By Paul Davies and Andrew Westgate
The Supreme People’s Court (SPC), China’s highest judicial body, issued a judicial interpretation on December 26, 2016 which defines 18 types of environmental crimes as “serious environmental pollution” and identifies 13 types of “serious consequences” under China’s criminal law, subject to increased penalties. The report is available here (in Chinese only). Notably, under the SPC’s interpretation, tampering with or falsifying results from environmental monitoring equipment, which previously would have been subject to civil penalties, is now deemed to be a serious crime. According to Yan Maokun, director of the Supreme People’s Court’s research office, “it’s the first time that falsifying monitoring data is considered a crime, which could lead to more effective deterrence and punishment of such violations.” The interpretations, which took effect on January 1, 2017, appear to confirm predictions that the government will move to strengthen enforcement of environmental law. “The revised Environmental Protection Law allows us to give managers administrative detention if they falsify data, but the new interpretations can do more to deter polluters,” stated Bie Tao, the Deputy Director of the Ministry of Environmental Protection’s Policy and Law Department.
Reliability of data has been a persistent problem for environmental regulators in China, including some instances of violations by regulators themselves. In October of 2016, for examples 5 officials of the local environmental protection agency in Xi’an were arrested for stuffing cotton into the equipment at an air-quality monitoring station to reduce the amount of pollutants detected. Similarly, in January of 2015 the local environmental regulator in Hanzhong, Shaanxi province was reported to have used tanker trucks to spray water around monitoring stations to lower pollution levels.
Under the SPC’s new interpretation, companies may now also be sanctioned based on money saved when not operating required pollution control equipment. Companies which fail to operate pollution controls as required by law may be criminally charged if the cost of operating the equipment would have been over $1 million RMB (USD $144,000). No time period to which this threshold applies is specified in the interpretation.
In addition, the interpretation clarifies the definitions of crimes involving importation of solid waste and transportation of hazardous waste, as well as guidance on aggravating (interfering with investigations) and mitigating circumstances (taking prompt action to contain or remediate a spill) to be applied in determining penalties.
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