frequent NIMBY agitation not only endangers social stability, but also essentially challenges the legitimacy of the whole EIA regime for lack of real public participation. Developing rule-based participation and providing sufficient judicial guarantees for public participation is imperative for the success of China’s EIA reform. 4. EVALUATING CHINA'S EIA REFORM: SYMBOLIC OR FUNCTIONAL? Does ongoing EIA reform actually constitute a genuine functional reform in terms of delivering better environmental decisions? Or is it merely a symbolic one to show the public the regime is taking action against environmental degradation? Any answer needs to portray the complexity of China’s EIA legal reform. At its core, the regulatory mandate of China's EIA framework is simple: the project developer is required to look before it leaps into project construction by collecting adequate information, connecting with major stakeholders, and making information available to the public through EIA. EIA’s primary goal has always been to foster better decisions for the environment. From a normative perspective, correcting regulatory loopholes, deterring project developers with uncapped penalties, and stipulating public participation as a legal right should be deemed as the Chinese government’s genuine efforts to reform EIA. Not only because these measures restore the original logic of the EIA system in predicting and preventing potential environmental damage before construction, but also because these reforms are meant to increase interaction between the government, project developers, and the public. However, due to the uncertain and complex nature of environmental issues, as well as the political and economic nature of project planning and construction,135 genuine or substantive legal reform of EIA does not come easily. It is intertwined with environmental and socio-economic interests, and the divergent interests of government, project developers, and the public. All this often entails interest trade-offs and compromises.136 For example, the intense pursuit of efficiency improvement and regulatory burden reduction brings serious challenges to EIA reform’s goal of improving legitimacy and delivering better environmental decisions. Furthermore, EIA reform could be constrained by inconsistent institutional reform, an ambivalent judiciary, and the neglect of the environmental public interest in public participation rules. These three aspects could significantly reduce the legitimacy and quality of EIA decisions. First, China’s EIA reform is, to some extent, reactive, fragmented and piecemeal, and lacking systematic institutional arrangements. It is in conflict with ongoing environmental governance reform that has a centralizing trend. To improve environmental governance outcomes at the local level, the central leadership has a very strong recentralized political grip on environmental issues through approaches like introducing stricter national laws and sanctions, relying on central level enforcement campaigns, and introducing a centralized verification programme of local emission data.137 The EIA reform of decentralizing more approval power to lower level EPBs, therefore, conflicts with this recentralization trend. It also contradicts with current vertical-based management reform, which has centralized financial resources and the authority for monitoring, inspection, and enforcement from municipal and county EPBs to the provincial level.138 Local EPBs of the municipal and county levels may find they have limited knowledge in understanding and assessing environmental impacts of large scale projects, and also limited power and capability in monitoring EIA operation, inspecting EIA violations, and imposing sanctions. As the central government’s EIA enforcement storm sweeps through local areas, it is grassroots EPBs that are held accountable for severe environmental conditions or poor environmental performance. There is a great mismatch between local EPBs’ status, authority and their accountability. Unfortunately, institutional deficiencies and obstacles to local EPBs’ EIA performance have not been sufficiently explored.139 Furthermore, the decision-making process of EIA epitomizes the complexity and difficulty in dealing with the conflict between environmental and economic interests, as well as the conflict between efficiency and ecological safety. Current reform does not provide sufficient institutional protection to environmental interests. For example, the devolution of EIA approval powers and the simplification of the approval procedure may speed up the decision-making process for project development, but also leaves local governments who are preoccupied with economic performance more space to trade long-term environmental benefits for short-term economic profits. While local protectionism has been widely blamed for its threats to environmental interests,140 the possibility that EIA delegation may create more problems for EIA implementation at the local level has been underestimated and unexamined. This issue is critical for the future of EIA in China especially in the context that the central leadership requires local governments to reform the EIA system for a better business environment.141 Secondly, the institutional difficulties and judicial weaknesses in holding the government accountable has become one of the key obstacles to implementing substantive EIA reform. When EIA was born in the US, the purpose of the whole system was to strengthen the environmental rationality of governmental decisions, more than the environmental rationality of individual developers, by increasing both the availability of information to the public and strengthening the role of the judiciary in supervising federal environmental decisions.142 In fact, the development of NEPA and its enforcement is closely intertwined with NEPA litigation, most of which is about challenges to the inadequacy of NEPA compliance.143 The ease with which litigants have been able to access the judicial system has been viewed as a major strength of US’s EIA.144 In other words, the courts’ gate-keeping function plays a pivotal role in improving the legitimacy and accountability of EIA decisions. However, when EIA was transplanted to China in the late 1970s, it encountered insufficient constraints on administrative authority, a lack of downward accountability, and an absence of an independent judiciary. These institutional deficiencies resulted in a developer-centred EIA where the duty and liability of government has been marginalized. The past four decades has witnessed China’s significant progress towards a professional and impartial judiciary through extensive judicial reform.145 However, the concept of an independent judiciary has been regarded as not compatible with China’s system of government and was openly denounced by China’s top judicial officials.146 In practice, the judicial process is still subject to extensive external influence from government officials, Party leaders as well as powerful individuals and high-profile companies.147 For projects with high investment and economic benefits, it is not surprising that the judicial review of EIA approval decisions receives external political and economic pressure. While Chinese courts still struggle to overcome this historical judicial weakness, eliminate political intervention, and establish proper review criteria, the current judicial policy of developing ‘service-oriented courts’ sends ambivalent signals to courts.148 Under this policy, courts are required to serve multiple functions beyond dispute resolution, including policy advocacy, education, and social control.149 Judges are encouraged to go beyond neutrality and legal formalism to facilitate the goal achievement of environmental governance.150 In some cases, they are expected to cooperate and coordinate with government agencies to address environmental crises.151 This new role of de facto ‘environmental regulator’ makes the boundary between administration and judiciary more blurred and makes it more difficult to oversee government decisions independently. An important strategy recently adopted by the Chinese central leadership to supervise environmental authorities is granting Chinese procuratorates, which in general serve as prosecutors in criminal cases, to file suits against local governments or their agencies for abuse of power or non-feasance in cases concerning environmental and natural resources protection.152 Before filing a lawsuit in court, a procuratorate shall put forward pre-litigation recommendations to an environmental authority and urge it to perform its duties in accordance with the law. While EIA litigation filed by concerned citizens has encountered various legal obstacles, practices show that the procuratorate has played a significant supervisory role in identifying EPBs’ EIA violations and improving the performance of their duties.153 Nonetheless, there are still many theoretical and empirical questions unresolved with regard to their legal status,154 litigation conditions, claims, burden of proof and institutional coherence with other types of litigation.155 Thirdly, the environmental public interest has been underrepresented in EIA’s public participation rules, therefore affecting the information collected and the legitimacy of EIA decisions. The term ‘public’ is complex and includes diverse interests, including those affected by proposed projects and those not affected but showing great concern.156 These two types of public entail different participation rules in terms of legal standing, interests represented, implementation mechanisms, and remedies.157 The essence of public participation is a process of balancing and coordinating various or even divergent interests.158 It is especially true for the EIA process which is entangled with plural and conflicting interests. For quite a long time, China’s public participation rules in EIA have primarily focused on how to improve the participation of interested parties on behalf of their private interests, without identifying the environmental public interest and providing corresponding participation mechanisms.159 This marginalization is primarily reflected by the absence of representatives of the public interest in the process.160 What is also missing are rules of addressing the conflicts inherent in the process and trade-offs between private and public interests.161 Current rules on public participation fail to provide integral information on the impacts of proposed projects and thus could not fully justify the legitimacy of EIA decisions. Some scholars have highlighted the missing environmental public interest and recommended designing a dual structure for public participation.162 Yet how this could be implemented still depends on institutional variables which are beyond the scope of EIA laws. For example, the first question is who is eligible and capable of representing the public environmental interest. In many cases, the residents potentially affected by proposed projects are well-placed to defend the public environmental interest, the protection of which could largely advance the protection of their private interests such as the property and health.163 However, in some cases, their motivation to participate is very complicated, and they face the risk of being ‘captured’ by project developers due to economic benefits or retribution.164 For instance, in the Nujiang hydropower project EIA, the affected public supported the project construction in exchange for higher land expropriation prices and migration compensation.165 Some argue that environmental NGOs are more qualified than local residents to fill such a large void and represent the public interest due to their neutrality, rationality, and competence.166 For instance, in the Nujiang case, it was persistent environmental NGOs that fought for the river’s ecology and finally brought the project to a halt.167 Environmental NGOs have played significant roles in providing scientific advice, identifying neglected interests, and bringing in transcendent perspectives into the process.168 They are also pluralizing the regulatory landscape traditionally occupied by administrative agencies by ways of creating standards, monitoring environmental impacts, and enforcing laws.169 Unfortunately, when NGOs enter into regulatory landscapes like the EIA system to voice public interest, they still encounter multiple legal and institutional constraints. Most environmental NGOs need to operate in a confined space delineated by the party-state.170 The party-state’s attitude and strategy towards deeper environmental NGOs’ involvement is very ambivalent, swaying between support and restriction.171 A prominent example of support is that they are empowered to pursue public interest litigation against polluters.172 By contrast, they have no legal standing as US NGOs to challenge EIA decisions of environment authorities. Conferring such legal standing on NGOs represents a broader means of ensuring accountability with respect to such decisions or omissions, and Chinese leadership is reluctant in creating such entitlement for fear of opening a ‘Pandora’s Box’ of rampant litigation.173 Moreover, the legal space for NGOs’ participation is increasingly restricted with the recent revision of the 2017 Chinese Foreign NGO Law and the regulation of domestic NGO registration.174 5. CONCLUSION After the leadership’s conceptual shift to recognizing that environmental protection is fundamentally a matter of regime legitimacy,175 the central authority under Xi Jinping’s presidency has demonstrated unprecedented concern for environmental protection. With authoritarian environmentalism, the central government enjoys the ability to go beyond particularistic interest groups and pluralistic opinions to tackle environmental issues,176 which further facilitates the adoption of radical, ambitious and, sometimes, innovative environmental policies and regulations.177 However, research finds that policy fertility does not necessarily lead to actually observable improvements in regulatory outcomes.178 On the contrary, reform leads to a system of vague, reduplicative and overly complex policies or regulations, without facilitating the development of a coherent framework.179 Recent EIA reform represents a significant shift of China’s environmental reform pattern when responding to environmental challenges: making new or rhetoric policies and regulations to reform China’s basic environmental instruments that are enforced daily. As a regulatory instrument, EIA covers a majority of environmental policy areas like air, water and soil, rather than focusing on a particular area. Different from a policy-centred approach, the implementation of which is largely contingent on the visibility of environmental issues and the economic impact of addressing them,180 EIA requires governments at various levels to develop a comprehensive capacity of making wise decisions among conflicting interests, and implementing multifaceted and complex environmental regulations.181 As a result, it is expected to produce a more positive influence on environmental governance, and therefore, environmental sustainability. EIA reform is still ongoing, and it is premature to conclude how effective or successful it is in practice. Yet we can analyse how legal reforms prescribed in laws and regulations contribute to the functional goal of EIA. Through examining three key aspects of EIA—governmental accountability, project developer’s compliance and public participation, this article finds that the Chinese government does aim to conduct functional EIA reform in many aspects. Regulatory improvement made in EIA reform is significant and critical in helping EIA to deliver better environmental decisions. However, reform also encounters various conflicts and constraints. The elimination of legislative loopholes and red tape is significant to improve the legitimacy of EIA laws, yet the simplified approval procedure and authority delegation to improve efficiency as well as overemphasis on ex-post monitoring likely undermines the preventative nature of EIA. The delegation of more discretion and decisive authority to MEE and local EPBs increases their capacity to contend with economic interests, yet could be compromised by weak judicial oversight and overdependence on political accountability. Uncapped penalties send deterrent signals to reckless project developers, yet the frequent use of campaign-style enforcement fails to provide positive incentives for project compliance. The legal development of plural enforcement approaches based on differed compliance motivations is notable, yet needs to be better understood and more regulatory attention. The affected citizens are given rights to information and participation, yet these rights have not turned into reality due to ambiguous implementation rules and an insufficient judicial access. The analysis of EIA reform should not be stopped here where the reform is proceeding concurrently with environmental governance reform and administrative reform, and within a pre-established institutional framework. Vertical environmental management reform is still in the pilot stage, the Chinese judicature is establishing its own logic of enforcing environmental laws, and NGOs are striving for legal standing and participation rights to represent the environmental public interest. The success of current EIA reform will largely rest on how these reforming programmes advance or contribute to the regulatory purpose of EIA. Footnotes 1 JB Ruhl and others, The Practice and Policy of Environmental Law (4th edn, Foundation Press 2017) 472. 10 State Council, ‘The Notification of Streamlining Administration and Delegating Power in Conjunction with the Plan to Transform Government Functions’ (12 May 2015) accessed 28 September 2019. 11 Chun Zhang, ‘Has China’s Impact Assessment Law Lost Its Teeth?’ (China Dialogue, 20 July 2016) accessed 28 September 2019. 12 Andrew J Nathan, ‘China Since Tiananmen: Authoritarian Impermanence’ (2009) 20(3) Journal of Democracy 40. 13 Hongxing Yang and Dingxin Zhao, ‘Performance Legitimacy, State Autonomy and China’s Economic Miracle’ (2015) 24(91) Journal of Contemporary China 64. In this article, performance legitimacy means that ‘a state’s right to rule is justified by its economic and/or moral performance, and by the state’s capacity of territorial defence’. 14 Youwei, ‘The End of Reform in China: Authoritarian Adaptation Hits a Wall’ (2015) 94(3) Foreign Affairs 2. 15 Alex Wang, ‘Symbolic Legitimacy and Chinese Environmental Reform’ (2018) 48 Environmental Law 737. 16 Jesse L Moorman and Zhang Ge, ‘Promoting and Strengthening Public Participation in China’s Environmental Impact Assessment Process: Comparing China’s EIA Law and U.S. NEPA’ (2008) 8 Vermont Journal of Environmental Law 287. 17 For example, Yan Wang and others, ‘Environmental Impact Assessment of Projects in the People’s Republic of China: New Law, Old Problems’ (2003) 23 EIA Rev 543–79; Zhao (n 4) 485. 18 For example, Yuhong Zhao, ‘Public Participation in China’s EIA Regime: Rhetoric or reality?’ (2010) 22 JEL 89. 19 Art 7 stipulated that ‘In rebuilding old cities or building new ones, assessments shall be made of the environmental impact on industrial, residential and afforestation areas, and on public utility facilities, in the light of meteorological, geographical, hydrological and ecological conditions … .’ 20 For example, Administrative Measures for Environmental Protection for Capital Construction Projects (1981). 21 Yun Ma, ‘Dynamics in Central–Local Division of the Authority of EIA Approval in China’ (2019) 31 JEL 34. 22 In order to obtain approval as soon as possible, project developers were more willing to entrust the EIA work to EIA companies formally or informally associated with environmental agencies that had the approval power. Environmental agencies also gave hints that premiums were necessary for expedited approvals. See, Yanan Wang, ‘The History and Prospect of Environmental Impact Assessment in China’ (2015) 2 Chinese Journal of Environmental Management 14 [in Chinese]. 23 Hailong Yang, ‘Remove the Official Cover of EIA Companies and Reform EIA for Better Prevention’ (Xinhua News, 26 May 2015) accessed 17 December 2019. 24 Thomas Johnson, ‘Good Governance for Environmental Protection in China: Instrumentation, Strategic Interactions and Unintended Consequences’ (2014) 44 Journal of Contemporary Asia 255. 25 The ‘Environmental Protection Storm’, a campaign-style environmental inspection carried out by State Environmental Protection Agency (SEPA) in order to detect legal violations, had revealed that it was very common for many projects to initiate construction without undertaking the EIA process, and then later re-submitted EIA documents if caught by environmental authorities. See, the Central People’s Government, ‘SEPA Announced That 82 Projects with Total Investigation of 112.3 Billion Yuan Had Serious Environmental Violations’ (10 January 2007) accessed 28 September 2019. 26 Alex Wang, ‘Environmental Protection in China: The Role of Law’ (China Dialogue, 5 February 2007) accessed 28 September 2019. 27 Wang (n 22). 28 EPL 2015, art 19 and 61. 29 State Council, REMCP (2017) Order No 682. 30 Bin Chen, ‘Should Veto Arrangement of EIA be Kept?’ (Southern Weekly, 31 July 2016) accessed 20 September 2019. 31 EIA Law 2018, art 31. 32 EIA Law 2018, art 19. 33 EIA Law 2018, art 32. 34 China Daily, ‘Necessary to Plug Environmental Impact Assessment Holes’ (7 August 2018) accessed 17 December 2019. 35 MEE, Measures for Public Participation in Environmental Impact Assessment (2018) Order No 4, art 14. 36 At the national EIA meeting in 2012, Wu Xiaoqing, vice-minister of the MEP, said: ‘we will give priority to the approval of some construction projects in the western region, including devolving some approval authority’. See, ‘Preferential Policy of EIA Approval Authority in Western China: Devolution’ (People, 13 January 2012) accessed 15 November 2019. 37 Bo Li, ‘Chinese NGOs Warn that Devolving EIAs to Local Officials is a Mistake’ (China Dialogue, 16 June 2013) accessed 25 November 2019. 38 After the institutional reshuffle in 2018, the MEE becomes the successor of MEP. The predecessor of MEP was SEPA before 2008. 39 MEP, The Announcement on Delegation of the EIA Approval for Certain Construction Projects (2013) Order No 33; MEE, The Catalogue of Construction Projects with EIA Statements Approved by the MEE (2019) Order No 8. 40 Provincial EPB of Shandong Province released the ‘Catalogue of Construction Projects for EIA Statements in Shandong Province’ in 2017. 41 Xiaozhong Chen, ‘Ningbo at Zhejiang Province Delegated 90% of Its EIA Approval Authority to Lower Level EPBs’ (Sina, 10 March 2015) accessed 28 September 2019. 42 Ma (n 21) 49–50. 43 Minzhen Xiong, ‘Fujian Province Promotes Power Delegation in the Area of Environmental Protection' (China Environment News, 27 July 2016) accessed 21 August 2020. 44 State Council, ‘Premier Li Highlights Role of Optimizing Business Environment’ (State Council, 19 June 2017) accessed 12 December 2019. In 2019, the State Council released the ‘Regulation of Optimizing Business Environment’, which enacts in 2020. 45 Shanghai Government, Implementation Opinions of EIA Reform in Shanghai (2019) Order No 24. 46 MEE, ‘The MEE's Press Conference in June 2019’ (28 June 2019) accessed 12 December 2019. 47 State Council, REMCP (1998) Order No 253, art 9; State Council, REMCP(2017) Order No 682, art 9. 48 Zining Jin, ‘Legal Observations on China’s EIA Veto Arrangement’ (2019) 12(2) Journal of China University of Geosciences (Social Sciences Edition)19 [in Chinese]. 49 ibid. 50 ibid 16. 51 Zhang (n 11). 52 EIA Law 2018, art 16. 53 EIA Law 2018, art 16. 54 According to the Catalogue, environmental sensitivity refers to the legally established protection areas of various levels and types and areas that are particularly vulnerable to the environmental impact of construction projects, including: (a) nature reserves, scenic spots and historical sites etc.; (b) basic farmland protection areas, grassland, forest park, geological parks etc.; (c) areas with residential, medical and health, cultural education, scientific research and administrative offices as the main functions, as well as cultural relics protection units. 55 MEE, Catalogue of the Classified Administration of EIA for Construction Projects (2018) Order No 1. 56 MEE, ‘80% Projects Do Not Need EIA Approval, Approval Efficiency Greatly Improved’ (Xinhua, 2 September 2018) accessed 17 December 2019. 57 Lingyu Kong, ‘The Delegation of EIA Approval Encounters Great Challenge’ (Caixin, 4 January 2016) accessed 17 December 2019. 58 REMCP (2017) art 11: ‘where a project falls under any of the following circumstances, the environmental protection administrative department shall disapprove the EIR or the EIF: (1) The type, site selection, layout, or scale, among others, of the construction project fails to conform to any law or regulation on environmental protection or any relevant statutory plan; (2) The environmental quality in the region where the construction project is located fails to reach the national or local standard for environmental quality, and the measures to be taken for the construction project fail to meet the management requirements for improving the regional environmental quality; (3) The pollution prevention measure taken for the construction project cannot guarantee that pollutant emission reaches the national and local emission standard, or no necessary measures have been taken to prevent and control ecological damage; (4) In the case of reconstruction, expansion or technological transformation of a project, no effective prevention measure has been put forward with respect to the existing environmental pollution and ecological damage of the project; (5) The EIR or EIF of the construction project has evident misrepresentation of the basic data and significant defects and omissions in content, or the EIA conclusion is unspecific and unreasonable.’ 59 MEE, Guidance on Further Standardizing the Application of Environmental Administrative Penalty Discretion (2019) Order No 42; Zhejiang EPB, Guidance on Further Standardizing the Discretionary Power of Environmental Administrative Penalties (2015) Order No 42. 60 Zining Jin, ‘Environmental Impact Assessment Law in China’s Courts: A Study of 107 Judicial Decisions’ (2015) 55 EIA Review 37. 61 The only related rule was released by the SEPA in 2005 to regulate its own EIA approval process. See, SEPA Construction Project Procedures for the Approval of EIA Documents (2005) Order No 29. 62 From 2005 to 2014, there have been only 56 cases concerning the judicial review related to EIA classification, a tiny number among millions of construction projects in this period. See, Xingchen Liu, ‘Uncertain Legal Concepts and Their Judicial Application in Classified EIA–Empirical Study of 56 EIA Cases’ (2016) 11 Environmental Pollution and Control [in Chinese]. 63 When revising the Catalogue, the MEE only circulated the exposure draft among provincial EPBs for consultations and suggestions. See MEE, The Letter about Soliciting Suggestions on the Amendment of the Catalogue (2018) Order No 30. 64 Zexuan Huang, ‘Public Opinion under the Framework of Modern Risk Management: Dilemma and Solution’ (2018) 12(5) Tsinghua University Law Journal 64 [in Chinese]. 65 eg Jing Lin v EPB of Suzhou High-tech Industrial Development Zone (2015), Basic Court of Gusu, Suzhou, Environmental Administration Division, First Instance, No 2; Wenbin Luo et al., v EPB of Xiangtan County (2015), Intermediate Court of Xiangtan, Administrative Division, Final Instance, No 87. 66 Jin (n 60) 40. 67 Lijuan Ruan, ‘Dilemma of and Solution to Judicial Review of EIA Approval’ (2017) 10 Politics and Law 159 [in Chinese]. 68 eg in He Congwu et al., v Shannxi EBP (No 115, 2014), the plaintiffs He Congwu et al. required the court to annul Shannxi EPB's EIA approval for procedural violations with regard to simplified notice content, flawed method of notice and inadequate notice date. The court judged that the procedural issue of not giving required days of public notice was minor, and this procedural flaw did not affect the legality of EPB decisions; In Jing Shen v Hubei EPB (No 178, 2015), the plaintiff claimed that the EPB’s EIA approval decision failed to conduct hearing and was illegal, the court ruled that ‘the act of not giving a hearing, which does not conform to the principle of due process, is a minor offence to the administrative procedure which does have no practical effect on the rights of the plaintiff”. 69 Ruan (n 67) 157. 70 Ma (n 21) 49; Jin (n 60)37. 71 Xiangbai He, ‘Chinese Local Governments to be Held Responsible for Their Local Environment: New Law, Old Problems’ (2019) 17(3) China: An International Journal 41. 72 ibid 44. 73 eg EPL 2015, art 26; Law of the People’s Republic of China on the Prevention and Control of Atmospheric Pollution 2018, art 4. 74 Kyoung Shin, ‘Environmental Policy Innovations in China: A Critical Analysis from A Low Carbon City’ (2018) 27(5) Environmental Politics 830–51. 75 Wang (n 15) 380. 76 MEP, Implementation Opinions of the MEP on Tightening Interim and Ex-Post Regulation of EIA of Construction Projects (2018) Order No 11. 77 Xinhua News, ‘Highly Intensive Environmental Inspection Becomes Normalized, Environmental Talks, Naming and Shaming as well as Accountability Are Accompanied’ (4 May 2018) accessed 17 December 2019. 78 This new Central Environmental Supervision Team or “green team” was set by President Xi Jinping in 2015 and directed by the MEP (now the MEE), intending to send a signal to China’s provinces that they had better comply with Beijing’s growing seriousness in tackling pollution. 79 MEP (n 76). 80 China News, ‘Central Inspections of Environmental Protection Exposed Problems in Eight Provinces and Over 3400 People Were Accountable’ (23 November 2016) accessed 17 December 2019. 81 MEP (n 76). 82 Barbara S Romzek and Melvin J Dubnick, ‘Accountability in the Public Sector: Lessons from the Challenger Tragedy’ (1987) 47(3) Public Administration Review 229. 83 Wei Cao, ‘The Phenomena of “Law Enforcement Deviation” in Environmental Regulation’ (2018) 6 China Legal Science 277 [in Chinese]. 84 Hanjuan Wang, ‘MEP: We Will not Make One-Size-Fits-All Efforts to Rectify Environmental Problems’ (Qiushi, 24 August 2017) accessed 17 December 2019. 85 Jiaqi Liang and Laura Langbein, ‘Performance Management, High-Powered Incentives, and Environmental Policies in China’ (2015) 18(3) International Public Management Journal 349. 86 Hon S Chan and David H Rosenbloom, ‘Four Challenges to Accountability in Contemporary Public Administration: Lessons from the United States and China’ (2010) 42(1) Administration and Society 28S. 87 Ciqi Mei and Margaret M Pearson, ‘Killing a Chicken to Scare the Monkeys? Deterrence Failure and Local Defiance in China’ (2014) 72(1) The China Journal 81. 88 Yun Ma, ‘Vertical Environmental Management: A Panacea to the Environmental Enforcement Gap in China’ (2017) 1 Chinese Journal of Environmental Law 52. 89 Zhao (n 4) 485; Zhiping Li and Xinke Li, ‘EIA Documents Quality Management as the Core of the EIA Regulation Legal System’ (2017) 19 Environmental Protection 15 [in Chinese]. 90 Zining Jin, ‘Comparative Study on the EIA Legal Systems in Mainland China and Taiwan’ 2017 (17) 3 Journal of China University of Geosciences (Social Science Edition) 26 [in Chinese]. 91 Benjamin van Rooij and others, ‘Centralizing Trends and Pollution Law Enforcement in China’ (2017) 231 The China Quarterly 586. 100 Jiahui Han, ‘MEE Forbids One-size-fits-all Approach to Enforce Environmental Laws’ (Xinhua news, 28 May 2018) accessed 9 December 2019. 101 Gary Becker, ‘Crime and Punishment: An Economic Approach’ (1968) 76(2) The Journal of Political Economy 169. 102 ibid. 103 Tom Tyler, ‘Building a Law-abiding Society: Taking Public Views about Morality and the Legitimacy of Legal Authorities into Account when Formulating Substantive Law’ (2000) 28 Hofstra Law Review 707–39. 104 Timothy Malloy, ‘Regulation, Compliance and the Firm’ (2003) 76 Temple Law Review 451. 105 Vibeke Lehmann Nielsen and Christine Parker, ‘Mixed Motives: Economic, Social, and Normative Motivations in Business Compliance’ (2012) 34(4) Law and Policy 432. 106 Søren C Winter and Peter J May, ‘Motivation for Compliance with Environmental Regulations’ (2001) 20(4) The Journal of Policy Analysis and Management 678. 107 Vibeke Lehmann Nielsen and Christine Parker, ‘Testing Responsive Regulation in Regulatory Enforcement’ (2009) 3 Regulation & Governance 378. 108 ibid 428. 109 Winter and May (n 106) 676. 110 Zhang (n 96)761. 111 Ma (n 21) 37–68. 112 Ma (n 88) 38. 113 Durwood Zaelke and others, Making Law Work: Environmental Compliance and Sustainable Development (Cameron May 2005) 57. 114 Malloy (n 104) 455. 115 Qian Zhu from Soochow University Law School has written several articles to analyze how to apply certain conflicting articles of EIA Law. See eg Qian Zhu, ‘The Application Dilemma of Article 31 in the EIA Law’ (2008) 97(3) Journal of Gansu Institute of Political Science and Law 82–89 [in Chinese]. 116 Chun Zhang (n 11). 117 Nectar Gan, ‘12,000 Officials Disciplined and 18,000 Companies Punished in China’s Sweeping Crackdown Against Pollution’ (South China Morning Post, 2 September 2017) accessed 17 December 2019. 118 State Council, Report on the Work of the Government (2019) < http://www.china.org.cn/chinese/2019-03/21/content_74593207.htm> accessed 17 July 2020. 119 Yuanchao Xu, ‘Two Sessions: Reform – Transform’ (China Water Risk, 18 March 2019) accessed 17 December 2019. 120 According to the art 20 of the EIA Law, relevant illegal information of the entity (project developers or EIA firms) which prepares EIA documents shall be recorded in the social integrity file. It will also be included in the national credit information sharing platform and the national enterprise credit information publication system for release to the public. 121 Zhao (n 18) 90. 122 Christopher Wood, Environmental Impact Assessment: A Comparative Review (Prentice Hall 2002) 277. 123 Zhao (n 18). 124 Johnson (n 24); Wenqi Dang, ‘How Culture Shapes Environmental Public Participation: Case Studies of China, the Netherlands, and Italy’ (2018) Journal of Chinese Governance 13. 125 EPL 2015 art 53; MPP 2018, art 1. 126 Deborah Seligsohn and others, ‘The Sound of One Hand Clapping: Transparency Without Accountability’ (2018) 27(5) Environmental Politics 804. 127 art 47 of 2004 Administrative License Law stipulates that ‘where an administrative license directly involves the significant interest relationship between the applicant and other persons, the administrative organ shall, before making a decision on the administrative license, inform the applicant and the interested parties of the right to request a hearing’. 128 Mang Zhu, ‘The Legal Status of Public Participation: The Example of Urban Project EIA’ (2019) 1 Administrative Law Review 14 [in Chinese]. 129 Ruan (n 67) 157; Jin (n 60) 39. 130 In 2017, the Friend of Nature brought a lawsuit against Gala Jiang Hydropower Station the construction of which could submerge the inhabitant of Pavo muticus, an endangered species. Gala Jiang Hydropower Station obtained its EIA approval in 2013, despite its deficiencies in both procedural and substantive aspects. 131 eg in the case All-China Environment Federation (ACEF) v Jinghua Group, the plaintiff’s claims include stopping emitting air pollutants, installing air pollution control facilities and compensating damages caused, all of which are local government’s environmental responsibilities. The court supported the plaintiff’s claims, being an important player in enforcing environmental laws. See Wang Xi, ‘The Legislative Order of Environmental Public Interest Litigation’ (2016) 6 Tsinghua University Law Journal 109 [in Chinese]. 132 Qi Gao, ‘Legislative Analysis of Public Participation in China's Environmental Decision-making: From the Perspective of Environmental Protection Law Amendment’ (2014) 4 Journal of Nanjing Technology University (Social Science Edition) 23 [in Chinese]. 133 Qingzi Xu, ‘Making EIA Real and Public Participation Genuine’ (China Economic Net, 6 August 2018) accessed 17 December 2019. 134 Johnson (n 24) 252. 135 Cheryl SF Chi and others, ‘Environmental Impact Assessment of Infrastructure Projects: A Governance Perspective’ (2016) 59(3) Journal of Environmental Planning and Management 393. 136 Alex Wang (n 15) 714. 137 Genia Kostka & Jonas Nahm, ‘Central–Local Relations: Recentralization and Environmental Governance in China’ (2017) 231 The China Quarterly 575. 138 ‘How Do the Environmental Agency Implement Vertical Management?’ (People’s Daily, 26 September 2016) accessed 30 November 2019. 139 Fei Wo and Yigang Xu, ‘What Are the Mismatches behind Accountability?’ (China Environmental News, 17 September 2014) accessed 17 December 2019. 140 Ran Ran, ‘Understanding Blame Politics in China’s Decentralized System of Environmental Governance: Actors, Strategies and Context (2017) 231 The China Quarterly 650. 141 See State Council, Regulation of Optimizing Business Environment (2019) Order No 722, arts 41 and 42. Shanghai City Government also releases the ‘Implementation Opinions of EIA Reform in Shanghai’ to respond to central government’s requirement for a better business environment. 142 Dianh Bear, ‘NEPA at 19: A Primer on an “Old” Law with Solutions to New Problems’ 1989 (19) Environmental Law Reporter 10060. 143 ibid 10068. 144 ibid. 145 Benjamin L Liebman, ‘China’s Courts: Restricted Reform’ (2007) 191 The China Quarterly 625. 146 Michael Forsythe, ‘China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince’ (New York Times, 19 January 2017) accessed 17 December 2019. 147 Liebman (n 145) 626. 148 eg the Opinions of the Supreme People’s Court on Comprehensively Strengthening Environmental Resources Adjudication to Provide Strong Judicial Guarantee for Promoting Ecological Civilization Construction, requires courts to give full play to their judicial function, and provide strong judicial safeguard to ecological civilization development. 149 Rachel Stern, ‘The Political Logic of China’s New Environmental Courts’ (2014) 72 The China Journal 54. 150 Yingzi Wu, ‘The Limits of Judiciary: Between Judicial Activism and Judicial Restraint’ (2006) 5 Chinese Journal of Law 118 [in Chinese]. 151 Stern (n 149) 58–59. 152 Administrative Procedural Law 2017, art 25. 153 Wanlin Wang and Dimitri De Boer, ‘China’s Prosecutors are Litigating Government Agencies for being Soft on Pollution’ (China Dialogue, 22 February 2019) accessed 16 December 2019. 154 Should the procuratorate act as an ordinary plaintiff, a legal supervisor, or both? See Tiantian Zhai and Yen-Chiang Chang, ‘Standing of Environmental Public-Interest Litigants in China: Evolution, Obstacles and Solutions’ (2018) 30 JEL 387–88. 155 Pei Zhang, ‘Five Theoretical Questions of Environmental Administrative Public Interest Litigation Brought by the Procuratorate’ (2018) 6 Journal of Law Application (Judicial Case) 74–78 [in Chinese]. 156 Yixiang Xu, ‘The Dualism of Public Participation Rights: An Analysis of Public Participation in Environmental Administrations’ (2018) 2 Journal of Central South University (Social Science) 64 [in Chinese]. 157 ibid. 158 Xixin Wang, Public Participation and Administrative Process: An Analysis of Concepts and Institutions (China Democracy and Law Press, 2007) 84[in Chinese]. 159 Qian Zhu and Chen Chu, ‘Public Participation in the EIA Should Highlight the Protection of Environmental Public Interest’ (2019) 2 Jianghuai Tribune 107–14 [in Chinese]. 160 art 5 of MPP encourages project developers to consult public outside the scope of EIA. In that case, it is not compulsory to consult the public on behalf of public interest. None it clarifies how public interest could be considered and protected. 161 Xu (n 156) 69. 162 ibid 63–71. 163 Zhu and Chu (n 169) 112. 164 Haisong Chen, ‘Reflection of the Environmental Protection Rights Discourse and the Transformation of Chinese Environmental Law’ (2015) 2 Studies in Law and Business 89 [in Chinese]. 165 Qi Qu and Gang Jian, ‘The Power that Protects Nujiang River’ (Sina, 22 July 2004) accessed 17 December 2019. 166 Richard Zhang Qing and Benoit Mayer, ‘Public Interest Litigation in China’ (2017) 1 Chinese Journal of Environmental Law 227. 167 Haidong Cao and Peng Zhang, ‘The Civilian Forces Behind the Sudden Suspension of Nujiang Dam’ (2004) 5 Economics [in Chinese]. 168 Yina Liu, ‘Friends of Nature and Public Interest Environmental Litigation’ (2019) 2 Chinese Journal of Environmental Law 226. 169 Benjamin van Rooij and others, ‘The Authoritarian Logic of Regulatory Pluralism: Understanding China’s New Environmental Actors’ (2016) 10 (1) Regulation & Governance 7. 170 ibid 6. 171 ibid 8. 172 EPL 2015, art 58. 173 Thomas Johnson, ‘Environmentalism and NIMBYism in China: Promoting A Rules-based Approach to Public Participation’ (2010) 19(3) Environmental Politics 436. 174 Under 2017 Chinese Foreign NGO Law, foreign NGOs must find government sponsors, register with the police instead of the department of civil affairs, and submit annual reports on their financing, among other requirements. Any violation could result in punishment ranging from asset confiscation to deportation. The police department is entrusted with extensive powers, such as summoning NGO representatives for questioning, conducting on-site inspections and seizing documents, making inquiries into, and possibly requesting the freezing of, bank accounts, ordering the suspension of activities, withdrawing the registration certificate, and listing them as ‘unwelcome’ if they are suspected to carry out illegal activities. This law does not provide for a right to appeal the police department’s decisions before an independent body. The ‘Regulation for the Registration and Management of Social Groups’, the main regulation regulating domestic NGOs, requires that NGOs register with the departments of civil affairs and find an administrative agency as the supervisory unit. The latter could be difficult since NGO’s activity more often is political sensitive and could be construed by the State as instigating political dissent. This ‘double supervision’ requirement is so strict and complicated that many NGOs are unable to register. 175 Genia Kostka and Chunman Zhang, ‘Tightening the Grip: Environmental Governance under Xi Jinping’ (2018) 27(5) Environmental Politics 778. 176 Bruce Gilley, ‘Authoritarian Environmentalism and China’s Response to Climate Change’ (2012) 21(2) Environmental Politics 289. In this article, ‘authoritarian environmentalism’ is defined as a public policy model that concentrates authority in a few executive agencies to improve environmental outcomes. Public participation is limited to a narrow cadre of scientific and technocratic elites while others are expected to participate only in state-led mobilization for the purposes of implementation. 177 Shin (n 74) 831. 178 ibid. 179 Gilley (n 176) 297. 180 Kostka and Nahm (n 137) 572. 181 Shin (n 74) 840. 2 Yun Gao, ‘Environmental Impact Assessment in Contemporary China: Challenges and Opportunities’ (2001) 8 (2) American Journal of Chinese Studies 185. 3 See Section 2 below. 4 Yuhong Zhao, ‘Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in China’ (2009) 49 Nat Resources J 485. 5 Canfa Wang and Wenxuan Yu, ‘The Challenge to EIA Law Brought by Yuanmingyuan Incident’ (2015) 5 Academic Journal of Zhongzhou, 85–88 [in Chinese]. 6 The 19th National Congress of the Communist Party of China has called to establish an environmental governance system that is led by the government, dominated by enterprises, and involved with social organizations and the public. As a result, Chinese central government has strengthened environmental protection laws, reshuffled its institutions, and diversified environmental policy instruments. See Cunkuan Bao and others, ‘The Reform of Environmental Impact Assessment in the New Period’ (2018) 46 (9) Environmental Protection, 7–11 [in Chinese]. 7 EIA companies are private entities providing consultation or assessment services in preparing environmental assessment statements. The old EIA Law stipulated that project developers shall employ EIA companies to assess environmental impacts. This requirement was removed by the new EIA Law amended in 2018. 8 Tianjie Ma, ‘China’s Environment in 2015: A Year in Review’ (China Dialogue, 23 December 2015) accessed 16 July 2020. 9 See Section 2 for more details. 92 Gu Gong, ‘Institutional Dilemma of EIA Storm’ (2009) 6 Studies in Law and Business 122 [in Chinese]. 93 Xiuyan Sun, ‘SEPA Minister Pan Yue: Turning Campaigning Style EIA Storms to Normalized Institutions’ (People, 9 May, 2007) accessed 9 December 2019. 94 Zhao (n 4) 489; Yana Jin and others, ‘Air Pollution Control Policies in China: A Retrospective and Prospects’ (2016) 13(12) International Journal of Environmental Research and Public Health 1234. 95 Johnson (n 24) 244. 96 Xuehua Zhang, ‘Implementation of Pollution Control Targets in China: Has a Centralized Enforcement Approach Worked’ (2017) 231 The China Quarterly 770–71. 97 Jianhua Huang, ‘29 of the 30 Projects Suspended in the EIA Storm Were Allowed to Resume Construction’ (Sina, 17 April 2005) accessed 9 December 2019. 98 van Rooij and others (n 91). 99 Nicole Ning Liu and others, ‘Campaign-Style Enforcement and Regulatory Compliance’ (2015) 75(1) Public Administration Review 86. ACKNOWLEDGEMENTS Special thanks go to Dan Cho and Jessica Ginsberg for the constructive suggestions when writing this article. I also would like to thank the anonymous JEL reviewers for their valuable comments. This research is funded by Young Scholars Program of the National Social Science Fund of China (Grant No. 20CFX063), Major Projects of the Key Research Base of Humanities and Social Sciences of the Ministry of Education (Grant No. 19JJD820004), and Fundamental Research Funds for the Central Universities. © The Author(s) 2020. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - In the Name of Legitimacy and Efficiency: Evaluating China’s Legal Reform on EIA JF - Journal of Environmental Law DO - 10.1093/jel/eqaa012 DA - 2020-12-24 UR - https://www.deepdyve.com/lp/oxford-university-press/in-the-name-of-legitimacy-and-efficiency-evaluating-china-s-legal-TOSYFUJmEi SP - 441 EP - 469 VL - 32 IS - 3 DP - DeepDyve ER -