How to Harmonize Community Autonomy and Administrative Responsibility in Environmental Decision-Making: Environmental Hearing Institutions in Wuhan
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How to Harmonize
Community Autonomy and
Administrative
Responsibility in
Environmental Decision-
Making: Environmental
Hearing Institutions in
Wuhan
Chang Jiwen∗
I. INTRODUCTION
A. Background
Urban resident communities in China are facing serious problems of oil smoke
and noise pollution, particularly loud singing and voices emanating from restaurant
karaoke rooms. In these urban resident communities, there are three main
environmental problems. First, many restaurants are located on the first floors of
∗
Chang Jiwen is currently an Associate Professor at the National Institute of Law, Chinese Academy of
Social Science, and a Professor of Faculty of Law at Shandong University of Science and Technology in
China. He is also a standing Trustee of the Chinese Research Institute of Environmental and Natural
Resources Law, and a special invited official of the Peking government. Professor Chang has given
many suggestions to the Chinese central government and state council. Many thanks to Christin Choi for
her help editing this article.
229230 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV residential buildings, or amid densely populated residential areas. The oil smoke and noise pollution discharged by these restaurants seriously harm the health of residents. Second, pollution-control equipments currently utilized by many restaurants do not work properly. Finally, many small restaurants operate without a managing license or a pollution-discharge license, or they are managed in the streets or outside of restaurants. These environmental problems are very serious and must be addressed. In the city of Wuhan, there are 5559 restaurants that trouble more than one million residents with oil smoke and noise pollution in 598 urban resident communities.1 Since 2000, the Wuhan Environmental Protection Agency (EPA) has accepted more than 1500 cases concerning this kind of pollution. As pollution is related to environmental human rights violations,2 to resolve the problem, the Wuhan government, the Wuhan EPA, and other administrative departments have strengthened environmental supervision over the past few years. Since 2001, about one-thousand restaurants have decreased their pollution discharge levels and have achieved national and local oil smoke and noise pollution discharge standards.3 Twenty-nine streets have been established as “street[s] on which restaurants have achieved oil smoke and noise standards.”4 The EPA, China’s Business Agency, and other administrative agencies have closed more than six hundred restaurants that adversely affected the environment.5 In 2003, the Wuhan government declared that placing new restaurants on the first floor of residential buildings was forbidden.6 The EPA also strengthened the management of its environmental examinations and approvals. Though these measures have reduced the overwhelming pollution problems, there are still difficulties in oversight and management. The problems of oil smoke and noise pollution especially impact the residents of these urban resident communities, because they experience the harms of pollution firsthand. In order to protect the human right to an environment free from toxic pollution,7 based on the theory that these residents must be able to exercise their autonomous rights in the EPA decision-making process, the Wuhan government enacted a proposal draft of a regulation entitled “The Hearing Institution on Affairs in Wuhan Urban Resident Communities” [Proposed Wuhan Regulation] in April 2004.8 The draft proposes that the legal autonomy of resident communities and the legal administration of government should be combined into one institution.9 Such institutions would initially be introduced into seventy-three urban central streets on an experimental basis. On each street, one community would serve as a test case. Significantly, the Proposed Wuhan Regulation proposing the institution of 1 See, http://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/ newscenter/2004- 04/07/content_1404793.htm. 2 JAN HANCOCK, ENVIRONMENTAL HUMAN RIGHTS: POWER, ETHICS AND LAW 22-23 (Burlington, Ashgate Publishing Company 2004). 3 See, http://info.hotelsupplies.hc360.com/html/001/009/013/19513.htm. 4 Id. 5 Id. 6 See, http://www.whfzb.gov.cn/ReadNews.asp?NewsID=287. 7 HANCOCK, supra note 2, at 107. 8 See, http://www.hb.xinhuanet.com/zhengwu/2004-04/06/content_1927216.htm. 9 See, www.politics.people.com.cn/GB/8198/32784/45491/3253200.html.
No. 1] Environmental Hearing Institutions in Wuhan 231
hearings on affairs in resident communities is first advanced by government
regulation in China. In addition, the regulation grants to these residents the right of
determining whether polluting restaurants may continue to operate.
B. The Proposed Wuhan Regulation
The Proposed Wuhan Regulation sets forth the following procedure for
conducting hearings in experimental resident communities.10 First, every resident
committee should investigate all restaurants discharging oil smoke and noise
pollution in its resident community. Second, each resident committee should hold a
hearing at which the polluting restaurants will be investigated.11 The organizing
members of the hearing should include resident representatives,12 commissioners of
resident community consultation and discussion committees, Chinese Communist
Party members in the resident community,13 and members of the resident committee.
All residents affected by oil smoke and noise pollution have the right to take part in
the hearing and the right to vote. Representatives of governmental departments such
as the EPA, other administrative agencies, and other residents would like to
participate may attend the hearing as non-voting delegates.
During the hearing, representatives and residents should discuss the harm of the
pollution discharged by the restaurant at issue, and any benefits conferred upon the
community by the restaurant. At the conclusion of the hearing, a vote should be
taken to determine the fate of the restaurant. The majority vote of residents
participating in the hearing will determine the final outcome: preservation, partial
adjustment, or closure of the restaurant. Finally, the resident committee should
publish the results of the vote within three days, and report the result to the EPA and
other relevant administrative agencies. If the vote is in favor of closing a restaurant,
the relevant administrative agencies will close down the restaurant in accordance
with environmental law. If the vote is for partial adjustment, the relevant
administrative agencies will order the restaurant to make the necessary changes.14
The execution of the Proposed Wuhan Regulation may be better illustrated by
relating the proceedings of a hearing held in the Caijiatian resident community in
April 2004.15 In the Caijiatian resident community, there were 2200 families and
10
Section 2 of the Organic Law of the Urban Residents Committees of the PRC (1989) defines an urban
residents committee as a “mass organization for self-government at the grassroots level, in which the
residents manage their own affairs, educate themselves, and serve their own needs.” Section 6 provides
in relevant part, “A residents committee shall generally be established for an area inhabited by 100-700
households on the basis of the distribution of residents and on the principle of facilitating their self-
government.” Finally, Section 7 and 8 provide that every residents committee should include one
chairman, several vice-chairmen, and commissioners of a residents community. These members should
be elected by all the residents of a residential area.
See, http://english1.peopledaily.com.cn/data/laws/detail.php?id=36.
11
China has been developing and improving its legal hearing system since 1998, which indicates the
Chinese government’s effort to increase transparency in government affairs.
12
Resident representatives include both those residents who live close to polluting restaurants and far
away from polluting restaurants. Those residents who live far away from the polluting restaurants are
not victims of pollution.
13
The fact that members of the Chinese Communist Party take part in the hearings means that the
Chinese Communist Party plays a large role in the entire hearing process.
14
See, http://news.xinhuanet.com/newscenter/2004-04/07/content_1404793.htm.
15
See, http://www.whepb.gov.cn/ file.asp?fileid=2210&filepath=labelpath.232 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV
seventeen restaurants, almost all of which were troubling residents with their
pollution. Thirty-three representatives with voting rights, including directors of
resident buildings, victims of pollution, and staff members of resident committees,
participated in the hearing. The emcee of the meeting was the director of the
resident committee. Representatives of the EPA, the Civil Administrative Office,
the City Management Agency, and other administrative agencies had no voting
rights, but attended and sat to the side of the meeting room. At the beginning of the
hearing, the Director of the district EPA in Jiangan, also a non-voting delegate,
presented and described integrated projects designed to cure the ills of oil smoke and
noise pollution in the Caijiatian resident community. The representatives discussed
the issues and ultimately voted that seven restaurants should be closed, two
restaurants could be preserved, six restaurants should make necessary changes in a
limited time period, and two restaurants should be transferred.16 The following day,
the resident committee published the results of the vote in a bulletin and delivered it
to the relevant departments of the Jiangan district government. Those departments
have now granted to the Caijiatian residents the power to supervise the enforcement
of the vote.
Residents are also able to participate in improving the quality of their
environment by determining whether new restaurants may be constructed within
their resident community. An individual seeking to construct a new restaurant must
first obtain the permission of the government. Before the government makes its
decision, a hearing must be held in the relevant resident community. If the hearing
results in a negative vote by voting delegates, the government may not permit
construction of the new restaurant to proceed. If the hearing results in a positive
vote by voting delegates, and the construction of the new restaurant is in compliance
with environmental law and the PRC Act on City Programming,17 the government
will permit construction of the new restaurant to go forward. However, the choice of
location and the overall arrangement of new or migratory restaurants will depend on
the results of the vote taken during the hearing.
II. PROGRESS OF WUHAN ENVIRONMENTAL HEARING INSTITUTION
A. Primary effect of the Proposed Wuhan Regulation
At the end of April 2004, two environmental hearings took place in Caijiatian
resident community of the Jiangan district and Dongting resident community of the
Wuchang district.18 These were the first two communities in which the Proposed
Wuhan Regulation was implemented. As of June 15, 2004, it is reported that
fourteen resident communities in the Jiangan district of Wuhan have completed their
hearings in which 288 restaurants were investigated.19 Sixty-eight restaurants
operating without a license have been closed; eight restaurants discharging serious
pollution have been ordered to close; 119 restaurants have been ordered to make
necessary changes; and fourteen restaurants have been ordered to transfer to other
16
Yangzi River Daily, May 1, 2004.
17
See, http://www.cin.gov.cn/law/main/law023.htm.
18
Yangizi River Daily, supra note 16.
19
See, http://www.96596.com.cn/models/sqdt00_info_show.aspx?id=7139.No. 1] Environmental Hearing Institutions in Wuhan 233
sites.20 As of September 5, 2004, environmental hearings have been held in six
communities of six streets in the Hongshan district of Wuhan.21 Twelve polluting
restaurants have been closed and thirty-four polluting restaurants have made
necessary changes.22 The majority of the decisions made during hearings have been
put into effect in resident communities, and the overall environmental quality of life
for these residents has improved thus far.
B. The Limits of Chinese Public Participative Legislation
The Constitution of the People’s Republic of China provides: “All power in
the People’s Republic of China belongs to the people . . . The people administer state
affairs and manage economic, cultural and social affairs through various channels
and in various ways in accordance with the law.”23 The Constitution also provides,
“All state organs and functionaries must rely on the support of the people, keep in
close touch with them, heed their opinions and suggestions, accept their supervision
and work hard to serve them.”24 These provisions are the fundamental legal bases
for the rights of public participation and supervision of national environmental
management. The scope of these rights is defined within the provisions of existing
environmental statutes and regulations. Currently, legal regulations concerning
public participatory and supervisory rights in national environmental management
are limited to the rights of prosecution, charge, and participation in environmental
impact assessment (EIA).25
The public’s rights to prosecute and charge are defined in the PRC 1989 Act
on Environmental Protection, which provides that “all organizations and individuals
have an obligation to protect the environment, and have the right to prosecute and
charge organizations and individuals who pollute and destroy the environment.”26
Because prosecution does not necessarily lead to a government investigation, it does
not always receive public recognition. In theory, the legal methods of prosecution
include not only informing the relevant national departments of illegal actions, but
also instituting civil and administrative litigation against violators.27 The Chinese
public could theoretically institute the same civil administrative citizen lawsuits as
do citizens of the United States. In reality, however, access to these kinds of
lawsuits is hindered by the PRC Act on Administrative Lawsuits of 1989 and the
PRC Act on Civil Lawsuits of 1991.28 For example, Section 2 of the PRC Act on
Administrative Lawsuits provides, “If citizens, artificial persons, or other
organizations consider that their legal rights and interests are trespassed upon by
20
Id.
21
See, http://www.whepb.gov.cn/multi/multitext.asp?fileid=2402&filthe EPAth=labelpath.
22
Id.
23
Constitution of the People’s Republic of China, Article 2, available at
http://english.peopledaily.com.cn/constitution/constitution.html.
24
Id. at Article 27.
25
See, http://www.iolaw.org.cn/paper/paper200.asp.
26
This is also in accordance with provisions in the PRC Act on Environmental Protection, the PRC Act
on EIA, the PRC Act on Water Pollution Control, and the PRC Act on air Pollution Control, and the
PRC Statute on Managing Environmental Protection on Constructive Projects.
27
WEI DINGREN, CONSTITUTIONAL SCIENCE 181 (Peking University Publishing, 1999).
28
Available at http://www.molss.gov.cn/correlate/xzssF.htm and http://www.law-
lib.com/law/law_view.asp?id=7535.234 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV
administrative agencies or their idiographic administrative actions, they can institute
lawsuits in courts according to this law.”29 Plaintiffs must be citizens, artificial
persons, or other organizations that have direct interests in relation to idiographic
administrative actions.30 The term “direct interests” indicates that the plaintiff has
legal rights and obligations in relation to idiographic administrative action.31 The
term “legal rights and obligations” means that the plaintiff should be the owner of
legal material rights prejudiced by administrative action, and that these rights should
be owned or taken only by the plaintiff.32 However, according to traditional civil
law, many facets of the environment, such as clean air and clean seawater, are
considered common-use or publicly-owned property.33 For example, rivers are
owned by the nation; therefore, no single individual or organization in China has an
independent right of use or possession.34 Thus, according to the PRC Act on
Administrative Lawsuits, in the face of non-objective administrative actions that
harm the public environment but do not harm a citizen’s right independently, the
public has no right to institute an administrative lawsuit.35 The PRC Act on Civil
Lawsuits contains the same premise.36
The public’s right to participate in EIA is defined in section 5 of the PRC Act
on EIA of 2002, which provides that “the nation encourages relevant organizations,
specialists, and the public to participate with the EIA in propriety models.”37 Section
11 provides as follows:
As to special programs which may produce negative environmental
effects and which relate directly to public environmental rights and
profits, before a special program draft is sent out to . . . for
examination and approval, the program-writing agency should hold
a demonstration meeting, a hearing meeting, or some other measure
sufficient to solicit the opinions of relevant organizations,
specialists, and the public on the draft of the EIA report paper . . .
The program-writing agency should take into account these
opinions and add to the draft suggestions as to adopting or not
adopting these opinions.38
Section 21 of the PRC Act on EIA provides the same regulations for EIA report
papers as for papers of constructive projects.39 Clearly, the role of the public is
29
PRC Act on Administrative Lawsuits, available at http://www.molss.gov.cn/correlate/xzssF.htm.
30
In China, the term “idiographic administrative action” refers to administrative action taken in reference
to special people and special things.
31
See, http://www.chinalawedu.com/news/2004_8/1/1110306127.htm.
32
JIN RUILIN, ENVIRONMENTAL LAW 203-4 (Peking University Publishing, 1994).
33
See, http://www.bdfx.net.cn/cgi-bin/printpage.cgi?forum=45&topic=1
34
Id.
35
See, http://www.jcrb.com/zyw/n379/ca301497.htm.
36
The PRC Act on Civil Lawsuits, Article 108, available at
http://www.dffy.com/faguixiazai/ssf/200311/20031109201543.htm.
37
PRC Act on EIA (2002), http://news.xinhuanet.com/zhengfu/2002-10/29/content_611415.htm.
38
Id.
39
Id.No. 1] Environmental Hearing Institutions in Wuhan 235 limited to giving opinions or suggestions. However, even in obtaining the public’s opinions or suggestions, there have been several issues: who is qualified to give opinions; who has the duty to solicit opinions; who has the duty to supervise opinion-soliciting work; which opinions should be solicited; which liabilities the opinion-solicitor should bear if he/she fails to solicit opinions of qualified people; which liabilities the opinion-solicitor should bear if he fails to solicit counterviews; and which legal countermeasures are available to the public if the program-writing agency does not adopt the reasonable suggestions of the public.40 In addition, according to existing legal regulation, even if the public disagrees with the ruling of the EIA, the public has no right to sue before the construction of an enterprise is completed or the program is enforced, because the practical harm to the public has not yet occurred.41 As a result, the public often has insufficient participatory rights when it comes to administrative decisions and management that actually affects the public interest.42 Existing legislation must be enhanced to enable effective public participation. C. Progress of the Wuhan Hearings Resident communities in China are autonomous organizations with duties prescribed by the Organic Law of the Urban Residents Committees of the PRC (Law of Urban Residents Committees).43 The rights and duties assigned to resident committees by the Proposed Wuhan Regulation are fully consonant with the Law of Urban Residents Committees. For example, the Law of Urban Residents Committees provides that resident communities are to “assist the people’s government or its expediting agencies to perform works such as public health.”44 Because oil smoke and noise pollution are included in public health problems, resident communities have the right, if not the duty, to do something about pollution control under the direction of the government. The Proposed Wuhan Regulation provides for environmental hearings and allows residents to hold hearings on oil smoke and noise pollution is in accordance with the mandate of the Law of Urban Resident Committees. The Law of Urban Resident Committees also sets out various tasks that should be performed by resident communities, including “report residents’ opinions, demands, and suggestions to the people’s government and its expediting agencies.”45 The Proposed Wuhan Regulation provides that resident communities should collect opinions about oil smoke and noise pollution through public hearings and report the results of the vote to the EPA and other relevant administrative agencies.46 The Law of Urban Resident Committees provides that “resident communities should comply with the principle that a minority of residents submit to a majority of residents when resident communities make their decisions.”47 The Proposed Wuhan Regulation 40 See, http://www.iolaw.org.cn/paper/paper200.asp. 41 Id. 42 Id. 43 Available at, http://www.jminfo.gov.cn/Travel/Article_Print.asp?ArticleID=3924. 44 Law of Urban Residents Committees, Article 3, section 5. 45 Id. at section 6. 46 See, http://www.ccn.com.cn/news/readnews.php?newsid=19888. 47 Law of Urban Residents Committees, supra note 44, at Article 11.
236 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV
provides that the majority of votes will determine the fates of polluting restaurants in
resident communities. The Proposed Wuhan Regulation is fully in accord with the
mandate of the Law of Urban Resident Committees.
The significance of the Proposed Wuhan Regulation is twofold: 1) the proposal
comes from one of the five biggest cities in China; and 2) it gives the public the right
to participate in environmental decisions that are closely related to public lives, and
provides detailed procedural mechanisms to facilitate public participation.
The majority of Chinese legal scholars consider the Proposed Wuhan Regulation
to be a breakthrough in Chinese public participatory legislation.48 Though the
applicable scope of the hearings is limited to resident communities, the Proposed
Wuhan Regulation is in harmony with the Law of Urban Residents Committees and
environmental law, and combines community autonomy, regulation by public
participation in national management, and democratic and scientific administrative
legal actions.49 The Proposed Wuhan Regulation is also considered broadly to be the
apotheosis of Chinese participative legislation and a new start in broadening public
environmental rights.50
III. LEGISLATIVE PROBLEMS WITH THE WUHAN ENVIRONMENTAL HEARINGS
A. Who May Participate?
Public Participation has been translated to mean the participation of organized
non-governmental organizations and citizens in the decision-making process.51
According to the Proposed Wuhan Regulation, who may participate in the hearing?
1. Staff Members of Resident Committees
The common perception among resident individuals is that members of resident
committees cannot take part in hearings because they have interest relationship with
restaurant managers.52 The resident committees determine whether restaurants can
be constructed within each resident community. Many restaurants must pay a
monthly managing fee to resident committees; with the money collected from
restaurants, resident committees may pay bonuses to commissioners and other staff
members, 53and may undertake activities that benefit residents.54 If restaurants in a
community are closed down, the resident committees’ income will decrease,
commissioners and staff members will be unable to receive bonuses, and committees
cannot undertake activities that benefit residents. Thus, resident committees are
sometimes reluctant to close down restaurants.
48
See, http://www.cenews.com.cn/news/2005-08-23/48697.php.
49
For example, Wan Yong, the director general of Wuhan Civil Administration Bureau, opined that the
type of hearing set out by the Proposed Wuhan Regulation is a great measure to extend democracy at the
grass roots level. See, Yangizi River Daily, supra note 16.
50
See, http://www.cppcc.gov.cn/rmzxb/cszk/200406150032.htm.
51
ELLI LOUKA, CONFLICTING INTEGRATION: THE ENVIRONMENTAL LAW OF THE EUROPEAN UNION 78
(2004).
52
See, http://www.cllc.cn/2004/10-9/10345857011.html.
53
See, http://www.weixiuwang.com/law/view.asp?id=94.
54
Resident committees should do things that benefit all residents. Law of Urban Residents Committees,
supra note 44, at sec. 3, sec. 2.No. 1] Environmental Hearing Institutions in Wuhan 237 The problem that results is that staff members of resident committees participate in the hearings and have the right to vote; to protect the profits of the restaurant manager, a majority may vote to preserve the restaurant or compel restaurants to make necessary changes, even if the restaurant discharges serious pollution and ought to be closed. If staff members of every resident committee vote to allow the continued operation of these pollution restaurants with the goal of maintaining income to the committee, it is inimical to the task of the committees and unfair to victims of pollution. According to the Law of Urban Residents Committees55 and the PRC Act on Administrative Punishment of 1996, resident committees should protect the legal rights and profits of residents, and interested staff members ought to recuse themselves during the vote. 2. Individuals Individual residents believe that they can delegate to their representatives the rights to participate in the hearings and to vote.56 They also believe that the purpose of the vote is to decrease pollution – but residents are often at cross-purposes. Residents living in or near polluted areas want to close polluting restaurants or have polluting restaurants make necessary changes. Residents located far away from the polluted areas want readily available and affordable food and employment opportunities. However, restaurants face the problem of pollution control – readily available food and employment opportunities are not related directly to pollution control. Therefore, these factors should not be considered in determining whether or not to close restaurants. If these factors were to be accepted during hearings, it would be unfair to pollution victims. 3. Polluters Where polluters are also community residents, their family members and friends with profit relations can be granted the right to vote during the hearing. According to principles of justice, polluters may not be granted a right to vote upon whether their polluting restaurant ought to be closed or not; however, there is no legislation forbidding their family members or those with profit interests from voting. During the Caijiatian hearing, a man with the family name of Zeng participated in the hearing and was granted the right to vote, though his son was the manager of a polluting restaurant that was the subject of the hearing.57 Interestingly, the father voted to close his son’s restaurant because of his belief that the environment in his resident community was more important than his son’s restaurant.58 What would be the effect on pollution victims if he had voted to keep the restaurant open? A recusal system would prevent conflicts of interests such as these clouding a process that should be focused on pollution control. Because the hearings often determine the fates of restaurants, restaurant managers must be invited to participate in the hearings and have an opportunity to appeal their case. However, the Proposed Wuhan Regulation fails to provide any regulations 55 Id. at sec. 3(1). 56 Id. at sec. 9(2). 57 See, http://www.whepb.gov.cn/multi/multitext.asp?fileid=2402filthe EPAth=labelpath. 58 Id.
238 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV
about the participation of polluters. There have been no reports of polluters’
participation in the many hearings held in such resident communities as Caijiatian,
Dongting,59 Jiaotongxiang, and Wuhanguan.60 The marked lack of polluters’
participation is in conflict with the PRC Act on Administrative Punishment.61 For
example, the Act on Administrative Punishment provides, “during the process of a
hearing, investigators should advance facts, evidence of violations, and advise
administrative punishment; while parties of the case should have a chance to explain
and cross-examine.”62
B. Should Information Be Available Prior to the Hearing?
Public access to environmental information is a key aspect of environmental
protection.63 Before representatives cast their votes during hearings, they must know
the environmental information thoroughly and precisely. Because residents do not
have the technological ability to access environmental data, the burden of publishing
environmental data should be shouldered by the EPA. In fact, many local EPAs
prepare for hearings early. For example, the Hongshan district EPA researched,
investigated, and publicized hearings in all resident communities.64 They assisted
residents in understanding the pertinent issues; persuaded residents to join in
activities related to the hearings; raised public recognition of streets and resident
communities; heard suggestions of residents, staff members, and related departments
of local government; and constructed feasible hearing projects.65 However, the
Hongshan district EPA failed to perform its obligations of publishing environmental
data. In some resident communities, it is not until the beginning of the hearing that
representatives learn simple environmental information from the EPA
representative’s speech. For example, it was only at the start of the Caijiatian
hearing that the director of the Jiangan district EPA first introduced the integrated
project designed to remedy oil smoke and noise pollution.66
Residents must be informed about pollution control equipment utilized by
restaurants, as well as the most readily available and effective pollution control
techniques.67 Many residents do not know or understand environmental statutes or
regulations; the EPA and other administrative agencies must explain to residents all
of the above information, and could do so in a variety of formats, including wall
maps and lecture series. Unfortunately, the Proposed Wuhan Regulation does not
require the publication of this kind of information. According to the practices of past
hearings, the above information is not released to the public.
59
Id.
60
See, Wuhan Morning Paper, June 17, 2004.
61
People’s Republic of China Act on Administrative Punishment, sec. 41 [hereinafter Act on
Administrative Punishment].
62
Id. at sec. 42(1), para. 6.
63
JUSTINE THORNTON & SILAS BECKWITH, ENVIRONMENTAL LAW 24 (London, Sweet & Maxwell 2d
ed. 2004).
64
See, http://www.whepb.gov.cn/multi/multitext.asp?fileid=2402filthe EPAth=labelpath.
65
Id.
66
Yangizi River Daily, supra note 16.
67
Related regulations can be used for reference from section 7408(f) of 42 USCA.No. 1] Environmental Hearing Institutions in Wuhan 239
C. Are the Hearings Reasonable and Do They Reflect Residents’ True Opinions?
1. Impartiality of Hearing
Some individuals argue that resident committees cannot lead hearings, because
the committee has a profit-based relationship with restaurants.68 For example, the
director of a resident committee presiding at a hearing may not be impartial. This
would be reflected in an unequal allocation of time for expressing opinions; that is,
the director might allow those who support a restaurant’s continued existence to
have a longer opportunity to speak, while denying the same opportunity to those who
oppose the restaurant’s continued existence. Even if the director gave both sides an
equal length of time to speak, he might interrupt their discussion or otherwise limit
their time to be heard.
On the other hand, some individuals argue that resident committees can lead
hearings because their commissioners are all elected by residents and they can
protect the profits of all residents.69 The counterview to this argument is that many
residents either do not take part in the election of commissioners or do not know how
a commissioner was elected; in fact, the majority of residents do not believe in or
trust their resident committees.70 There are many instances of corruption that occur
in resident committees throughout China, such as directors or staff members
accepting bribes from restaurant managers.71 If these directors lead hearings, the
bribes may lead to unreasonable and unfair voting results. The hearing ultimately
does not reflect the true opinions of residents. This phenomenon commonly occurs
during environmental hearings in Wuhan, and is in conflict with the PRC Act on
Administrative Punishment, which provides that “administrative agencies should
preside at hearings,” and, following hearings, “should make decisions according to
Section 38 of this law.”72
D. Business Rights of Restaurants
According to law, residents’ autonomy should be limited in resident
communities, and residents must comply with environmental laws and regulations.73
In a democratic society, if any existing restaurant has adopted or wants to adopt
regular equipment that decreases noise pollution and disposes of oil smoke in
accordance with environmental law, administrative agencies should allow the
restaurant to continue operating. This means that the continuous operation of the
restaurant is generally suitable for the environment and for the people. As a result,
residents’ objections often have no legal support; however, the Proposed Wuhan
68
For example, section 15 of Liaoning Regulations on Implementing Law of Urban Residents
Committees provides, income of resident committees that comes from the enterprises can be partly used
as subsidy for members of resident committees. See, http://www.zxdb.org/shownews.asp?newsid=50405.
69
See, New.xinhuanet.com/house/2005-04/28content_2888651.htm
70
This likes the circumstance of American in the 1980s, grassroots environmentalists were distrustful
both of government officials and of the businesses. See, RICHARD J. LAZARUS, THE MAKING OF
ENVIRONMENTAL LAW 123 (University of Chicago Press 2004).
71
See, http://www.jcrb.com/zyw/n470/ca332890.htm.
72
PRC Act on Administrative Punishment, supra note 61, at secs. 42(1), 43. Four kinds of punishment
results. Id. at sec. 38.
73
See, http://news.xinhuanet.com/house/2005-04/28/content_2888651.htm.240 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV Regulation requires administrative agencies to heed results of the vote. Many administrative agencies are puzzled by the regulation.74 E. Does the Majority Vote Protect the Environmental Rights of Pollution Victims? The Rongdong hearing in Qiaokou district produced startling results.75 In this resident community, there were nineteen restaurants discharging serious oil smoke and noise pollution. However, eighty percent of the voting residents voted to preserve all of the polluting restaurants. The twenty percent of residents who voted to close the polluting restaurants lived very close to the restaurants and were direct victims of the pollution. The main source of pollution was serious and unrelenting oil smoke. Older and weaker residents were persistently troubled by the oil smoke; their windows were moistened by oil residue from the oil smoke; they were awoken when the noise pollution became very serious; they developed coughs from the unremitting oil smoke. The residents who voted to keep the restaurants open lived far away from the restaurants and did not experience the harms engendered by the oil smoke and noise pollution. Instead, they advanced four reasons to preserve the restaurants: 1) the restaurants were convenient for buying food; 2) the restaurants were a source of affordable food; 3) the restaurants were a source of employment for many individuals; and 4) the problems engendered by oil smoke and noise pollution was not that serious. According to the EPA’s investigation, pollution discharged by these restaurants did not meet national and local discharge standards – in fact, many of these restaurants should have been closed.76 But eighty percent is more than twenty percent, and eighty percent of the residents voted to preserve the restaurants. The EPA must respect the majority vote of the residents and keep the restaurants open. How are the rights of pollution victims being protected in this situation? F. Should the EPA Comply With Results of Hearings? Each resident community has a different set of interests. Moreover, different people living in different areas of resident communities have different feelings and interests. If all of the representatives have an equal right to vote, the resulting vote may not be reasonable where there are fewer victims of pollution than non-victims. Those who are not affected by pollution do not consider the plights of those who are affected by pollution. For example, in the Rongdong resident community non- victims of pollution only experience the benefit of neighborhood restaurants, but they do not experience the pain of pollution.77 As a result, the majority vote was in favor of keeping all of the polluting restaurants open, which is unreasonable.78 If the 74 Mr. Wang Hanlin, an official of Qiaokou district in charge of oil smoke stated, “We are bewildered when residents want to close the restaurants that have all the licenses and make all the necessary changes.” See, Wuhan Morning Paper, June 21, 2004. 75 See, http://news.sohu.com/2004/06/21/02/news220630205.shtml. 76 See, http://info.hotel.hc360.com/html/001/009/012/22650.htm. 77 If restaurants close, they do not pay the monthly managing fee, which decreases the income of the resident community. Residents must pay more money every month to the resident committee so that the committee can undertake activities that benefit the public. Additionally, if many restaurants close, it is inconvenient to buy food, and residents will lose jobs provided by restaurants. 78 Wuhan Morning Paper, supra note 74.
No. 1] Environmental Hearing Institutions in Wuhan 241
EPA and other administrative agencies adopt these unreasonable results, the property
rights of restaurants and the environmental rights of residents will go unprotected.
This is unreasonable and conflicts with principles of national environmental law.
Yet, the Proposed Wuhan Regulation requires administrative agencies to comply
with objective voting results.79 Professor Ning Lizhi argues that resident autonomy
is a soft restriction, while administrative action suiting for legal regulations is a hard
restriction.80 When they are in conflict with each other, administrative action takes
priority over actions resulting from resident autonomy.81 In other words, resident
autonomy should be in accordance with regulations of national environmental
administrative law. The EPA and other administrative agencies should comply only
with the law, but not with results of votes taken after hearings. The opinions of
residents are expressed only with reference to the execution of administrative
environmental law. If the result of the vote is unreasonable and the EPA and other
administrative agencies adopt this result, it will be unfair.
If the EPA and other administrative agencies comply outright with voting results,
the conflict between the government and restaurant managers will become a conflict
between resident representatives and restaurant managers. Restaurant managers are
afraid of the government, but not of residents – they may retaliate against
representatives who vote to close their restaurants. This is a dangerous situation for
representatives.
IV. AMERICAN LEGISLATIVE EXPERIENCE AND SUGGESTIONS FOR CHINA
Because the Proposed Wuhan Regulation is the first piece of legislation on
resident environmental hearings, some of the technical legislative methods are
imperfect. Some shortcomings may be resolved by referencing other pieces of
national legislation, though there may be no precedent available to resolve other
shortcomings. Therefore, we must study relevant legislative experience with
hearings in the United States and provide suggestions for China.
A. Detailed American Legislative Experience on Hearings
The Noise Control Act of 1972 addresses the issue of whether hearings should be
held in the case of adjudicating activities that discharge noise and air pollution. In
relevant part, the Noise Control Act provides:
“Whenever any person is in violation of section 4909(a) of this title, the
administrator may issue an order specifying such relief as he determines is necessary
to protect the public health and welfare. Any order under this subsection shall be
issued only after notice and opportunity for a hearing in accordance with section 554
of title 5.”82
The Air Pollution Prevention and Control Act and related statutes also reference
the same regulation, section 554 of Title 5, which provides “This section applies,
according to the provisions thereof, in every case of adjudication required by statute
79
See, http://news.sohu.com/2004/06/21/02/news220630205.shtml.
80
Id.
81
See, http://www.cnhan.com/big5/content/2004-06/21/content_365523.htm.
82
42 U.S.C.A. § 4910(d) (2003).242 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV
to be determined on the record after opportunity for an agency hearing.”83 In other
words, before the EPA and other environmental administrative agencies conduct
their adjudications, notice and a hearing are required. Subsection (b) provides for
notice of environmental cases:
Persons entitled to notice of an agency hearing shall be timely
informed of – (1) the time, place, and nature of the hearing; (2) the
legal authority and jurisdiction under which the hearing is to be
held; and (3) the matters of fact and law asserted. When private
persons are the moving parties, other parties to the proceeding shall
give prompt notice of issues controverted in fact or law; and in
other instances agencies may by rule require responsive pleading. In
fixing the time and place for hearings, due regard shall be had for
the convenience and necessity of the parties or their
representatives.84
These regulations tell us two things: first, that relevant administrative agencies
must inform people of an agency hearing, which protects individual information
rights, and second, that the content of the notice must be comprehensive.
As to the rights of interested parties, subsection (c) provides:
The agency shall give all interested parties opportunity for – (1) the
submission and consideration of facts, arguments, offers of
settlement, or proposals of adjustment when time, the nature of the
proceeding, and the public interest permit; and (2) to the extent that
the parties are unable so to determine a controversy by consent,
hearing and decision on notice and in accordance with sections 556
and 557 of this title.85
Therefore, the submission and consideration of all facts and arguments is necessary
during the hearing. Only in this way can the facts be clear.
Regarding who may preside at the hearing, subsection (b) of section 55686 of title 5
provides:
There shall preside at the taking of evidence – (1) the agency; (2)
one or more members of the body which comprises the agency; or
(3) one or more administrative law judges appointed under section
83
Federal Deposit Insurance Corporation Law, Regulations, Related Acts,
available at, http://www.fdic.gov/regulations/laws/rules/8000-360.html.
84
Id.
85
Federal Administrative Procedure Act, available at,
http://biotech.law.lsu.edu/Courses/study_aids/adlaw/556.htm.
86
The section is entitled, “Hearings; Presiding Employees; Powers and Duties; Burden of Proof;
Evidence; Record as Basis of Decision.”No. 1] Environmental Hearing Institutions in Wuhan 243
3105 of this title . . . The functions of presiding employees and of
employees participating in decisions in accordance with section 557
of this title shall be conducted in an impartial manner. A presiding
or participating employee may at any time disqualify himself. On
the filing in good faith of a timely and sufficient affidavit of
personal bias or other disqualification of a presiding or participating
employee, the agency shall determine the matter as a part of the
record and decision in the case.87
Individuals presiding over the hearing should be impartial and act in good faith.
To maintain the independence of judges, according to section 3105 of the Federal
Administrative Procedure Act, American administrative law judges are granted the
power of presiding in some fields.88 Administrative law judges are independent
from the administrative agencies that employ them, and are instead examined and
supervised by a special federal agency.89
Subsection (c) of Section 556 of Title 5 provides for the powers and
responsibilities of persons presiding over the hearing as follows:
(c) Subject to published rules of the agency and within its powers,
employees presiding at hearings may – (1)administer oaths and
affirmations; (2) issue subpoenas authorized by law; (3) rule on
offers of proof and receive relevant evidence; (4) take depositions or
have depositions taken when the ends of justice would be served;
(5) regulate the course of the hearing; (6) hold conferences for the
settlement or simplification of the issues by consent of the parties or
by the use of alternative means of dispute resolution as provided in
subchapter IV of this chapter; (7) inform the parties as to the
availability of one or more alternative means of dispute resolution,
and encourage use of such methods; (8) require the attendance at
any conference held pursuant to paragraph (6) of at least one
representative of each party who has authority to negotiate
concerning resolution of issues in controversy; (9) dispose of
procedural requests or similar matters; (10) make or recommend
decisions in accordance with section 557 of this title; and (11) take
other action authorized by agency rule consistent with this
subchapter.90
Individuals presiding over hearings thus have very broad responsibilities, which
should be exercised in accordance with the law.
87
See, supra note 85.
88
Federal Administrative Procedure Act, Appointment of Administrative Law Judges, available at,
http://biotech.law.lsu.edu/Courses/study_aids/adlaw/3105.htm.
89
See, http://paper.studa.com/2003/3-26/2003326112626-2.html.
90
FDIC Miscellaneous Statutes and Regulations, Adjudications, available at,
http://www.fdic.gov/regulations/laws/rules/8000-360.html.244 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV
Evidence produced and adopted during the hearing should be reliable, probative,
and substantial.91 This means that irrelevant, immaterial, or unduly repetitious
evidence should be excluded. The evidence may be introduced orally or in writing.
B. Suggestions for China
Below are suggestions for China, borrowing from United States’ traditions and
experiences, and molded into accordance with Chinese legislative traditions and
institutions:
• Regulations on legal rights and procedure should be comprehensive and
applicable to all parties and other persons. They should resolve
environmental problems and balance all relevant rights and benefits.
The rights and benefits of polluting restaurants should be protected
completely and strictly.
• All regulations that balance environmental rights and benefits should be
in accordance with each other. All regulations must be in accord with
higher levels of legislation
• When a public nuisance occurs, the autonomous rights of residents
should be secondary to administrative rights. The EPA and other
administrative agencies should take responsibility for presiding over
hearings and making administrative decisions. These kinds of
administrative responsibilities cannot be replaced by the exercise of
resident autonomous rights. In sum, the risks of administrative
decisions should not be transferred to urban residents.
V. COUNTERMEASURES OF PERFECTING THE WUHAN HEARINGS
A. Responsibilities and Functions of Resident Communities and the EPA
In the course of innovating oil smoke and noise pollution, the EPA and other
administrative agencies are executors of national and local legislation.92 Resident
committees and owner committees are autonomous organizations, but they must
obey environmental law – they have no administrative right to execute
environmental law.93 Decisions made by representatives of resident communities
should not conflict with environmental law, but should be in accord with the Law of
Urban Residents Committees.94 In other words, representatives can resolve
democratically and scientifically local problems that do not require the intervention
of public administrative powers. Serious environmental pollution is an important
public problem. If restaurant managers or pollution victims do not want resident
committees to participate in the settlement of disputes or if resident committees are
unable to settle disputes, the EPA and other administrative agencies must settle this
91
Tit. 5 § 556(d).
92
See, http://www.whepb.gov.cn/huanbao/file.asp?fileid=2746&filepath=labelpath.
93
See, http://news.xinhuanet.com/house/2004-11/30/content_2275430.htm.
94
See, http://www.chinaelections.org/ readbook.asp?BookContentID=%7BD7CDF757-9036-4FE3-
90F0-6915D72C99F3%7D.No. 1] Environmental Hearing Institutions in Wuhan 245 kind of public nuisance.95 In this process, the resident committee role is not the sole operating force – they must cooperate with the EPA and other agencies. In China, it is impossible to develop the institution of administrative law judges that exist in America. Instead, representatives of the EPA and other administrative agencies must preside at hearings in accordance with sections 42(1) and 43 of the PRC Act on Administrative Punishment. Resident committee should take charge of convening all the resident representatives to study environmental law and hold hearings. This may ensure that the process of conducting hearings is fair and may prevent instances of corruption from occurring in resident committees. Resident committees can also supervise the actions of the EPA and other administrative agencies. B. The EPA and Administrative Agencies Should Be Responsible for Holding Hearings and Making Administrative Decisions Pollution produced by restaurants is a serious problem in China’s resident communities. Resident communities cannot resolve these problems through the exercise of their autonomous rights alone – the problems must instead be resolved by public agencies with strong administrative powers. The EPA and other agencies must be responsible for managing administrative processes. According to administrative law, the EPA and other agencies only comply with administrative orders and law. The result of a hearing vote is only a suggestion, not a decision by which the EPA and other agencies must be bound. If the majority of resident representatives do not want restaurants to remain open and the decision is reasonable, the EPA and other agencies may adopt the decision of the residents. If the majority of resident representatives do not want restaurants to remain open and the decision is unreasonable, the EPA and other agencies may not adopt the decision of the residents. Instead, the EPA may order restaurant managers to make some changes. If the majority of resident representatives want restaurants to continue operating and the decision is unreasonable, the EPA may not adopt the decision of the residents and instead, may order managers to close the restaurant or to make changes. If pollution victims are not satisfied with the administrative decision, they may appeal to the EPA for help or institute lawsuits in the courts. Only the EPA and other agencies should be responsible for managing administrative processes. This prevents dangers to resident representatives and maintains the autonomous rights of communities, especially public participatory rights and procedures laid out in administrative law and the Law of Urban Residents Committees. Only in this way can administrative agencies and resident committees clarify their legal positions and harmonize their activities. C. Maintain a Reasonable Structure of Participation First, there should be in place a system of recusal in accordance with the PRC Act on Administrative Punishment.96 If restaurant managers are residents of the resident communities, they should not be elected as representatives, nor should their family members or those with profit-based relationships. Members of resident committees 95 CHANG JIWEN, BASIC THEORIES OF ENVIRONMENTAL LAW 118 (Beijing: the Publishing House of People 2003). 96 Act on Administrative Punishment, supra note 61, at para. 4, sec. 42(1).
246 TEMPLE JOURNAL OF SCI. TECH. & ENVTL. LAW [Vol. XXIV can preside at and participate in hearings, but should not have the right to vote. To keep the procedure of the hearings fair, some scholars argue that owner committees,97 trusted by almost all residents, should replace the resident committee as the emcee of the hearing. If the director of the owner committee presides at the hearing, all the representatives of owners and pollution victims should have voting rights. In addition, members of the local Communist Party organization should have the right to participate in and supervise the hearing, but should not have the right to vote. Finally, all residents and victims seriously affected by pollution should be invited to participate, describe the harms engendered by polluting restaurants, and be given the right to vote. Non-adult victims may delegate their vote to adults. D. Constructing a Transparent Information System Representatives and victims must know in detail the relevant environmental data and environmental law at least a few days prior to the hearing. Environmental data includes the names of restaurants, categories and concentrations of pollutants, times of pollution, height of stack,98 and national and local discharge standards. Furthermore, the EPA and resident or owner committees must publish the procedures surrounding the hearing to the community. To answer residents’ questions, the EPA and committees should publish their contact information, including telephone numbers or e-mail addresses. If restaurant managers or residents believe that the data provided by the EPA and other agencies is false or inaccurate, they may appeal to these agencies and request a re-examination of the data. E. Constructing a Hearing Program that Reflects the True Opinions of Residents At every hearing, each pollution victim must be given the opportunity to relate their experience with the pollution. Every restaurant manager must also be given the opportunity to explain their actions and procedures, in accordance with the Act on Administrative Punishment.99 Next, the EPA and other agencies should present relevant environmental data, explain environmental law, and read the integrated innovative projects developed by local governments. The representatives should then have the opportunity to express their opinions. Prior to taking the vote, restaurant managers should be given the opportunity to offer input and appeal for the preservation of their restaurant. Some managers have promised to take substantial measures to protect the environment. If a manager promises that he will render compensation to pollution victims and will take substantial measures to protect the environment within a limited time period, all of the representatives and victims will vote to determine whether to give him this chance. If the result of the vote is “no,” 97 In every resident community, to protect the safety of their property and bodies, house-owners directly elect their representatives. These representatives constitute owner committees. Many new resident communities have owner committees, but not resident committees, because commissioners of resident committees are groomed by local governments and not elected directly by residents. Residents generally trust owner committees because they are directly elected, but not resident committees because they are not directly elected. 98 Related regulation can be used for reference from 42 U.S.C.A. § 7423. 99 Act on Administrative Punishment, supra note 61, at sec. 42(1), para. 6.
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