Air quality levels in northern China repeatedly plummeted to record lows in the past month. In January, 17 provinces and municipalities, making up a quarter of China’s vast territory, were wrapped in toxic smog, with some 600 million people affected.

The situation in the capital city of Beijing, which is surrounded by seven of China’s most polluted cities - all located in neighbouring Hebei Province - was outrageous in particular. For weeks, 20 million Beijingers were repeatedly warned to stay indoors as pollution climbed to 30 to 45 times recommended safety levels.

The pollution in Beijing regularly exceeds 500 on an index that measures particulate matter in the air with a diameter of 2.5 micrometres, known as PM2.5. This density is described by the U.S. Embassy in Beijing as "Beyond Index.” Anything above 300 is considered hazardous, while the World Health Organisation recommends a daily level of no more than 20.

In contrast to the resolute policies that cleared up the same skies stunningly during the 2008 Summer Olympics, the government’s persistent failure to combat pollution during this winter has resulted in widespread public anger and media criticism.

Measures have been taken. In Beijing alone, 103 heavily polluting factories were temporarily shut down, and 30 percent of government vehicles were ordered to stay off the road Residents were even asked to set off fewer fireworks during the Chinese New Year period.

Despite all these measures, the smog enveloping Beijing and surrounding areas did not vanish until it was blown away by another cold front from Mongolia.

From a legal perspective, the government is authorised to take contingency measures in case of an "environmental incident", according to a series of enforcement regulations under the Environment Protection Law, and particularly the Measures on Information Report of Sudden Environment Occurrence, which came into effect May 1, 2011.

"To cope with an air quality crisis, contingency measures will be adopted, such as suspending or limiting the production of certain vehicles and limiting emissions and car usage," Environment Minister Zhou Shengxian told the state news agency, Xinhua.

Beijing’s proposed Regulations on Air Pollution Prevention and Mitigation reportedly aim for the "severest ever" restrictions, including keeping cars out of certain areas, heavy fines on, and forced shutting down of polluters, in addition to making it mandatory for drivers in a traffic jam to switch off their car engines, among others.

"New legislation is needed to authorise a more permanent policy to deal with the pollution," says Li Chen, a partner at Dacheng Law Offices, and one of the leading environmental lawyers in Shanghai.

Legislation

The issue does not only concern Beijing. In fact, 70 percent of China’s cities do not meet basic air quality standards.

Environmentalists and analysts suggest a complex mix of causes, ranging from an overreliance on heavy industry and an addiction to dirty coal, to poor enforcement of pollution laws, hundreds of thousands of new cars on the roads, and incentives for local officials to promote economic growth at all costs.

The Environment Ministry has set timetables for cities plagued by air pollution. In a "medium- and long-term roadmap", the cities with air pollution 30 percent above the national standard or higher should try to meet those standards by 2030. It is going to be a "long battle" in controlling the PM2.5 in China, says Minister Zhou.

Such a target would be impossible without effective enforcement, stress analysts. However, a draft amendment to the Law on the Prevention and Control of Atmospheric Pollution, issued in 2000, has been on the table for more than two years now.

After a decade of fast growth in China, the air pollution situation in the country has deteriorated greatly due to unprecedentedly massive industrialisation and urbanisation. The draft amendment encourages the use of clean-tech in the coal industry, requires compulsory emission reduction measures for coal-burning facilities, bans the construction of toxic pollutant projects in key zones, and urges the replacement of heavy polluting fuels with clean energy.

However, the draft, submitted in 2010 by the Environment Ministry, is yet to be included on the agenda of this year’s legislative review in March.

"I think it might have to wait until the completion of the revision of the Environment Protection Law, which was made in 1989," says Li.

Despite the resistance from polluting industries, this winter's pollution has been so severe that public resentment over government inaction has begun to boil over. A phone survey by the Environment Ministry last year showed that Chinese city dwellers were placed air quality at the top of their environmental problems.

"The smog will definitely accelerate the amendment to the Law of Prevention and Control of Atmospheric Pollution," Professor Chang Jiwen of the Institute of Law at CASS (Chinese Academy of Social Sciences) was quoted as saying.

"We should take effective measures to speed up the enhancement of our industrial structure, push for energy conservation, and build an ecological civilisation," Chinese Premier Wen Jiabao said on state television. "Act now, so that people don’t lose hope."

However, enforcement is far more difficult than legislation; indeed, it is the key problem.

"The laws mainly target at polluters. But the current situation is a chronic problem. It has built up over the years as a result of bad city planning and the lack of preventive measures in general," says Zhao Jingwei of Yingke Law Firm, one of the leading environmental litigators in China. "The problem cannot be solved by simply investigating and punishing some polluters."

Li from Dacheng adds that a lack of daily data collection also cripples the enforcement authorities. "We need to keep monitoring, measuring, and recording the detailed emissions on a daily basis in order to figure out the amount of regular pollution, and track the behaviour of major polluters. Otherwise, we would never know who is responsible for an incident," he says.

Public interest litigation

Under current legal framework, there are two primary ways of cracking down on pollution: Making polluters abide by laws and regulations that govern the maximum allowable emissions, and strengthening enforcement and punishment of polluters.

The third approach, says Zhao, is to mobilise the general public to take action against pollution, which could include increasing public awareness and setting positive examples. They can also initiate public interest litigation, which has been enabled by the latest Civil Procedure Law. The law came into effect Jan. 1.

”Certain organs and organisations may initiate lawsuits against conduct jeopardising the public interest, such as causing environment pollution or damaging the interest of a large group of people," says Article 55 of the Civil Procedure Law.

“At the moment, only organs and organisations prescribed by law can file lawsuits," notes Ma Yong,

head of the Environmental Legal Service Centre of the All-China Environment Federation (ACEF), a government-backed organisation that is among the eligible ones. The ACEF is already planning to file a lawsuit against a water polluter.

Who else qualifies under the law is not very unclear.

"The Civil Procedure Law only says 'relevant organs and organisations prescribed by law.’ In the case of environmental litigation on air pollution, it should be prescribed by the Environmental Law, which is still under revision. It means that the law prescription is not yet there," says Li. "It could be a big obstacle."
Other obstacles include uncertainty over how to identify the defendant and how to establish the causal relationship between the defendant’s pollution and the smoggy weather, according to Ma. These are difficult to pin down as pollution in one area may have originated elsewhere.

For instance, a quarter of the lethal PM2.5 emissions drifting across Beijing originate from the industrial heartland of Hebei Province which surrounds the capital, according to the China Academy of Sciences.
Hebei is responsible for more than a quarter of the national steel output - an industry that accounts for a quarter of the nation's total coal consumption - and is also a major cement producer. Seven of its cities, including capital Shijiazhuang, were listed by the Environment Ministry as being among the 10 most polluted cities in the country.

"You can't tell pollution not to come over to my territory - this really needs to be nationwide," says Ming Sung, chief Asia-Pacific representative with the U.S.-based nonprofit organization Clean Air Task Force.
However, the most difficult part, Ma says, is quantifying the damage caused by pollution.

For example, if a certain polluter exceeds sulfur dioxide emission limits by five times, to what extent is the air quality impacted? And by how much is this reduction in air quality affecting the surrounding environment, and damaging the health of people nearby?

"This has always been the most difficult point," says Ma.

Although the burden of proof may be reversed in environmental litigation, in practice, the plaintiff would also have to provide prima facie evidence first. Assessment by authorized institutions is required; however, the plaintiff and the defendant often present two widely diverging assessments, as the handful of eligible institutions vary greatly in terms of capability.

Blue Sky Foundation

Even if all the causalities are successfully proven, the compensation is not likely to be very high, says Li.
Ma is more optimistic, though. His ACEF litigations basically consist of two demands: Stop the pollution, and provide reasonable compensation. Besides, previous environmental cases overseen by the Legal Services Centre of ACEF have mostly seen satisfactory decisions, especially in the cutting down, discharging, and shutting down of the polluting facilities, he says.

To launch a public interest lawsuit, Ma's six-person department selects the most popular cause from an enormously long list of telephone and Internet complaints, conducts a preliminary probe, acquires evidence, and then commissions it to one of their 200 volunteer lawyers who has already been involved in the process right from the investigation stage.

The cost is normally borne by the ACEF, which tries to make the defendant pay litigation costs. 
"I hope our litigations can help bring about a foundation to support future public interest legal actions, such that more lawyers and organisations can take part," says Ma.

Successful precedents can be found in Japan. In the well known Nishiyodogawa public interest lawsuit filed in 1978, the 1995 court decision finally recognised the causality between the damage to the health of a total of 726 victims and air pollution due to heavy industry emissions by nine corporations and nitrogen oxide from motor vehicle exhaust on an expressway. The corporations, the national government, and the road operation company were laid with liability. The defendant corporations agreed to pay a huge settlement, part of which was donated by the plaintiffs to set up a foundation - Aozora Foundation or Blue Sky Foundation -  to help redevelop pollution-hit areas across Japan.

But in China, environmental litigation is still in its infancy. And it may not be the most efficient solution for all pollution cases given the time, money, and resources it involves. Individuals might need to step up and do their part.

"The recent smog would not have been this bad without some part being played by the public. People need to reconsider their lifestyle choices, like driving private cars or even smoking. Everybody needs to contribute a little." says Ma.

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