Despite EPA's ongoing efforts to roll back environmental regulations, officials with the Trump administration say they are continuing longstanding efforts to encourage more stringent protections in China but warning that the work faces significant hurdles thanks to core differences in the countries’ legal systems.
The ongoing work by EPA and the Department of Justice (DOJ) to export American-style environmental rules showcases an avenue for the White House to bolster protections on a worldwide scale even while cutting rules domestically. But it is unclear how any pollution reduction gains from that international work could potentially offset what critics say are the adverse environmental impacts of regulatory rollbacks in the United States.
The dichotomy highlights the difficulties posed by U.S. officials’ attempts to forge greater global efforts to address specific areas of environmental protection among countries with wildly divergent goals and regulatory systems.
During a July 29 panel discussion in Washington, D.C., hosted by the Environmental Law Institute (ELI), three top Trump administration officials detailed their most recent visits to China -- EPA’s General Counsel Matthew Leopold; Jeffrey Clark, the assistant attorney general in charge of DOJ’s Environment & Natural Resources Division (ENRD); and Jon Brightbill, principal deputy attorney general for ENRD.
“One of the things that I was very struck by very quickly is how different we are from them in a starting paradigm, in terms of principles of law,” Brightbill said of his most recent visit with Chinese environment and justice officials.
All three panelists said China is focusing on strengthening its land-contamination program by adopting rules modeled on the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund law, and expanding Chinese courts’ role in environmental enforcement actions.
“The Chinese do really value the history and the expertise that EPA brings to these issues. We’ve been at it for 50 years on all these different media, and the Chinese have been tackling them for 10 years or less,” Leopold said.
But all three described ways that both programs have been challenging to adapt for China’s legal “paradigms."
For instance, Brightbill said he has fielded many questions on “how do you prove causation, and how do you prove damages” after a pollution release. EPA rarely faces a high bar to prove where illegal contamination came from, thanks largely to robust permit programs with mandatory recordkeeping, but China lacks such requirements and relies much more on investigation after damages occur.
That system “has a much more tort-like focus,” Brightbill said.
Leopold added that questions of how to assign responsibility for contamination under the Chinese system, another point of emphasis for its officials, are “thorny” given that most land in the country is government-owned.
“We got a lot of questions about responsible parties -- how does CERCLA describe a responsible party? How do you determine who’s a responsible party, particularly when the government is involved?”
Government ownership of land also makes it difficult to adapt the U.S. framework for deciding when a cleanup is successful, Leopold said, because that decision requires determining an intended use for the land, which under CERCLA involves market considerations but in China could be solely up to the government.
The other hot topic for Chinese environmental policy, the officials said, is citizen suits and other modes of judicial enforcement. The central government has only recently empowered the Supreme People's Procuratorate, its highest prosecutorial authority, to bring environmental cases in court, and it is also experimenting with non-governmental organizations that can bring citizen suits against polluters.
Enforcement based on litigation is a new model for the Chinese government, Leopold said. He continued that the country’s historical practice has been to simply shut down all potential polluters in the area of a serious spill or other violation -- a “collective punishment” that ensures the release stops, given the problems identifying which facility is responsible for any specific incident, but is also seen as disruptive and overly harsh.
“One thing I heard from the business community is that we really need to have more regular enforcement; these kinds of blanket shutdowns are not good for anybody,” Leopold said.
But while citizen suits provide an alternative avenue for enforcement, Brightbill said the effort has yet to produce results. “It’s clear their citizen-suit provisions are not actually doing that much at this point. . . . They don’t have policies in place that will let people bring cases that are anything but slam-dunk cases. If they want their citizen suits to take off,” that will need to change, he said.
And Leopold emphasized that the White House is pushing for more effective enforcement in order to bolster China’s compliance with international environmental deals, such as EPA Administrator Andrew Wheeler’s push for plastic-waste reductions. “We need to ask the Chinese to make good on their commitments. Because even if they are enacting good laws, it won’t mean anything if there’s no enforcement.” -- David LaRoss (firstname.lastname@example.org)