By Wu Qing King & Wood Mallesons’ Commercial & Regulatory group
金杜律师事务所作为Thomson Reuters环境法板块中国地区唯一合作律所，2016、2017、2018连续三年为其提供 “Environmental law and practice in China: overview”（下称“Q&A Guide”）。Q&A Guide是一份专门针对中国环境法律的指引，提供了对中国环境法律的高度概览，并且介绍了主要的环境实务问题，包括大气和水污染物排放，环境影响评价，固体废物和危险废物，土壤污染，以及交易中的环境问题等。金杜律师事务所每年都会结合最新出台的环境法律及环境监管趋势等内容，对Q&A Guide作出更新。目前2017/2018年度的Q&A Guide已更新，将以专题形式定期在金杜说法平台进行推送，旨在为企业提供对中国环境法律体系及实务的全方位指引。
Are there any requirements to carry out environmental impact assessments (EIAs) for certain types of projects?
Construction projects that may impact the environment must conduct an EIA and obtain an EIA approval. They cannot conduct construction without an EIA approval. After obtaining the EIA approval, a new EIA and its approval is required for any alteration, such as renovation or expansion of the project.
2.Permits and regulator
Permits. The government must administrate the EIA for construction projects. The construction unit must produce environmental impact reports and environmental impact statements, or complete environmental impact registration forms in accordance with the degree of the environmental impacts of the construction project.
Regulator. The environmental protection department under the State Council examines and approves the EIA documents of the following construction projects:
- Special construction projects, such as nuclear facilities and secret projects.
- Construction projects that cross the borders of provinces, autonomous regions and municipalities directly under the Central Government.
- Construction projects approved by the State Council or by the departments authorised by the State Council.
Beyond this, the provinces, autonomous regions and municipalities directly under the Central Government (direct-controlled municipalities) set the scope of authority for examination and approval of EIA documents for construction projects.
Where any construction entity, executive, main responsible person in the construction entity, government staff responsible for EIA document ratification or staff of EIA agencies violates the Environmental Impact Assessment Law of the People’s Republic of China, it is subject to penalties.
Where any construction entity unlawfully starts construction without obtaining approval for its environmental impact appraisal documents, both:
- It will be ordered by the administrative department of environmental protection to stop construction, and may be fined or asked to restore to the original state.
- The person in charge and other personnel of the construction entity who are held to be directly responsible will be given an administrative punishment.
The following penalties apply where an institution that provides technical services in making appraisals of environmental impacts for construction projects is remiss or practises fraud in the appraisal work, so that the appraisal documents are inconsistent with the facts:
- Degradation of the institution’s level of qualification, or revocation by the administrative department of environmental protection of the institution’s certificate qualifying it to carry out appraisals.
- A fine of up to three times the commissions.
- Criminal penalties, where a crime is committed.
Any staff member of the administrative department of environmental protection or any other department is subject to an administrative penalty if they:
- Seek private gains by illegal means.
- Abuse their power, neglect their duties or unlawfully grant approval to any environmental impact appraisal document of any construction project.
If a crime has been committed, that staff member can also be subject to criminal liability.
On 16 July 2017, the State Council issued a Decision of the State Council on Amending the Regulation on the Administration of Construction Project Environmental Protection. (amending the Environmental Impact Assessment Law), under which:
- The relevant administrative review and approval matters have been deleted.
- The environmental impact assessment procedure has been simplified.
- The environmental impact assessment approval requirements have been refined.
- Supervision during and after the environmental impact assessment has been strengthened.
- Punishment for breach of the has been increased;
- Information disclosure and public participation have been strengthened.
On 29 August 2017, the MEP issued Guidance on Environmental Impact Assessment of Hazardous Wastes for Construction Projects. It mainly provides the technical requirements for the environmental impact assessment of construction projects that may produce hazardous wastes.