TY - JOUR
AU1 - Ma,, Yun
AB - Abstract In comparison with the dominant ‘consideration model’, the veto arrangement of environmental impact assessment (EIA) in China is a substantive regulatory feature that empowers environmental authorities to impinge on development activities. However, the anticipated efficacies thereof are compromised by the central–local division of EIA approval. The mismatch between high enforcement rates and prevalent non-compliance shows that EIA approval can be easily circumvented, especially at local levels. Recent mass, blanket devolution in a hasty manner, coupled with enthusiastic local responses in watering down EIA approval, raises serious concerns about its appropriateness and effectiveness. The tendency to deregulate by loosening environmental scrutiny and the reinvention of EIA procedures in light of project licensing processes impairs the veto effects of EIA approval. Without formal legislative empowerment in the central–local framework and individualised regulatory impact analysis, the current devolution approach is bound to endanger environmental quality and undermine the legitimacy of the veto arrangement. 1. INTRODUCTION Ever since its legalisation in the USA in 1969, environmental impact assessment (EIA) has become ‘the most widely emulated form of environmental regulation’ around the world.1 Associated with so-called ‘procedural features’,2 EIA is broadly perceived in academia as a procedural mechanism without dictating a particular result. Along with the expansive view of EIA’s functions, ie it is not only a tool to aid decision makers with necessary environmental information, but also capable of inculcating environmental values in decision-making culture through wider social learning, the boundary between procedural and substantive aspects of EIA is gradually blurred.3 Nevertheless, whatever potential EIA may have to shape final outcomes, it is seldom regarded as a direct regulatory mechanism or as requiring substantive prescriptions. Reform plans such as giving EIA a more determinative position in project planning are therefore proposed considering growing dissatisfaction over EIA’s effectiveness.4 However, when it comes to China, the substantive nature of EIA manifests itself. This requires a different way of story-telling. China formalised its EIA system as early as 1979 and later re-inforced it in the 1989 Environmental Protection Law (EPL). Until 2002, the Law on EIA was promulgated, which was later amended in 2016 and 2018.5 A ‘veto arrangement’ is adopted in the Chinese EIA regime which means that the failure in passing EIA approval before an environmental authority will definitely lead to the end of the project. This makes China distinct from the dominant procedural discourse of EIA in which decision-makers are merely required to take into account the information provided by EIA before final decision-making.6 In a word, EIA has a substantive regulatory feature in China which is absent elsewhere. Ostensibly, this weapon endows Chinese environmental authorities with more power, which can be used as a valve to hold back unsustainable development activities and a lever to influence other investment authorities. However, the expected advantages do not always show in practice. The consensus of the poor performance of EIA is broadly agreed among scholars, which is also demonstrated by a seriously degrading environment. Tension arises between the applauded substantive sanction of EIA and the anticipated efficacies thereof. The aim of this article is to examine how Chinese EIA approval, as a substantive regulatory mechanism, works in practice and explore the institutional barriers that may affect its performance. More specifically, my intention is to show that, among other things, central–local relations can be an influential factor in shaping the contours of EIA in China. It has to be pointed out at the outset that, due to space constraints, this article does not intend to touch on rich theories of central–local relations in environmental law.7 Instead, my aim is to identify how a central–local inquiry, ie how the power of EIA approval is distributed among different levels of authorities and what criteria are adopted in making such a division, contributes to the delivery of EIA service and environmental scrutiny in China. To illustrate the issue, the context of EIA enforcement and the tendency of contemporary reforms are set as below. China has a well-known poor record of compliance with environmental law, and EIA is no exception. Reasons for the lax enforcement of environmental law are well-documented by scholars, and among the most remarkable ones is local protectionism caused by the excessive power possessed by local governments.8 Centralisation has been always adopted as a strategy to cope with this problem. However, when the efforts of environmental centralisation are confronted with the campaign of ‘streamlining administration and devolving power’ (jian zheng fang quan) initiated by the State Council in recent years, these efforts are held back. Tension emerges between the applauded spirit of efficiency in public administration and a precautionary approach to the environment epitomised by EIA itself. EIA approval has witnessed a seemingly irreversible tendency of devolution after being integrated into the national strategy,9 which further brings in the issue of the legitimacy of the veto arrangement. Whether the veto effects of EIA should be stuck to while ongoing reforms release strong signals of deregulation becomes an issue for the future. The discussion proceeds as follows. Section 2 provides a conceptual framework of EIA approval and identifies how it interacts with project licensing by situating it in a comparative context. The aim is to deepen the discussion of the procedural–substantive dichotomy and reveal how the veto effect of EIA approval in China empowers the role of the environmental authority. Section 3 reviews how the central–local division in EIA approval evolved in a time span from the 1980s to the 2010s. It turns out that central–local division in EIA is a transformative process in which political, social and economic contexts are intertwined. Section 4 expounds on how the central–local division contributes to EIA performance and whether the current structure is desirable to deliver EIA. Examination of the enforcement records of EIA uncovers a mismatch between the high enforcement rate record and the prevalent lack of compliance. The finely defined boundary in the central–local structure can easily be circumvented and ignored. The current approach of mass, blanket devolution further stirs irrational competition among local jurisdictions in deregulation and watering down EIA approval. Pitfalls and institutional barriers of the current reform are identified, which are followed by conclusions and suggestions for future development. 2. CONCEPTUALISATION OF EIA APPROVAL In terms of the relationship between EIA and project licensing, generally speaking, there are two distinct models. The key difference is whether EIA is merely a procedural control mechanism or it can also have substantive prescriptions. Associated with the procedural features of EIA, the first is termed a ‘consideration model’ in which EIA is deemed one of the elements that need to be taken into consideration by the agency in charge of project licensing.10 This model is broadly adopted in the USA, the UK and Germany and has become the dominant one.11 Without dictating a particular result but prescribing the necessary process, this model receives ongoing criticism from scholars. From the very beginning, after EIA was introduced into law in the USA in the 1970s, Sax and his followers have expressed their disappointment on the toothlessness of the US National Environmental Policy Act that exalts procedure over substance.12 The second model is the so-called ‘veto arrangement’ adopted in mainland China, Taiwan and Japan.13 Ye Junrong summarises three characteristics of this arrangement in Taiwan: 1. A project licensing authority should not issue a project license …if an environmental authority has not completed its review of EIA documents or decided not to approve them, or else such a license should be invalidated; 2. Considerations contained in project licensing are divided into two parts: environmental considerations and other issues. The project licensing authority will make final decisions by taking into account all other considerations except environmental ones no matter whether other competent authorities have made similar reviews or opined on the project as the environmental authority has done. This results in EIA having “independent” effects in decision-making by “moving environmental considerations out” of the project licensing authority’s concern; 3. The review of EIA documents by an environmental authority is not to have a hard look at the project licensing authority’s decision on whether it has seriously taken the environment into account, but to check whether development activities satisfy minimum environmental requirements. Such review may produce results such as pass or fail.14 Similar arrangements are in mainland China. There are generally two types of EIA in China—plan-based and construction projects-based EIA. In terms of the latter, according to the degree of impact on the environment that a project may bring, different formats of EIA documents of construction projects are produced—an EIA report for significant impact, an EIA statement for mild impact and an EIA registration form for very little impact.15 A process of screening is adopted to decide which format should be prepared under different circumstances. The latest amendment of the Law on EIA in 2018 removes qualification and certification requirements on EIA bodies that were previously mandated by environmental authorities. A developer may entrust and pay EIA bodies and practitioners that it deems appropriate to formulate EIA reports and statements or the aforementioned documents by itself if it has the ability to do so. EIA registration forms are prepared by developers themselves.16 It needs to be clarified if EIA approval is situated in a ‘complex process’ of project planning and licensing. As pointed out by Tang and Luo, the feature of ‘multi-staged approvals’ is a typical problem of project administration in practice.17 Composed of a series of complicated and separated approvals, the procedural design of project licensing is frequently criticised for its redundancy and procrastinated nature. In terms of the temporal sequence, different approvals correlate with each other differently, sometimes in a parallel fashion and sometimes in the form of a relay race which further prolongs and complicates the whole process. A reported extreme example is that a construction project, from the very beginning to the end, has to go through more than 100 separate procedures with 20 departments and 53 offices involved, 109 stamps and seals affixed and 36 items of fee collection charged. The duration of the whole process of approval amounts up to 2,020 days with a minimum of 799 days even if a shortcut is selected.18 Among all types of approvals needed for construction projects, EIA approval is at the pre-construction stage. Article 22 of the Law on EIA first distinguishes between two groups of EIA documents and their finalisation procedures: EIA reports and statements are subject to a ‘graded EIA approval system’ while a EIA registration form is exempt from approval and subject to a record-filing system.19 In regard to the former, EIA reports and statements should be submitted by developers to be examined and approved by the competent environmental authorities, which are the Ministry of Environmental Protection (MoEP) at the central level and Environmental Protection Bureaus (EPBs) at provincial, municipal and county levels. Time limits are set for completion of EIA approval procedures, which are 60 days for an EIA report and 30 for an EIA statement.20 In the process of EIA approval, environmental authorities may invite and bear the costs of technical institutions to conduct technical appraisals of submitted EIA documents when they deem necessary.21 This model of letting one technical institution review another professional EIA body’s reports is criticised for its redundancy and for the consequence of enabling approval authorities to be irresponsible for their final decisions.22 In terms of the ‘veto effects’ of EIA approval, Article 25 prescribes that construction should not commence if EIA documents fail to undergo the EIA approval procedure or is disapproved after being examined in regards to process and quality. In practice, outcomes of the EIA approval procedure may include ‘pass’ (mostly with requirements of mitigation measures), ‘fail’, ‘send back for further improvement’, ‘suspension’, etc. In this sense, EIA approval is an identifiable type of ‘administrative licensing’ that is subject to both administrative reconsideration (an inner-bureaucratic remedy) and litigation (judicial review).23 Therefore, whether EIA approval falls within the scope of judicial competence is seldom debated in China. Comparing the two models aforementioned, it is undoubted that the model of ‘veto arrangement’ features a ‘thumb on the scale’ approach, in which environmental protection is given priority over other aspects and an environmental authority has a greater say in intervening in development decisions than in regards to the ‘consideration model’. China’s choice of endowing EIA with a substantive regulatory role is largely attributed to the simple fact that the environment in China has suffered unrecoverable derogation due to decades of rapid economic development, and environmental concerns are intentionally elevated to an unprecedented level of priority when the system of EIA is adopted.24 However, its disadvantages are obvious. First, environmental considerations are intentionally segregated from other relevant issues and cannot be taken into account by a project licensing authority from the very beginning. Balancing of different interests in a comprehensive manner is therefore absent.25 Secondly, since EIA is one of a very few, if not the only veto, mechanisms and takes place at an early stage of project licensing, public participation in EIA approval brings in all relevant interest appeals such as land taking and labour disputes in which environmental ones only take up a considerably small part. Environmental authorities suffer from excessive political and social pressure, shoulder all responsibilities that should have been shared by other authorities and sometimes become the scapegoat for other authorities for either approving or vetoing a project. This situation decreases the scientific rationality of the EIA process. In Taiwan, there is a fierce debate over whether the veto arrangement should be abandoned because some fear that converting to the ‘consideration model’ may bar EIA conclusions from judicial review and risk depriving the persons at stake of their rights to sue.26 In mainland China, sporadic voices of abandoning or limiting the veto effect of EIA are also present. Chen argues that endowing EIA with an overriding role neglects the complexity of public administration and its diverse goals including economic development, efficiency, property protection, and other issues. Furthermore, project EIA should not have veto effects because strategic EIA does not have similar effects in China.27 Although supporting its legitimacy, Tang proposes that the veto arrangement in China deviates from the broadly adopted ‘consideration model’ elsewhere and is discordant with the functions of EIA embodied therein, which is to channel information into decision-making, determine mitigation measures and establish the rule of reflexivity by inculcating environmental values in decision-making through social learning instead of setting command-and-control regulation.28 Tian suggests that the veto effect should be limited to those projects with mild and very little environmental impact. For those projects with significant impacts, the central and local governments should balance interests in a comprehensive manner and shoulder responsibilities of decision-making thereof.29 3. DIVISION OF EIA APPROVAL AUTHORITY IN A CENTRAL–LOCAL CONTEXT: A HISTORICAL REVIEW After clarifying the veto effect of EIA approval and identifying its substantive features, it is now time to set a central–local context and reveal how authority is divided among central and local organs. In China, environmental authority is shared by central and local governments. Various criteria in different statutes are adopted for dividing that authority.30 A general established principle is that central authority is in charge of nationwide environmental affairs, and local authorities are responsible for environmental management within their own jurisdictions.31 Central–local division of EIA approval has witnessed gradual and frequent changes since its adoption in the 1970s. After rounds of investment and public administration reforms in China, the whole system has now become complex and hierarchical, shaped by detailed rule-making practices. Four distinctive stages can be defined as below. 3.1. Project Approval and EIA Approval in Concord: Before 1986 EIA approval was originally established in 1979 and the ‘graded EIA approval system’ was first stipulated in the Administrative Measures on Environmental Protection of Basic Construction Projects of 1981. During this period, the system of EIA approval was dependent on the system of project approval and they shared the same set of criteria. In the 1980s, affected by the planned economy, all basic construction projects were included in national plans with governmental investment. There was no variation in terms of investors. The criteria for dividing EIA approval was in accordance with the one of approving the ‘planning assignment’ of construction projects, which was based on the scale of projects. Definition of scale, ie large-, medium- or small-sized projects, was mainly based on the scale of the investment amount. As a result, for those large- and medium-sized projects, since they were approved by the central government (State Council/State Planning Committee), the authority to approve the relevant EIA documents were correspondingly reserved for the central level, ie by the MoEP. For small-scaled projects, they were approved by provincial governments with EIA documents correspondingly approved by provincial EPBs. 3.2. Separation of EIA Approval and Highlighted Criterion of ‘Environmental Impact’: 1986–2002 EIA approval took its original shape by a rule issued by the then State Environmental Protection Committee (SEPC, now the MoEP) in 1986 (1986 Rule),32 which was subsequently polished by the Regulations on the Administration of Environmental Protection of Construction Projects (1998 Regulation) issued by the State Council, and further re-stated in the Law on EIA promulgated in 2002. In this continuous process, the central–local division of EIA approval obtained a more prominent role in the nation’s EIA agenda-setting. The 1986 Rule was issued as a direct response to the call of devolution made by the China Communist Party (CCP) in 1984.33 Under the call of empowering enterprises with more autonomy in decision-making, the graded EIA approval system was adapted to suit the ethos of the whole nation. Therefore, a dominant characteristic of the 1986 Rule was devolution of EIA approval to lower levels of authorities. For those large- and medium-sized projects, they were in principle approved by provincial EPBs and reported to SEPC for record purposes. Exceptions were made to those large- and medium-sized projects with the following features: trans-provincial construction projects; projects with special nature per se (nuclear facilities or high confidentiality, etc.) and super-large-sized projects. For those small-sized projects, the division of EIA approval was prescribed by provincial governments based on local regulations and rules. This meant that provincial governments were delegated with the power to have the final say within their own jurisdictions. EPBs below provincial levels were thus empowered, which was not the case before. While the authority of graded project approval was not changed, the one for graded EIA approval had adopted a different scenario. This meant that the graded EIA approval system had gradually separated itself from project approval. Article 11 of the 1998 Regulation largely followed the framework set in the 1986 Rule with the following two changes: first, the 1998 Regulation enumerated three types of projects with EIA approved by the MoEP and it abandoned the criteria of large-, medium- and small-sized projects used in the 1986 Rule. By doing so, different formats of EIA documents were formulated and approved in accordance with environmental impact rather than the size of projects. The criterion of ‘environmental impact’ was highlighted in marking the central–local division. Secondly, with regard to projects with EIA approval by the MoEP, the term ‘super-large-sized projects’ was replaced by ‘projects approved by the State Council or delegated ministries’ in the 1998 Regulation, which consequently established the principle of ‘EIA approval by project approval authority at according level’ (tongji shenpi). This 1998 framework directly found its way into the Law on EIA of 2002 in Article 23. 3.3. Under the Impacts of Investment System Reform and Diversified Criteria-Setting: 2002–12 Although legalised and stabilised by the Law on EIA in 2002, the graded EIA approval system experienced a significant challenge in 2004 due to tremendous changes occurring in the field of investment approval. The enactment of the Administrative Licensing Law in 2004 also necessitated an adaptation. In the early years, the then-State Environmental Protection Administration (SEPA, now the MoEP) made considerable efforts to strengthen its authority and unify the rules and requirements of EIA applicable to different types of investment on a national scale. In this process, emphasis of the criterion of ‘environmental impact’ became a useful and powerful tool for SEPA to showcase its posture. However, SEPA’s efforts turned out to be transitory and were soon suspended. Nevertheless, the method of adopting an inventory of approval was solidified which made the graded EIA approval system more specified, detailed, and complex. Ever since the 2000s, SEPA had attempted to amend the 1998 Regulation, particularly on EIA approval. In 2002, the SEPA issued a rule34 (2002 Rule) and detailed criteria-setting for the central–local division of EIA approval. Although the Law on EIA was newly promulgated then, the 2002 Rule already presented some deviation from the law. By distinguishing between projects financed by the state sector, which were further split into centrally and locally financed projects, and projects financed by the non-state sector, the Rule adopted a different set of criteria, ie sources of finances, to divide the power of EIA approval among different levels of central–local authorities (Table 1). Table 1. Central–local division of EIA approval in the 2002 Rule Table 1. Central–local division of EIA approval in the 2002 Rule The 2002 Rule was annexed by two inventories that detailed various projects of a special nature (nuclear etc.), with different types (highway, water, port etc.) and set the specific scale of investment thereof.35 In this way, the scope of SEPA’s authority of EIA approval was enumerated. Through this arrangement, inventory became a principal mechanism in making a ‘positive list’ of those projects that SEPA deemed ‘significant’. To those ‘insignificant projects’ that SEPA deemed devolvable to provincial governments, general principles were mandated including (1) those based on environmental impact, sources of finance, scale of investment, nature of projects, feature of construction per se, etc.; (2) and reservation of EIA approval for EPBs at the municipal level or above with regard to projects with serious environmental pollution (Article 5). This 2002 Rule diversified the overall scheme of criteria-setting and was a prelude to the more far-reaching influences exerted by the subsequent investment system reform. It left at least one issue open to debate, which was whether those projects exempt from project approval should also be exempt from EIA approval. According to the 2002 Law on EIA, SEPA approved EIA documents of those projects ‘approved by the State Council or delegated ministries’ (Article 23). To loosen investment control, some ministries, such as the State Planning Committee, had revoked approval of a bundle of project investments.36 However, SEPA insisted that these projects should have their EIA approved even though they were already exempt from investment approval.37 To showcase its attitudes and avoid circumvention of EIA approval, in 2004, SEPA issued a draft amendment of the 1998 Regulation and proposed to make EIA approval a pre-condition of all other following approvals.38 In its official explanations, SEPA stated that ‘due to the diversification of investors and the policy changes of exempting non-state financed projects from investment approval, many construction entities directly apply for enterprise registration, for acquiring land, and construction land use permits, etc. without going through EIA approval in advance. This caused serious damage to environmental quality’.39 Another of SEPA’s proposals was to amend the criteria-setting of the central–local division of EIA approval. Pointing out that environmental impacts were not always positively correlated to the scale or the amount of investment of a project, ie small-sized projects might have major environmental impacts and large-sized projects might have mild ones, SEPA intended to establish more scientifically sound criteria-setting and proposed two plans: one was to tinker with the framework established under the 1998 Regulation and update the inventory of projects subject to SEPA approval from time to time; the other was to abolish delegation to provincial governments in making specific local arrangements and make a comprehensive inventory delineating all levels of EIA approval authority on a national scale (Article 12). The latter plan revealed SEPA’s ambition in strengthening its authority of EIA approval. However, its efforts were stopped by reforms in 2004. Aiming at protecting the investment autonomy of enterprises and stimulating economy vitality, the Decisions on Reform of the Investment System (2004 Decision)40 made profound changes to the project approval system in China. To achieve this purpose, the usage of ‘administrative approval’ as a regulatory tool was strictly controlled and relevant procedures were simplified to decrease enterprises’ costs. A key change was that projects that were not financed by the government were exempted from administrative approval (shenpi). Instead, authorisation (hezhun) and a record-filing system (bei’an) were adopted for different projects that were enumerated in an accessory catalogue. Accordingly, the procedures for authorisation and record-filing were simplified in comparison with those for approval. However, this reform intensified the tension between the investment system and the newly enacted Administrative Licensing Law (ALL) of 2004. Under the ALL, exercises of powers such as approval, license, certification and permission, however termed in rules and practice, were subject to uniform regulation with strict procedures, conditions and liabilities for non-compliance. The distinction between approval and authorisation made by the State Council ran counter to, and muddled, the legal order set in the ALL because these two, in essence, fell into the definition of ‘administrative licensing’ and should be restricted in the same way.41 By trisecting the project approval system, the meaning of ‘approval’ used in previous EIA-related rules was thus narrowed. It was uncertain whether projects that were subject to authorisation and record-filing were subject to EIA approval. Against this background, the SEPA gave up its previous amendment efforts and issued a notice as a direct response (2004 Notice).42 It first emphasised that EIA approval should be conducted regardless of the investor body, the source of finance, nature of projects and scale of investment, once there was an impact on environment caused by construction. By stating this, SEPA made projects of authorisation and record-filing equivalent to those projects in the approval system. In contrast with the 2002 Rule it issued, SEPA abolished the criteria of the source of finance and investor body which it had previously established, reduced the threshold of investment amount of projects subject to SEPA’s EIA approval and highlighted the criterion of environmental impact as a dominant one in making the central–local division. Although SEPA tightened its authority over EIA approvals of projects subject to authorisation and record-filing, the legality of such an extension was challengeable. According to the ALL of 2004, SEPA was not entitled to ‘establish’ (sheding) a license in the form of ministerial rule (Article 14). Facing a legal challenge, SEPA began to actively lobby legislators to amend the EIA law. In March 2007, as a response to SEPA’s inquiries, the legislative interpretation of EIA Law was officially issued,43 in which SEPA’s previous interpretation and practices were given considerable deference: The term “approve” in Article 23 may include projects subject to both approval and authorization under the 2004 Decisions. For those projects subject to record filing that have significant impacts on the environment, the EIA documents of them can also be approved by SPA if they fall into the category of “projects with special nature”. To incorporate this interpretation, the MoEP issued a specific rule on graded EIA approval (2009 Rule)44 to replace the previous 2002 Rule. Dual criteria were explicitly set: (1) the level of authority of approval, authorisation and record-filing of construction projects; and (2) the nature and degree of environmental impacts caused by construction projects.45 In contrast with the MoEP’s transitory centralisation efforts, the whole system ushered in a new era in the following period in which devolution became the vogue. 3.4. In the Wave of Administrative Approval Reform: 2012 to Present The term of ‘administrative approval reform’ was firstly recognised in 2002 when the State Council announced revocation of the first batch of 789 approval items, ie particular licenses, permits, certificates, etc. Since then, several waves of such reforms have been launched. From 2010 till now, a more intensive wave arrived with 10 batches of approval items numbering above 1,200 that were either revoked or devolved.46 Scholars describe these waves as ‘campaign style reforms’,47 which the Chinese government has adopted frequently in different fields of reform in its transformation process. Ever since 2004, the theme of administrative approval reform had been shifted from ‘revocation and adjustment’ to ‘revocation and devolution’ of approval items.48 Devolution began to come into vogue. ‘Streamlining administration and devolving power’ became the ethos of contemporary public administration. EIA approval was no exception: after 2012 when the first batch of four items of EIA approval was devolved from the MoEP to provincial EPBs,49 significant changes had arrived. Three of their key features are identified below. The first feature is shrinkage of the scope of EIA approval. In 2015, the MoEP issued a new catalogue of classified management of EIA50 and 13 categories of construction projects were required to make an EIA statement or registration form instead of an EIA report as formerly mandated in the 2008 catalogue. The latest available statistics showed that the percentage of EIA reports among all types of EIA documents accounted for around 6.8% in 2012 (Table 2), and the change in 2015 was expected to largely decrease this rate. With the threshold of EIA being lowered, the scope of EIA approval also shrank. In the amendment of EIA Law of 2016, only the EIA report and EIA statement were subject to EIA approval, and the EIA registration form was subject to record-filing to be more cost-efficient for both authorities and enterprises (Article 22). This meant that fewer projects were subject to rigorous scrutiny in the form of an EIA report, and more than half of EIA documents were exempt from EIA approval. Table 2. Percentage of different formats of EIA documents (2001–12) Year Construction projects with EIA Total number EIA report (%) EIA statement (%) EIA registration form (%) 2001 193,793 2.4 26.6 71.0 2002 233,129 3.1 26.6 70.3 2003 278,118 2.7 26.8 70.5 2004 320,997 3.2 29.9 66.9 2005 314,038 3.6 32.7 63.7 2006 363,524 3.6 33.2 63.2 2007 277,927 5.5 42.7 51.8 2008 322,594 4.9 40.4 54.6 2009 321,203 6.4 42.0 51.6 2010 390,190 6.1 43.5 50.4 2011 436,188 6.6 42.2 51.2 2012 427,606 6.8 41.9 51.3 Year Construction projects with EIA Total number EIA report (%) EIA statement (%) EIA registration form (%) 2001 193,793 2.4 26.6 71.0 2002 233,129 3.1 26.6 70.3 2003 278,118 2.7 26.8 70.5 2004 320,997 3.2 29.9 66.9 2005 314,038 3.6 32.7 63.7 2006 363,524 3.6 33.2 63.2 2007 277,927 5.5 42.7 51.8 2008 322,594 4.9 40.4 54.6 2009 321,203 6.4 42.0 51.6 2010 390,190 6.1 43.5 50.4 2011 436,188 6.6 42.2 51.2 2012 427,606 6.8 41.9 51.3 Data is from China Environment Yearbook Editing Committee, China Environment Yearbook 2002-2013 (China Environment Yearbook Press 2002–2013) (latest data available). Table 2. Percentage of different formats of EIA documents (2001–12) Year Construction projects with EIA Total number EIA report (%) EIA statement (%) EIA registration form (%) 2001 193,793 2.4 26.6 71.0 2002 233,129 3.1 26.6 70.3 2003 278,118 2.7 26.8 70.5 2004 320,997 3.2 29.9 66.9 2005 314,038 3.6 32.7 63.7 2006 363,524 3.6 33.2 63.2 2007 277,927 5.5 42.7 51.8 2008 322,594 4.9 40.4 54.6 2009 321,203 6.4 42.0 51.6 2010 390,190 6.1 43.5 50.4 2011 436,188 6.6 42.2 51.2 2012 427,606 6.8 41.9 51.3 Year Construction projects with EIA Total number EIA report (%) EIA statement (%) EIA registration form (%) 2001 193,793 2.4 26.6 71.0 2002 233,129 3.1 26.6 70.3 2003 278,118 2.7 26.8 70.5 2004 320,997 3.2 29.9 66.9 2005 314,038 3.6 32.7 63.7 2006 363,524 3.6 33.2 63.2 2007 277,927 5.5 42.7 51.8 2008 322,594 4.9 40.4 54.6 2009 321,203 6.4 42.0 51.6 2010 390,190 6.1 43.5 50.4 2011 436,188 6.6 42.2 51.2 2012 427,606 6.8 41.9 51.3 Data is from China Environment Yearbook Editing Committee, China Environment Yearbook 2002-2013 (China Environment Yearbook Press 2002–2013) (latest data available). The second feature is devolution of EIA approval. In September 2012, four items of EIA approval were ordered by the State Council to be transferred from the MoEP to provincial EPBs. Following this order, the MoEP further volunteered to make similar transfers. In 2013, the MoEP issued a rule (2013 Circular)51 as a direct response to the central call, in which EIA approval of 25 categories of construction projects was transferred to provincial EPBs. In 2015, as a response to the updated catalogue of investment projects under the authorisation system in 2014,52 the MoEP updated the inventory of projects with EIA approval by the MoEP53 to replace the previous one in 2009. This time, the authority of EIA approval was further devolved to provincial EPBs for selected categories of projects, including thermal power stations, steam power stations, non-ferrous smelting, state highways, automobile production, large theme parks and so on. Provincial EPBs were ordered to adjust their respective inventories accordingly. Consequently, the whole framework of the graded EIA approval system ushered in a devolution era. The third feature is simplification and streamlining of procedures. In the pre-reform era, in terms of the whole construction timeline, EIA documents should be approved before submitting the Feasibility Study Report for projects subject to approval, before submitting a Project Application Report for projects subject to authorisation, and between accomplishment of record-filing and commencement of construction for projects subject to record-filing (Table 3).54 These procedures were followed and re-affirmed in the following years’ rule-making and practices until 2014 when moves towards streamlining administration were accelerated. Table 3. Comparison of procedures of construction project before and after reform in 2014 Approval system Authorisation system Record-filing system Procedures before reform Submission of project proposal to competent authority of development and reform Simultaneous procedures 2.1 Planning and site selection approval by competent planning authority 2.2 Pre-review of land/sea use by authority of land and resources 2.3 EIA approval by environmental authority Submission of Feasibility Study Report to authority of development and reform Planning permit, land use permit, etc. Commencement of construction Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land/sea use, etc. 1.3 EIA approval Review of Project Application Report by authority of development and reform (authorisation) Planning permit, land use permit, etc. Commencement of construction Record-filing at competent authority of development and reform Simultaneous procedures 2.1 Planning, land use permits, etc. 2.2 EIA approval Commencement of construction Proposed procedures after reform (2014) The status of EIA approval as pre-condition of project approval unchanged Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land /sea use Simultaneous procedures 2.1 EIA approval 2.2 Planning permit, land use permit, etc. 2.3 Authorisation Commencement of construction Simultaneous procedures 1.1 Planning, land use permits etc. 1.2 Record filing Commencement of construction Online EIA registration form Construction completion and commencement of project operation Approval system Authorisation system Record-filing system Procedures before reform Submission of project proposal to competent authority of development and reform Simultaneous procedures 2.1 Planning and site selection approval by competent planning authority 2.2 Pre-review of land/sea use by authority of land and resources 2.3 EIA approval by environmental authority Submission of Feasibility Study Report to authority of development and reform Planning permit, land use permit, etc. Commencement of construction Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land/sea use, etc. 1.3 EIA approval Review of Project Application Report by authority of development and reform (authorisation) Planning permit, land use permit, etc. Commencement of construction Record-filing at competent authority of development and reform Simultaneous procedures 2.1 Planning, land use permits, etc. 2.2 EIA approval Commencement of construction Proposed procedures after reform (2014) The status of EIA approval as pre-condition of project approval unchanged Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land /sea use Simultaneous procedures 2.1 EIA approval 2.2 Planning permit, land use permit, etc. 2.3 Authorisation Commencement of construction Simultaneous procedures 1.1 Planning, land use permits etc. 1.2 Record filing Commencement of construction Online EIA registration form Construction completion and commencement of project operation Table 3. Comparison of procedures of construction project before and after reform in 2014 Approval system Authorisation system Record-filing system Procedures before reform Submission of project proposal to competent authority of development and reform Simultaneous procedures 2.1 Planning and site selection approval by competent planning authority 2.2 Pre-review of land/sea use by authority of land and resources 2.3 EIA approval by environmental authority Submission of Feasibility Study Report to authority of development and reform Planning permit, land use permit, etc. Commencement of construction Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land/sea use, etc. 1.3 EIA approval Review of Project Application Report by authority of development and reform (authorisation) Planning permit, land use permit, etc. Commencement of construction Record-filing at competent authority of development and reform Simultaneous procedures 2.1 Planning, land use permits, etc. 2.2 EIA approval Commencement of construction Proposed procedures after reform (2014) The status of EIA approval as pre-condition of project approval unchanged Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land /sea use Simultaneous procedures 2.1 EIA approval 2.2 Planning permit, land use permit, etc. 2.3 Authorisation Commencement of construction Simultaneous procedures 1.1 Planning, land use permits etc. 1.2 Record filing Commencement of construction Online EIA registration form Construction completion and commencement of project operation Approval system Authorisation system Record-filing system Procedures before reform Submission of project proposal to competent authority of development and reform Simultaneous procedures 2.1 Planning and site selection approval by competent planning authority 2.2 Pre-review of land/sea use by authority of land and resources 2.3 EIA approval by environmental authority Submission of Feasibility Study Report to authority of development and reform Planning permit, land use permit, etc. Commencement of construction Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land/sea use, etc. 1.3 EIA approval Review of Project Application Report by authority of development and reform (authorisation) Planning permit, land use permit, etc. Commencement of construction Record-filing at competent authority of development and reform Simultaneous procedures 2.1 Planning, land use permits, etc. 2.2 EIA approval Commencement of construction Proposed procedures after reform (2014) The status of EIA approval as pre-condition of project approval unchanged Simultaneous procedures 1.1 Site selection approval 1.2 Pre-review of land /sea use Simultaneous procedures 2.1 EIA approval 2.2 Planning permit, land use permit, etc. 2.3 Authorisation Commencement of construction Simultaneous procedures 1.1 Planning, land use permits etc. 1.2 Record filing Commencement of construction Online EIA registration form Construction completion and commencement of project operation In December 2014, the State Council issued a special notice to reduce pre-approval items and simplify pre-approval procedures for projects subject to authorisation (2014 Notice),55 in which the following general principles for the cleaning-up of approval items were stated. First, no pre-condition can be established if the matter falls into the enterprises’ operational autonomy. Secondly, pre-approval items can only be established under explicit provision in law and administrative regulations. Thirdly, laws and administrative regulations should be amended or repealed once the pre-approval items they set turn out to be unnecessary. Fourthly, pre-approval items can be established if the problem can be solved by consulting other authorities’ opinions or by follow-up of ex post supervision. It was clear that this Notice was not only a policy document governing procedural matters, but also a proclamation for continuous legal reform. There were in total 30 pre-approval items established by all levels of legal rules then. Among them, the Notice declared that only two pre-approval items should be kept; these were approval of planning and site selection by urban–rural planning administration,56 and pre-review of land/sea use by land administration.57 EIA approval (including maritime EIA approval) would no longer be a preliminary condition of project authorisation with exceptions to significant and major projects. All other approval items except pre-approval ones, including EIA approval, should be implemented in a way termed ‘parallel approval’ (binglian shenpi), which meant that different approval items and project authorisation would be packaged and conducted simultaneously (Table 3). In this sense, the temporal sequence between EIA approval and project licensing is cut off. The veto effect of EIA approval only extends to the construction project entity, ie no commencement of construction before obtaining EIA approval, but no more to the project licensing authority. In other words, an investor may legally obtain a project license (authorisation of project) even though its application of EIA approval is thwarted. Accordingly, the amended Law on EIA of 2016 deleted the provision that the ‘project licensing authority should not issue project licenses before EIA approval’ (Article 25) to reflect the change of ‘parallel approval’. In 2016, the State Council further stabilised the rule that investors of projects subject to authorisation and record-filing would be exempt from submitting EIA approval before authorisation and record-filing.58 In a following rule issued by MoEP,59 the deadline for submitting online EIA registration forms was adjusted to the date of completion of construction and commencement of project operation instead of commencement of construction as previously stipulated. Undoubtedly, the veto effect of EIA approval has diminished at least with regard to those projects subject to authorisation and record-filing. Besides reinventing the role of EIA approval in the project licensing process, the procedures for EIA approval were simplified. For example, the amended EIA Law of 2016 deleted the previously stipulated procedure of preliminary review (yushen) of EIA documents by other competent authorities before the documents are submitted to environmental authority for approval. The original intent of this mechanism was to have other authorities help the environmental authority to hold back obviously ‘bad’ EIA documents and reduce the burden and error costs of the later. In June 2017, the State Council amended the 1998 Regulations, the first time since its enactment, in which the above-mentioned practices of simplification of procedures were stabilised. The amendment even made further moves by deleting previous requirements of licensing and certification of professional EIA bodies and deleting approval of completion inspection of construction projects,60 which were finally stipulated in the latest 2018 amendment of the Law on EIA, as stated above. All these moves heralded the arrival of an era of de-regulation and loosened environmental scrutiny. 4. ANALYSIS The historical analysis above shows that central–local division is a recurrent theme in EIA reform, which epitomises the nation’s political, social, and economic transformations. It is worthy of notice that such division is actually accomplished via rule-making in a quite clear, detailed, and enumerated way instead of the rough and vague way that law-making in China is often stereotyped as. Since clarity of criteria-setting in central–local division is not problematic, the key issue boils down to whether such division is desirable to reach the goal of delivering rigorous environmental scrutiny at all levels. To make this assessment, two inquiries are conducted. First, does EIA approval work and is the prescribed central–local division complied with in practice? If not, why? Secondly, considering the problems of EIA enforcement in practice, will the current devolution approach solve or further deteriorate those problems? 4.1. Perplexing Enforcement of EIA Approval The total number of EIA approvals by all levels of EPBs has more than doubled during the recent decade, from 193,793 in 2001 to 440,278 in 2015.61 However, the enforcement record is perplexing. On the one hand, the EIA enforcement rate has kept an astonishingly high record; on the other hand, the environment has witnessed significant degradation at the same time. A consensus has been reached among scholars on the poor performance of EIA in practice.62 This is to say that, though embedded with substantive regulatory force, EIA has not always yielded better environmental decision-making and improved environmental quality. How big is the gap and why is there such a mismatch? The enforcement rate of EIA (the number of projects with EIA approval/the total number of projects) was 56.82% in 1993 when such a statistic was first recorded in the China Environment Yearbook. A stable and sharp increase followed: the number had remained above 99% since 2004 and reached 99.9% in 2010. The enforcement rate had not been listed as an indicator since 2011 simply because it was too high. However, prima facie data could be easily challenged. For example, in 2003, six ministries including the then SEPA conducted an ad hoc environmental law enforcement campaign. It turned out that 51% of illegal polluting enterprises were newly built.63 In contrast, the EIA enforcement rate that year was as high as 98%.64 To cope with the prevalent phenomenon of ‘construction before approval’, in January 2005, the then SEPA initiated a campaign with the crackdown of a series of huge construction projects in which EIAs were not approved before construction started, which was praised as ‘EIA-Storm’.65 In 2008, the Standing Committee of the National People’s Congress launched another ad hoc EIA enforcement inspection campaign in which ‘construction before approval’ was still identified as the biggest problem.66 This phenomenon revealed that EIA enforcement was not as effective as it seemed to be. In terms of the central–local division of EIA approval, practices were not effective either. One prominent problem was ultra vires decision-making, ie EIA approved by lower levels of authority, which should have been reserved for a higher level. In 2006, according to a circular issued by Shandong provincial government, among 10 illegal EIA approvals conducted by Jining municipal EPB, eight of them were ultra vires: three should have been approved by SEPA, another four should have been approved by the EPB of Shandong province and the remaining one was an approval upon completion of a project, which should have been retained by Shandong EPB as well.67 Another problem is ‘disassembled EIA approval’ (chaixiang), the tactic of disassembling the whole project, that should have been approved by the higher level of environmental authority into smaller parts so that each part could be approved by lower levels of environmental authority, which is termed ‘salami slicing’ in Fisher, Lange and Scotford’s words.68 The most notorious incident is Tieben Iron Inc. in Jiangsu province. From May 2002 until the incident was exposed in 2004, Tieben had divided the whole project with a total production capacity of 8.4 million tons of iron into 22 small projects with the total amount of investment up to 10.59 billion RMB. Tieben submitted eight new projects for EIA approval respectively to Jiangsu provincial EPB and Changzhou municipal EPB. None of the eight projects obtained EIA approval and six of them had already commenced construction.69 The above-mentioned problems show that although detailed criteria in making a central–local division are set in numerous rules as previously presented, the boundary could still be circumvented and ignored. A crucial explanation for this is that the 2002 EIA Law stipulates where any enterprise fails to submit EIA documents for approval and illegally starts construction, it should be ordered to go through relevant approval procedures within a prescribed time period (buban, Article 31). Being severely criticised, this provision was later deleted in the 2016 amendment. Due to the existence of this provision, enterprises are in practice provided with chances to make up the procedure of EIA approval, which should have been conducted in advance. The EIA Law, therefore, fails to deter violations and encourages non-compliance.70 As a consequence, the data of the EIA enforcement rate collected afterwards can be astonishingly high, as shown above. The second reason is the so-called ‘too big to fail’ phenomenon. These large-sized enterprises normally have significant ability in mobilising local governments to approve their projects. Under the shield of local governments, these projects are to proceed at all events. Consequently, local EPBs or even the MoEP cannot effectively control or dare not to scrutinise these privileged enterprises. EIA procedures are disregarded or become window-dressing. In the above-mentioned ‘EIA Storm’ launched by SEPA in 2005, 30 super huge construction projects were identified, among which three were hydro-power stations constructed by China Three Gorges Project Corporation, a giant state-owned enterprise with the same administrative rank of SEPA.71 With the total investment up to 118 billion RMB, neither of these projects took EIA seriously, and EIA approval was therefore taken for granted. Although SEPA showcased its resolution to enforce the previously assumed toothless EIA law in this storm, 29 of the targeted 30 projects resumed construction after paying penalties.72 In contrast with these big enterprises, the EIA approval authority may have different concerns when other enterprises are at stake.73 For those medium-sized enterprises that do not have as much mobility as the large ones, EIA approval can be easily circumvented by paying penalties. These enterprises are rich enough to afford and therefore dare to start construction before obtaining EIA approval, which is dubbed as ‘hop on the bus first, then buy tickets’. This phenomenon is attributable to the loophole in the 2002 Law on EIA that caps the penalty as 200,000 RMB (Article 31), which is affordable to most medium-sized enterprises. It is much more cost-effective to break the law than to comply with it.74 Moreover, some enterprises may get EIA approval through the fabrication of data, bribery and other illegal methods. Due to the veto arrangement, EIA approval can be decisive and fatal to a project. Censured as the ‘biggest and most beneficial power’ of EPBs,75 EIA approval nourishes the soil of rent-seeking and environmental authorities can be easily captured. There are also some small enterprises, the so-called ‘underground factories’, doing illegal business without any sense of environmental law compliance.76 They do not even go through basic procedures for project approval, let alone EIA. EPBs do not have enough incentives or resources to monitor these enterprises’ behaviour on a daily basis. Another reason to explain the enforcement gap is that, as a part of the bureaucratic apparatus, some EPBs at local levels are assigned with the task of attracting investment, similar to other economic departments. For example, Jiaoling county EPB in Guangdong province declared online that ‘to projects in the scope of our investment attraction, the principle is “urgent treatment to urgent issues and special treatment to special issues” … with all environment-related procedures to be summarized and EIA approval period to be shortened. We do our utmost to satisfy investors’.77 In some extreme cases, local EPBs even lobby EPB at the upper level and the EIA body it entrusts to make way for enterprises and projects within their jurisdictions.78 In this context, EPBs may loosely enforce EIA requirements and approve EIA documents submitted without due diligence. 4.2. Critical Thinking of Devolution of EIA Approval The previous section shows that among all factors that give rise to the perplexing enforcement of EIA approval, local governments’ performance plays a decisive role if not the only one. It is sensible to note that centralisation has always been the mainstream way to solve environmental problems in China, such as the ‘vertical environmental management reform’ and the campaign of rounds of environmental supervision (ducha) initiated by the central government in 2015.79 This is also reflected in the newly amended EPL of 2015 by introducing the mechanism of substitution of sanctioning administrative penalty on polluting enterprises by EPBs at higher levels in cases of a lack of action by local ones.80 The recent tendency of devolution of EIA approval seems to be at odds with the tightened central control over environmental authority. How could this happen and what does it indicate? Seeking for answers to these questions, this section demonstrates that although it has the benign intent of enhancing efficiency, the current devolution approach contains considerable pitfalls and may undermine the legitimacy of the veto arrangement and endanger environmental quality in the end. First, before evaluating the current reform, how much power do local EPBs possess under the current central–local framework? Statistics show that local authorities have the primary power of EIA approval in terms of both number and the investment amount of projects. In 2003, EPBs below county level approved two-thirds of all EIA documents, accounting for over half of the total investment. In contrast, the MoEP only approved 0.1% of all projects in that year. Under the backdrop of devolution, the number of EIA approval by the MoEP sharply dropped from the maximum of 948 in 2005 to 191 in 2015, which accounts for only 0.04% of the total (Table 4). Table 4. Numbers and percentage of projects with EIA approved by different levels of authorities Year Construction projects with EIA approval (number/percentage) Total number EIA approved by MoEP (non-nuclear + nuclear) EIA approved by provincial EPBs EIA approved by municipal EPBs EIA approved by EPBs below county level 2003 278,118 334 / 0.1% 6, 290 / 2.26% 86,407 / 31.07% 185,087 / 66.55% 2004 320,997 431 / 0.1% 6, 663 / 2.1% 95,297 /29.7% 218,606 / 68.1% 2005 314,038 948 / 0.3% 7, 532 / 2.4% 106,619 / 34.0% 198,939 / 63.3% 2006 363,524 650 / 0.18% 362,874 / 99.82% 2007 277,927 461 / 0.17% 277,466 / 99.83% 2008 268,028 580 / 0.22% 267,448 / 99.78% 2009 248,962 395 / 0.16% 248,567 / 99.84% 2010 390,190 378 / 0.10% 389,812 / 99.90% 2011 533,911 239 + 28/0.05% 533,644 / 99.95% 2012 465,443 217 + 51/0.06% 465,175 / 99.94% 2013 476,266 217 + 51/0.06% 475,998 / 99.94% 2014 441,999 237 + 48/0.06% 441,714 / 99.94% 2015 440,278 152 + 39/0.04% 440,087 / 99.96% Year Construction projects with EIA approval (number/percentage) Total number EIA approved by MoEP (non-nuclear + nuclear) EIA approved by provincial EPBs EIA approved by municipal EPBs EIA approved by EPBs below county level 2003 278,118 334 / 0.1% 6, 290 / 2.26% 86,407 / 31.07% 185,087 / 66.55% 2004 320,997 431 / 0.1% 6, 663 / 2.1% 95,297 /29.7% 218,606 / 68.1% 2005 314,038 948 / 0.3% 7, 532 / 2.4% 106,619 / 34.0% 198,939 / 63.3% 2006 363,524 650 / 0.18% 362,874 / 99.82% 2007 277,927 461 / 0.17% 277,466 / 99.83% 2008 268,028 580 / 0.22% 267,448 / 99.78% 2009 248,962 395 / 0.16% 248,567 / 99.84% 2010 390,190 378 / 0.10% 389,812 / 99.90% 2011 533,911 239 + 28/0.05% 533,644 / 99.95% 2012 465,443 217 + 51/0.06% 465,175 / 99.94% 2013 476,266 217 + 51/0.06% 475,998 / 99.94% 2014 441,999 237 + 48/0.06% 441,714 / 99.94% 2015 440,278 152 + 39/0.04% 440,087 / 99.96% Data from the period 2003–10 is from Kang Dahua, ‘Intrinsic Mechanism and Effect of Environmental Governance Division Between Central and Provincial Governments’ (Ph.D. dissertation, Jinan University 2016); data from the period 2010–16 is from the MoEP’s reply to application of governmental information disclosure issued on 10 April 2017, which is at the author’s hand. Table 4. Numbers and percentage of projects with EIA approved by different levels of authorities Year Construction projects with EIA approval (number/percentage) Total number EIA approved by MoEP (non-nuclear + nuclear) EIA approved by provincial EPBs EIA approved by municipal EPBs EIA approved by EPBs below county level 2003 278,118 334 / 0.1% 6, 290 / 2.26% 86,407 / 31.07% 185,087 / 66.55% 2004 320,997 431 / 0.1% 6, 663 / 2.1% 95,297 /29.7% 218,606 / 68.1% 2005 314,038 948 / 0.3% 7, 532 / 2.4% 106,619 / 34.0% 198,939 / 63.3% 2006 363,524 650 / 0.18% 362,874 / 99.82% 2007 277,927 461 / 0.17% 277,466 / 99.83% 2008 268,028 580 / 0.22% 267,448 / 99.78% 2009 248,962 395 / 0.16% 248,567 / 99.84% 2010 390,190 378 / 0.10% 389,812 / 99.90% 2011 533,911 239 + 28/0.05% 533,644 / 99.95% 2012 465,443 217 + 51/0.06% 465,175 / 99.94% 2013 476,266 217 + 51/0.06% 475,998 / 99.94% 2014 441,999 237 + 48/0.06% 441,714 / 99.94% 2015 440,278 152 + 39/0.04% 440,087 / 99.96% Year Construction projects with EIA approval (number/percentage) Total number EIA approved by MoEP (non-nuclear + nuclear) EIA approved by provincial EPBs EIA approved by municipal EPBs EIA approved by EPBs below county level 2003 278,118 334 / 0.1% 6, 290 / 2.26% 86,407 / 31.07% 185,087 / 66.55% 2004 320,997 431 / 0.1% 6, 663 / 2.1% 95,297 /29.7% 218,606 / 68.1% 2005 314,038 948 / 0.3% 7, 532 / 2.4% 106,619 / 34.0% 198,939 / 63.3% 2006 363,524 650 / 0.18% 362,874 / 99.82% 2007 277,927 461 / 0.17% 277,466 / 99.83% 2008 268,028 580 / 0.22% 267,448 / 99.78% 2009 248,962 395 / 0.16% 248,567 / 99.84% 2010 390,190 378 / 0.10% 389,812 / 99.90% 2011 533,911 239 + 28/0.05% 533,644 / 99.95% 2012 465,443 217 + 51/0.06% 465,175 / 99.94% 2013 476,266 217 + 51/0.06% 475,998 / 99.94% 2014 441,999 237 + 48/0.06% 441,714 / 99.94% 2015 440,278 152 + 39/0.04% 440,087 / 99.96% Data from the period 2003–10 is from Kang Dahua, ‘Intrinsic Mechanism and Effect of Environmental Governance Division Between Central and Provincial Governments’ (Ph.D. dissertation, Jinan University 2016); data from the period 2010–16 is from the MoEP’s reply to application of governmental information disclosure issued on 10 April 2017, which is at the author’s hand. Secondly, what are the results of EIA approval at central and local levels, ie how many projects are approved and how many rejected by different authorities? The passing rate of EIA approval by the MoEP has declined from 91% in 2012 to 88% in the last 2 years (Table 5).81 Quite a number of large-scaled projects with a considerable amount of investment have been blocked by the MoEP. In contrast, the approval rates by local authorities are still considerably high. For example, the rates at Guangzhou municipal EPB during the period of 2009–13 range from 99.2% to 99.7%.82 Thus, it is still clear that local EPBs are inclined to give a green light and make way for construction projects. Table 5. Pass rate of EIA approval by the MoEP (2012–16) Year Total Pass Fail/Suspended (amount in billion RMB) Pass rate (%) 2012 264 240 24 (100) 90.91 2013 273 241 32 (118.4) 88.28 2014 263 237 26 (87.2) 90.11 2015 180 159 21 (117) 88.33 2016 95 84 11 (97) 88.42 Year Total Pass Fail/Suspended (amount in billion RMB) Pass rate (%) 2012 264 240 24 (100) 90.91 2013 273 241 32 (118.4) 88.28 2014 263 237 26 (87.2) 90.11 2015 180 159 21 (117) 88.33 2016 95 84 11 (97) 88.42 Source: MoEP, National Environmental Statistics Bulletin (2012–16) (2012 is the earliest year that relevant data becomes available). Table 5. Pass rate of EIA approval by the MoEP (2012–16) Year Total Pass Fail/Suspended (amount in billion RMB) Pass rate (%) 2012 264 240 24 (100) 90.91 2013 273 241 32 (118.4) 88.28 2014 263 237 26 (87.2) 90.11 2015 180 159 21 (117) 88.33 2016 95 84 11 (97) 88.42 Year Total Pass Fail/Suspended (amount in billion RMB) Pass rate (%) 2012 264 240 24 (100) 90.91 2013 273 241 32 (118.4) 88.28 2014 263 237 26 (87.2) 90.11 2015 180 159 21 (117) 88.33 2016 95 84 11 (97) 88.42 Source: MoEP, National Environmental Statistics Bulletin (2012–16) (2012 is the earliest year that relevant data becomes available). Thirdly, bearing in mind the primary role of local authorities in EIA approval, how do they respond to the current nationwide devolution campaign? Provincial authorities seem to be enthusiastic in making active moves towards devolution. The year of 2015 has witnessed a tumultuous wave of devolution from the MoEP to provinces. Some provincial EPBs further delegate EIA approval to municipal or even county level. For example, the provincial EPB of Ningxia announced that EIA approval of nine categories of industries including agriculture, water conservancy, new energy resources, transportation and others would be transferred from the provincial EPB to municipal and county EPBs, which in total accounted for 80% of all projects.83 Similarly, Gansu province made an 84% transfer to municipal and county EPBs in that year.84 At the municipal level, a clear devolution process is also occurring. In March 2015, Ningbo city in Zhejiang announced that more than 90% of EIA approvals were to be transferred from municipal to county levels.85 Zhangye city in Henan province also transferred more than 90% to county EPBs.86 Some provinces and municipals have made further steps to enlarge the scope of exemption of EIA approval. For example, in Fujian province, 42 types of infrastructure projects relevant to people’s livelihoods were exempt from going through EIA approval procedures, including road maintenance and pavement reconstruction. These reforms were applauded as a substantial improvement towards constructing a service-oriented government.87 Similarly, 45 types of construction projects in six major industries were exempt from EIA approval in Hebei province88; 60 types of construction projects in six major industries were exempt in Jinan city89; 99 types were exempt in Zhangye city and 50 types were exempt from going through expert appraisal.90 Most of the local authorities have openly promised to reduce time limits of EIA approval beyond what the law requires, i.e. 60 days for EIA reports and 30 days for EIA statements. Fujian provincial EPB promised to reduce the time limit to be below 60% of what was legally mandated.91 Wuhan municipality in Hubei province openly promised 15 days for approval of EIA reports and 10 days for EIA statements. In some extreme cases, time limits for the above were reduced to 5 and 2 days, respectively.92 A fever of pursuit of pure numbers has spread among local jurisdictions and a new form of ‘local competition’ has been created. In contrast with difficulties in reducing administrative approvals in other fields that are deemed to have ‘silver value’ and real benefits,93 local governments are willing and enthusiastic to make substantial moves to reduce the numbers of, accelerate, and simplify the procedures of EIA approval. Situated in the ethos of devolution, it seems difficult for the MoEP to initiate any re-centralisation effort. Instead, the MoEP itself has transferred considerable powers of EIA approval to local levels. Scholars express their cautious concerns about the large-scale devolution of EIA approval.94 For example, after Friends of Nature’s petition to fire the unqualified EIA body in a waste incineration project was rejected and Beijing EPB approved this project’s EIA, Li Bo, former director of Friends of Nature, questioned the devolution of EIA approval of waste incineration projects to provinces, and criticised the state for abrogating its responsibility in making a holistic and comprehensive consideration of the nation’s environmental quality in key industries and areas.95 In the following, predicaments and institutional barriers are identified, which might bring the current mass devolution process to a halt. The first is the triumph over environmental considerations at the local level. The problem of local protectionism has become a cliché where Chinese environmental law is concerned. Without an ideological change of local governments’ mindset in prioritising economic development, the more approval authority they get, the sooner EIA will be side-lined to make way for projects. This is verified by the simple fact of the difficulties which the MoEP has encountered in practice. In March 2015, before the MoEP transferred EIA approval of thermal power construction projects, among others, to provinces, it took its final chance to reject two EIA approval applications of ‘low-calorific-value-coal power generation projects’ (LCVC project) from Shanxi province. The MoEP explained in its decision that there was no precedent showing that super low emission could be realised in LCVC projects, and the environmental carrying capacity in Shanxi would be exceeded.96 Considering the scientific uncertainties involved, these two projects were selectively chosen to showcase the MoEP’s posture in scrutinising similar project proposals in other provinces. However, several months later, after Shanxi EPB obtained EIA approval power gifted from the MoEP, these two vetoed projects soon survived, and 23 similar LCVC projects got their free passes in the following seven months.97 The MoEP’s original intent went astray. It is commented that ‘there is no other way than devolution to guarantee continuous local GDP growth, especially to those provinces that have a high economic dependency on coal development, although the original intent of devolution is to simplify administration and enhance efficiency’.98 The second predicament is broad discretion in the process of EIA approval and the lack of judicial scrutiny. EIA requires considerable exercise of discretion and this is particularly the case in the process of EIA approval. It can hardly operate in a value-free manner and is never simply science-based technical assessment. In this context, procedural controls of the process of EIA approval become crucial. The procedures of approving EIA by central environmental authority are roughly stipulated in a rule issued by SEPA in 2005. Only recently, these rules were consolidated in newly amended regulations enacted by the State Council and thus become applicable to local EPBs.99 Considerations that environmental authorities have to take into account when approving EIA documents are enumerated including compliance with relevant laws, plans and environmental standards, the availability and effectiveness of mitigation measures, the authenticity of data, the clarity and reasonableness of EIA conclusions, etc. Although it seems that discretion is reduced when technological standards are at hand, it is not always the case in practice. Invited experts can be easily captured by an approval authority. In this way expert opinions can become a perfect defense for environmental authorities to not be accountable for ‘errors’ in decision-making. Taking the previous LCVC project as an example, although the MoEP expressed its concerns about the technological uncertainties, these concerns totally disappeared in the approval issued by Shanxi EPB.100 This shows that technological ‘uncertainties’ can be changed to ‘certainties’ if there are more overarching concerns of economic development. Generally, in reading local EPB’s EIA approval, some formatted wording and expressions stating compliance with laws, regulations and standards are commonly seen without further case-by-case explanations.101 Similarly, when a project fails EIA approval, a commonly stated reason for it is that the ‘EIA document is not of good quality’. The EIA body is an easily found scapegoat to hold back unwanted project applications. Inadequate disclosure of information, insufficiency in giving reasons for an administrative decision, the lack of transparency and public involvement in the approval process102 makes EIA approval discretionary and to some extent it becomes a ‘black box operation’. It is generally assumed that in reviewing discretionary decision-making, courts should show deference and respect the expertise of administrative bodies. However, it seems that Chinese courts go beyond deference and exercise ‘judicial abnegation’.103 By scoping 62 judgments centred on the legality of EIA approvals by different levels of environmental authorities in the timespan of January 2007 to November 2016, Ruan finds that there are only three cases that plaintiffs win with a winning rate of 4.8%.104 This rate is considerably lower than the average of administrative litigation, for example, 12.49% in 2014.105 All in all, judicial scrutiny on both the legality and reasonableness of EIA approval is lacking, which facilitates the potential abuse of discretionary power in approving EIA. The third predicament is the ‘race-to-the-bottom’ phenomenon and lack of independency and professionalism among EIA bodies, which risks the quality of EIA documents formulation and consequently the quality of EIA approval. In order to maintain a stable clientele in the market, many EIA bodies tend to serve the interests and needs of project investors to win contracts in the future instead of conducting EIA based on scientific and professional judgment.106 In Zhao’s words, the EIA service has become a ‘market-oriented and demand-driven’ business.107 The problem of ‘race-to-the bottom’ arises. Even worse, some EIA bodies conspired with project investors to fabricate data in order to reach a positive result of EIA approval for the proposed project.108 Moreover, similar to other intermediary institutions that provide services to facilitate administrative approvals, EIA bodies used to have close economic links with EPBs and were thus commonly dubbed as ‘intermediary organizations with a red hat’ (hongding zhongjie). Statistics in 2008 showed that 24.7% of Grade A EIA bodies and 48% of Grade B EIA bodies nationwide were subordinate to all levels of EPBs.109 It is worthy of notice that in accordance with the aim of reducing burdens on enterprises, the latest amendment of the Law on EIA in 2018 further loosened regulation on EIA bodies by removing their certification requirements and inviting investors to formulate EIA documents by themselves. This change necessitates a more mature market of EIA services and environmental friendly enterprises. In recent years, although the MoEP has strengthened the quality control of EIA bodies and cut off the economic link between EPBs and EIA bodies,110 there is still a long way to go for a mature market with sufficient competition to be formed. After all, Rome is not built in a day. More challenges await EIA approval authorities. Fourthly, while local EPBs shoulder considerable authority of EIA approval, they are not equipped with enough experts and accompanying delivery of EIA services by professional EIA bodies, since most of these resources are concentrated at provincial levels. In Zhangye city of Gansu province, there is only one registered EIA body and hardly any EIA experts. Construction entities have to wait in a queue for a half year to have EIA documents prepared, which takes a much longer time than the EIA approval procedure itself.111 Furthermore, some local EPBs are short-staffed and there is no regularly assigned staff in charge of EIA approval and such work becomes a part time job done by officers working in other positions.112 In this situation, it is hard to imagine how local EPBs can be incentivised to widely invite and pay for reputable experts to conduct more professional EIA appraisal before they approve EIA, not to mention that many jurisdictions have openly promised to finish EIA approval in a considerably short period, as previously stated. Both the quality of EIA documents and the effectiveness of EIA approval are thus in doubt. Fifthly, the current administrative approval reform has pitfalls due to its blanket simplification and devolution without paying attention to the nature of each item of approval per se, ie which item should be simplified, which item should be devolved and which should not. Wang insists that ‘regulatory impact analysis’ should be adopted by analysing the costs and benefits of a particular item of approval before establishing or changing it.113 Tang and Luo argue that over-emphasis on acceleration and simplification will decrease the function of procedures as a platform of integrating and balancing private and public interests.114 However, in an overwhelming atmosphere of devolution and tightened deadlines for delivering a satisfying record of investor-friendly environment and service-oriented administration, neither central nor provincial authority has the motive or effort to give a second thought to whether devolution is imperative or not. Negative impacts such as localisation and fragmentation of interests are neglected in making such blanket devolution decisions. As part of the reform, EIA approval is no exception. When the reform of administrative approval is driven into a contest of mere numbers (of revoked or devolved items of approval) among local jurisdictions, and the procedures of EIA approval are accelerated at an improper and impractical pace, the fundamental purpose of EIA to compel governments to give a hard look at the environment will be defeated for sure. 5. CONCLUDING REMARKS Full delivery of EIA service to optimise decision-making and mitigate potential environmental harm depends on a systematic construction in the particular contexts of a nation. The analysis above demonstrates that central–local relations can be an influential factor to affect the smooth functioning of the EIA system in China. Such influences stem from the very nature of EIA approval itself and the context of public administration as a whole. First, with the effects of substantive sanctions, the veto arrangement makes EIA approval a ‘hot power’ that local governments long for in the sense that it can be both a requisite stepping-stone to proceed with construction and a cloak to cast off unwanted burdens. In the veto arrangement, a decisive decision has to be made at an early stage of project licensing when conflicting interests are not fully revealed and requisite information is not sufficient. Therefore, the veto arrangement necessitates more expert involvement, full disclosure and sufficient communication of information, in comparison with ‘consideration model’. Whether these preconditions are satisfied decides the efficacies of the veto arrangement. However, there is a tendency of pan-politicisation of EIA approval especially when major projects that are of common concern are at stake. Politically crafted expert opinions and insufficient public participation make EIA a pro forma ritual and an environmental authority can easily become a scapegoat for non-environmental-friendly decisions. Furthermore, the enforcement deficit of EIA in practice dwarfs the expected efficacies and questions the rationality of this model. Secondly, due to the very nature of EIA approval, it is unavoidably encapsulated in general public administration reform. As bureaucratical apparatuses, EPBs at all levels are attuned to the ethos of the whole nation with a focus on pursuing efficiency through simplification and devolution. Unfortunately, in this inclusive process, the particularity of EIA approval as a regulatory mechanism in making the precautionary principle work is neglected. A ‘harder look’ at the environment is given way to realising the numerical targets in a competitive environment. Procedural renovation in the current wave of reform actually weakens the functional effectiveness of EIA by diminishing its veto effect instead of strengthening it. Tension arises between intensifying the substantive regulatory force of EIA and alleviating environmental burdens on enterprises. This in return questions the veto arrangement itself, ie how to balance environmental and other concerns in approving a project and how to integrate EIA into decision-making. With the deepening of the reform, the tension between the veto arrangement and the consideration model of EIA will manifest itself. In previous devolution practices in China, a vicious circle of ‘chaos occurs whenever there is devolution, centralisation occurs whenever there is chaos, and devitalisation occurs whenever there is centralisation’ is frequently seen.115 This is partly due to the fact that the administrative system heavily relies on self-reform instead of initiating such a reform based on the empowerment of law. With regard to the current wave of administrative approval reform, similar problems may occur without solid legislative foundation and backup. The phenomenon of formalism and campaign-styled reforms are examples.116 Can the devolution of EIA approval be divorced from repeating the vicious circle? There is no easy answer. The fact that the current reform is mainly shaped via policy-making instead of parliamentary empowerment has to some extent weakened the authority of formal legislation and the rule of law. The legitimacy of reforms is therefore challenged.117 Nevertheless, clarification needs to be made that the critique of the current reform is not to say devolution is wrong; instead, devolution can be justified because local authorities may have more knowledge about local enterprises and better able to engage in daily supervision, and the value of efficiency can also be enhanced.118 However, the pursuit of efficiency can be abused and environmental quality can be imperiled if devolution is exploited as a tool to cast off unwanted burdens by local governments. This is especially true when EIA approval is packed into a bundle with other approvals to be transferred without a meticulous regulatory impact analysis conducted in advance. Seeking for potential solutions, several general suggestions are made. First, although the veto effects are diluted by rounds of reforms, the basic structure of veto arrangement is by and large untouched seen in the latest legislative amendment. In the current EIA regime, supplementary measures need to be taken to counteract the tendency of its pan-politicisation and increase its legitimacy. For example, public participation may reflect the range of different interests, goals and stakeholders of a project and compel authorities to focus more on scientific persuasion in making veto decisions. Expanding the scope of EIA scoping to take social impact into account may ease the segregation between environmental and other concerns. Strengthening judicial scrutiny on EIA approval in both procedural and substantive aspects may make environmental authorities refrain from abusing their discretion in approving EIA. Secondly, under the current wave of simplification and devolution, a second thought needs to be given to EIA approval considering its particular attachment to scientific uncertainties and risk. Whether a downward transfer of authority is imperative should be based on the ability of the recipients to handle it instead of their willingness to accept it. This necessitates a case-by-case regulatory impact analysis, which is beyond the aim of this article. Nevertheless, several preliminary considerations are provided. First, there should be the retention of EIA approval at higher levels of authority when the degree of spillover effects and externalities of a particular item or type of projects is high. Secondly, there should be retention at the higher level when there are risks of a race to the bottom under a decentralised framework. Thirdly, there should be retention at the higher level if basic preconditions are not satisfied, such as the lack of sufficient market of EIA service and expertise in certain jurisdictions. I would like to thank Professor Elizabeth Fisher for her generous and invaluable help, guidance and support during the completion of this article. I am also grateful to the anonymous JEL reviewers for their constructive comments. This research is funded by the Junior Scholar Research Fund of the Ministry of Education in China (18YJC820048), Program for Young Innovative Research Team in China University of Political Science and Law (18CXTD10), and the Special Funds for Central Universities on Basic Scientific Research. Footnotes 1 Robert Percival and others, Environmental Regulation: Law, Science and Policy (7th edn, Wolters Kluwer Law & Business 2013) 895. 2 Elizabeth Fisher, ‘Environmental Impact Assessment: “Setting the Law Ablaze”’ in Douglas Fisher (ed), Research Handbook on Fundamental Concepts of Environmental Law (Edward Elgar 2016) 425. 3 Jane Holder, Environmental Assessment: The Regulation of Decision-Making (OUP 2004) 23 (identifying information theories and culture theories of EIA); Kalina Arabadjieva, ‘Vagueness and Discretion in the Scope of the EIA Directive’ (2017) 29 JEL 417, 422. 4 Stephen Jay and others, ‘Environmental Impact Assessment: Retrospect and Prospect’ (2007) 27 EIA Rev 287, 298. 5 The latest amendment was adopted on 29 December 2018 and became effective on the same day. The key change thereof was about qualification of EIA bodies, see Section 2 below. For a detailed review of the historical contexts of the EIA system in China, see Yan Wang, Richard Morgan and Matt Cashmore, ‘Environmental Impact Assessment of Projects in the PRC: New Law, Old Problems’ (2003) 23 EIA Rev 545. 6 See Section 2 below. 7 See generally, E Donald Elliott and others, ‘Toward a Theory of Statutory Evolution: The Federalization of Environmental Law’ (1985) 1 J L Econ & Org 313; Richard Stewart, ‘Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy’ (1977) 8 Yale LJ 1196. 8 See generally, Ma Xiaoying and Leonard Ortolano, Environmental Regulation in China, Institutions, Enforcement, and Compliance (Rowman & Littlefield Publishers 2000); Wang Canfa, ‘Chinese Environmental Law Enforcement: Current Deficiencies and Suggested Reforms’ (2006) 2 Vt J Envtl L 171; Erin Ryan, ‘The Elaborate Paper Tiger: Environmental Enforcement and the Rule of Law in China’ (2013) 24 Duke Envtl L & Pol’y F 183; Yun Ma, Conservation and Recreation in Protected Areas: A Comparative Legal Analysis of Environmental Conflict Resolution in the United States and China (Routledge 2016) 226–29. 9 See Section 4.2 below. 10 Holder (n 3) 237. 11 See US National Environmental Policy Act (1969), s102(C), 42 US Code § 4332; Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2017, Reg 3; Das Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment Act), art 12 (2010, Germany). 12 Joseph Sax, ‘The (Unhappy) Truth About NEPA’ (1973) 26 Okla L Rev 239; Philip Ferester, ‘Revitalizing the National Environmental Policy Act: Substantive Adaptations from NEPA’s Progeny’ (1992) 16 Harv Envtl L Rev 207; Jay and others (n 4) 290. 13 In Japan, a project licensing authority may veto a project merely based on EIA conclusions while environmental authority plays an advisory role, see Japanese EIA Law (1997), art 33. However, in mainland China and Taiwan, the veto power is possessed by environmental authority. This becomes the key difference among the three. 14 Ye Junrong, ‘Zhongke Judgment by Administrative Court that Defends the Dignity of EIA’ (2010) 10 Yuedan LJ 50 [in Chinese] (translated from original texts). 15 Law on EIA 2018, art 16. 16 ibid, arts 19 and 20. 17 Mingling Tang and Meiying Luo, ‘Empirical Survey and Theoretical Analysis of The Procedural Reform of Administrative Approval at The Local Level: A Case Study of The Field of Construction Projects’ (2016) 5 Legal Science 46 [in Chinese]. 18 ibid 48. 19 This distinction was not adopted until 2006 when the Law on EIA was amended. Before 2006, all types of EIA documents needed to be approved. 20 Law on EIA 2018, art 22. 21 State Council, Regulations on Environmental Protection of Construction Projects [2017], art 9. 22 Mingling Tang and Meiying Luo (n 17) 50. 23 Administrative Reconsideration Law 1999, art 6; Administrative Litigation Law 2014, art 12. Jin Zining, ‘Environmental Impact Assessment Law in China’s Courts: A Study of 107 Judicial Decisions’ (2015) 55 EIA Rev 36. 24 Tian Yiyao, ‘The Origin and Reform Path of the Veto System of EIA’ (2016) 38(2) Modern Law Science 110 [in Chinese]. 25 Ye Junrong (n 14); Liu Zongde, ‘Status Quo and Development of EIA in Taiwan’ (2013) 213 Yuedan LJ 33. 26 Jin Zining, ‘Comparative Study on the EIA Legal Systems in Mainland China and Taiwan’ (2017) 17(3) J of China University of Geosciences (Social Sciences Edn) 30 [in Chinese]. 27 Chen Bin, ‘Should Veto Arrangement of EIA be Kept?’ (Southern Weekly, Guangzhou 31 July 2016) <http://www.infzm.com/content/118594> accessed 31 December 2018. 28 Tang Mingliang, Jurisprudence and Techniques of Administrative Procedure for EIA (Social Sciences Academic Press 2012) 63–65. 29 Tian (n 24) 114. 30 See generally Dong Jianxin and Li Yelan, ‘Criteria-setting of Vertical Division of Administrative Authority: Empirical Analysis Based on the Authority of Administrative Approval’ (2010) 5 J of Jinan University (Philosophy and Social Sciences Edn) 39; Liu Zhixin, Configuration of Central and Local Administrative Power: A Case Study of EIA Approval of Construction Projects (Shanghai Jiaotong University Press 2014) 59–69 [both in Chinese]. 31 EPL 2015, art 10. 32 SEPC, Administrative Measures on Environmental Protection of Construction Projects [1986] Guohuanzi No 003 (26 March 1986). 33 Central Committee of CCP, Decisions on Reform of Economic System (20 October 1984). 34 SEPA, Rules on Graded Approval on EIA Documents of Construction Projects [2002] SEPA Order No 5 (1 November 2002). 35 SEPA, Inventory of EIA Approval of Centrally-Financed Construction Projects by SEPA (Inventory One) and Inventory of EIA Approval of Major Construction Projects Financed by Non-State Sector by SEPA (Inventory Two), annexes to the 2002 Rule. 36 Zhao Cheng, ‘State Planning Committee Revokes Approval of 5 Categories of Investment Projects’ (Xinhua News, 7 November 2001) <http://www.people.com.cn/GB/jinji/32/180/20011107/599943.html> accessed 31 December 2018. 37 SEPA was criticized for expanding its power via making the 2002 Rule. See Xiao Mingxin, ‘The Central-Local Division of Power from The Case Study of EIA Approval of Construction Projects: Experiences and Models’ in Symposium of Annual Conference of National Environmental and Natural Resources Law Society (2015) 465. 38 General Office of SEPA, ‘Explanations of the Draft Amendment of the Regulations on Administration of Environmental Protection of Construction Projects for Soliciting Public Opinions’ (22 July 2004) arts 11 and 37 <http://www.mee.gov.cn/gkml/zj/bgth/200910/t20091022_174128.htm> accessed 31 December 2018. 39 ibid. 40 State Council, Decisions on Reform of Investment System [2004] Guofa No 20 (16 July 2004). 41 For scholarly criticism, see Li Honglei, ‘Implementation of ALL: Predicaments and Solutions’ (2014) 35(5) Law Science Magazine 65; Zhou Hanhua, ‘ALL: Ideological Innovation and Practical Challenges’ (2007) 1 Chinese Legal Archives 163 [both in Chinese]. 42 SEPA, Notice on Strengthening Graded EIA Approval of Construction Projects [2004] Huanfa No 164 (2 December 2004). 43 Legal Affair Committee of Standing Committee of National People’s Congress, ‘Application of Law on Environmental Management of Construction Projects’ (21 March 2007) <http://www.npc.gov.cn/npc/xinwen/lfgz/xwdf/2007-05/16/content_365410.htm> accessed 29 December 2018. 44 SEPA, Rules on Graded Approval on EIA Documents of Construction Projects [2009] SEPA Order No 5 (16 January 2009). 45 Ibid, art 4. 46 Office of Administrative Approval Reform of State Council, ‘List of Ministerial Approval Items Subject to Revocation and Devolution Released by State Council Since 2013’ (People's Daily, Beijing 10 February 2017). 47 Shen Kui, ‘New Approach to Solving Problems of Administrative Approval Reform’ (2014) 2 Chinese J L 22 [Beijing, in Chinese]. 48 Wang Guisong, ‘Analysis on Simplification and Devolution in the Term of “Streamlining Administration and Devolving Power”’ (2015) 2 China L R 43 [Beijing, in Chinese]. 49 These four items include EIA approvals of non-trans-provincial(/municipal) alternating-current generating project at 330 and 500 kilovolt, telecommunications infrastructure projects that affect information safety and others. See State Council, Decision on Revocation and Adjustment of the Sixth Batch of Approval Items [2012] Guofa No 52 (23 September 2012). 50 MoEP, Catalogue of Classified Management of EIA for Construction Projects [2015] MoEP Order No 33 (19 March 2015). 51 MoEP, Circular on Devolution of EIA Approval on Certain Construction Projects [2013] Circular No 73(15 November 2013). 52 State Council, Directory of Investment Projects Authorized by Governments (2014) [2014] Guofa No 53 (18 November 2014). 53 MoEP, Inventory of Construction Projects with EIA Documents Approved by MoEP (2015) [2015] Gonggao No 17 (13 March 2015). 54 SEPA, Rules on Procedures of EIA Approval of Construction Projects [2005] Order No 29 (23 November 2005) art 24. 55 General Office of State Council, ‘Notice on Issuing the Working Plans of Reducing Approval Items, Standardizing Intermediary Services, and Implementing Online Parallel Authorization for Enterprises’ Investment Projects’ [2014] Guobanfa No 59 (10 December 2014). Although termed ‘pre-approval items’ in text, more accurately, it refers to ‘approval items before authorization of projects’. 56 Urban-Rural Planning Law of PRC 2015, art 36. 57 State Council, Regulations on Implementation of the Land Administration Law [2011], art 22. 58 State Council, Regulations on Administration of Authorization and Record-Filing of Enterprise Investment Projects [2016] Order No 673 (8 October 2016), art 6. 59 MoEP, Regulation on Administration of Record-filing of EIA Registration Form of Construction Projects [2016] Order No 41 (2 November 2016), art 9. 60 1998 Regulations, arts 6 and 20. 61 China Environment Yearbook Editing Committee, China Environment Yearbook 2002 & 2016 (China Environment Yearbook Press 2002, 2016). 62 Xiao Zhu and others, ‘Regional Restrictions on Environmental Impact Assessment Approval in China: The Legitimacy of Environmental Authoritarianism’ (2015) 92 J of Cleaner Production 100; Wang Jing, Comparative Study on EIA among China and Foreign Countries and District: Due Process of Law in the Field of Environmental and Developmental Decision-making) (Peking UP 2006) 236 [in Chinese]. 63 Wang, ibid 281. 64 China Environment Yearbook 2003 (n 61). 65 Wang Jingzhong, ‘“EIA Storm” Demonstrates China’s Commitment to Realizing Sustainable Development’ (Xinhua News, 4 February 2005) <http://www.china.com.cn/chinese/huanjing/777899.htm> accessed 31 December 2018. 66 Chen Zhili, ‘Report of the Inspection Group of SCNPC on Inspecting the Enforcement of the Law on EIA of PRC’, Congressional Report (27 October 2008) <http://www.npc.gov.cn/npc/xinwen/jdgz/bgjy/2008-10/27/content_1455372.htm> accessed 29 December 2018. 67 Shandong Provincial Government, ‘Circular of Ad Hoc Law Enforcement Inspection on EIA and “Three Synchronizations” in Shandong Province’ [2006] Luzhengzi No 166 (15 June 2006). 68 Elizabeth Fisher, Bettina Lange and Eloise Scotford, Environmental Law: Text, Cases and Materials (OUP 2013) 872. 69 General Office of State Council, ‘Circular on Investigation and Treatment of Illegal Construction of Iron Projects by Jiangsu Tieben Iron Inc.’ [2004] Guobanfa No 41 (30 April 2004). 70 Yuhong Zhao, ‘Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in China’ (2009) 49 Nat Resources J 502. 71 Wang (n 65). 72 Gan Jian, ‘29 Projects Suspended by EIA Resume’ (18 April 2005) <http://news.sina.com.cn/c/2005-04-18/04085676428s.shtml> accessed 29 December 2018. 73 Bao Cunkuan, ‘Reform of EIA Should Aim at Returning to Its Essence’ (2015) 3 Chinese Envtl Management 35 (Bao identified the relationship between EPBs and different types of enterprises) [in Chinese]. 74 ‘Penalty on Construction Before EIA Approval is Not Deterrent Enough on Enterprises’ (Xinhua News, 25 June 2009) <http://finance.ifeng.com/huanbao/hbyw/20090625/842446.shtml> accessed 29 December 2018. 75 Bao (n 73). 76 ibid. 77 Jiaoling EPB, ‘County EPB Makes Out the Plan of Investment Attraction’ (19 March 2010) <http://www.jlhbj.com/News_View.asp?NewsID=245> accessed 11 September 2017. 78 Ruan Lijuan, ‘Dilemma of and Solution to Judicial Review of EIA Approval’ (2017) 10 Politics and Law 155 [in Chinese]. 79 For discussions of ‘vertical environmental management reform’, see Ma Yun, ‘Vertical Environmental Management: A Panacea to Environmental Enforcement Gap in China?’ (2017) 1 Chinese J Envtl L 37. 80 EPL 2015, art 67. 81 The passing rate is not officially recorded in China’s Environment Yearbook. MoEP periodically releases its decisions of EIA approvals on its website every 15 days <http://www.mep.gov.cn/home/rdq/hjyxpj/jsxmhjyxpj/ypzxmgg/>. In annual National Environmental Statistics Bulletin, MoEP also releases the numbers of projects that pass EIA approval and the ones that fail <http://www.mep.gov.cn/hjzl/zghjzkgb/lnzghjzkgb/> both accessed 27 December 2017. There are minor differences between data from these two different sources, probably because some projects are confidential in nature and not calculated. This article uses the latter source for analysis. 82 Jin (n 26) 30. 83 Xia Jun, ‘Practical Predicaments of Devolution of EIA Approval’ Finance Magazine (11 January 2016) <http://magazine.caijing.com.cn/20160111/4051086.shtml> accessed 29 December 2018. 84 Gansu EPB, ‘Annual Report of Government Information Disclosure of Gansu EPB in 2016’ (24 March 2017) <http://www.gsep.gov.cn/info/1321/37757.htm> accessed 29 December 2018. 85 Chen Xiaozhong, ‘More Than 90% of EIA Approval is Devolved at Ningbo, Zhejiang’ (Xiandaijin News, 10 March 2015) <http://news.xinhuanet.com/yuqing/2015-03/10/c_127563459.htm> accessed 29 December 2018. 86 Wang Heng, ‘Sound Management to be Coupled with Devolution: Investigation of Pilot EIA Approval Reform in Zhangye, Gansu’ (Xinhua News, 22 March 2016) <http://www.gov.cn/xinwen/2016-03/22/content_5056250.htm> accessed 29 December 2018. 87 Xiong Minzhen and Li Liang, ‘42 Types of Projects are Exempt from EIA Approval in Fujian’ (China Environmental News, Beijing 3 December 2013) <http://www.cciced.net/xwzx/hfyw/201312/t20131203_83355.html> accessed 29 December 2018. 88 Hebei News, ‘Pilot Exemption of EIA Approval in Six Major Industries in Hebei’ (Hebei News, 4 November 2015) <http://hebei.sina.com.cn/city/csgz/2015-11-04/city-ifxkhcfn4343172.shtml> accessed 29 December 2018. 89 Jiang Ruili, ‘60 Types of Construction Projects are Exempt from EIA Approval in Jinan With Six Major Industries Involved’ (18 March 2014) <http://news.163.com/14/0318/11/9NK9EJR400014AEE.html> accessed 29 December 2018. 90 Wang (n 86). 91 Xiong and Li (n 87). 92 Shen (n 47) 21. 93 Ma Huaide, ‘Achievements, Problems and Recommendations to Administrative Approval Reforms’ (2016) 3 J Nat’l Acad Admin 14 [in Chinese]. 94 Gao Shiji and others, ‘From Multiple Management to Strict Management: Policy Recommendations on Environmental Regulation under the Context of Simplification and Devolution’ (2013) 17 Envtl Protection 30 [in Chinese]. 95 Li Bo, ‘It is Not Proper for the MoEP to Devolve EIA Approval’ (ChinaDialogue, 18 June 2013) <https://www.chinadialogue.net/article/show/single/ch/6108-Devolving-EIAs-to-local-officials-is-a-mistake-warn-Chinese-NGOs> accessed 31 December 2018. 96 Kong Lingyu, ‘Huge Challenges Faced by Devolution of EIA Approval’ Caixin Weekly (4 January 2016) <http://weekly.caixin.com/2016-01-01/100895184.html> accessed 31 December 2018. 97 ibid. 98 ibid. 99 SEPA (n 54), art 12; State Council (n 21), art 11. 100 Kong (n 96). 101 This can be easily seen in reading EIA approvals disclosed officially online. For similar views, see Ruan (n 78). 102 Yan, Richard and Matt (n 5) 566; Yuhong Zhao, ‘Public Participation in China’s EIA Regime: Rhetoric or Reality?’ (2010) 22(1) JEL 89. 103 See Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard UP 2016). 104 Ruan (n 78) 151. 105 China Law Yearbook Editing Committee, China Law Yearbook 2015 (China Law Yearbook Press 2015). 106 Yan, Richard and Matt (n 5) 566. 107 Yuhong Zhao (n 70) 503. 108 Mei Hong, ‘Problems of EIA Law in China and Their Solutions’ (2005) 4 Asia-Pacific Economy 93 [in Chinese]. 109 Sun Xiuyan, ‘EIA Bodies Will be Completely Decoupled from Administrative Agencies with Links of Interests Cut Off’ (China Daily, Beijing 5 November 2008) <http://news.sohu.com/20081105/n260443585.shtml> accessed 31 December 2018. 110 General Office of the State Council, ‘Notice of the General Office of the State Council on Clearing up and Regulating Intermediary Services under Administrative Approval by the Departments of the State Council’ [2015] Guobanfa No 31 (27 April 2015) (dictating decoupling intermediary institutions and approval authority). Up to December 2016, the decoupling work has been completed with 358 ‘red hat’ EIA bodies decoupled, 179 out of which disqualified and closed. See Jiang Mengwei, ‘Nationwide Decoupling of EIA Bodies and Environmental Authorities Completed on Time’ (Beijing Business Today, Beijing 5 January 2017) <http://money.163.com/17/0105/23/CA27534U002580S6.html> accessed 31 December 2018. 111 Wang (n 86). 112 ibid. 113 Wang (n 48) 42. 114 Tang and Luo (n 17) 57. 115 Li Keqiang, ‘Speech of Primer LI Keqiang on Mobilization Meeting on Transformation of Functions of State Council Organs’ (13 May 2013) (identifying the so-called vicious circle) <http://tfs.mof.gov.cn/zhuantilanmu/xzsp/spsx/201312/t20131218_1026534.html> accessed 29 December 2018. 116 Shen (n 47). 117 Wang Kewen, ‘Classified Reform and Establishment of Alternative Mechanisms of Administrative Approval’ (2015) 2 China Legal Science 22 [in Chinese]. 118 For arguments about decentralization of environmental decision-making, see generally Charles Tiebout, ‘A Pure Theory of Local Expenditures’ (1956) 64 J Pol Econ 416; Wallace Oates and Robert Schwab, ‘Economic Competition Among Jurisdictions: Efficiency Enhancing or Distortion Inducing?’ (1988) 35 J Public Econ 333; Keith Boeckelman, ‘The Influence of States on Federal Policy Adoptions’ (1992) 20 Pol’y Studies J 365. © The Author(s) 2019. 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TI - Dynamics in Central–Local Division of the Authority of EIA Approval in China
JF - Journal of Environmental Law
DO - 10.1093/jel/eqz001
DA - 2019-03-01
UR - https://www.deepdyve.com/lp/oxford-university-press/dynamics-in-central-local-division-of-the-authority-of-eia-approval-in-ru3yWWq0vY
SP - 29
VL - 31
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DP - DeepDyve
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