China’s Progressive New Soil Pollution Law Goes Unenforced
A new law targets polluted plots of land across China, but three months into practice, the Law on the Prevention and Control of Soil Pollution’s bare-boned framework — which resembles the American superfund system — offers two key shortcuts for unmanaged problem plots to bypass oversight.
A lack of public oversight or any formal review process for land use planning or remediation both speed up the soil cleanups and subsequent land transfers, and also make the system easy to sidestep.
Soil pollution is a decades-old problem in China, which lacks even consistent measurement. Irregular blips of data thus far told the story. Two tests that sampled rice found that 10% and 44% contained cadmium, respectively, a heavy metal linked to cancer. A 2014 report found that 20% of China’s farmland was unfit for use. And in 2015, another study showed that 16% of total land was polluted.
Sporadic scandals projected the problem into national attention, as in 2016, when students at the Changzhou Foreign Language Schools — built near a former chemical dump that had passed through three companies — suffered skin and respiratory problems from exposure to iron, chromium, arsenic, acetone, benzene, toluene, and dichloromethane.
The new law is a step up from the 2016 “Soil Ten Articles,” one of a set of executive orders to stymie the impact of pollution that lacked forward-looking remediation. The Law on the Prevention and Control of Soil Pollution is stricter, more comprehensive, puts the cost of remediation on polluters, and requires clean-up companies to publish reports that show the extent of the pollution and what steps were taken to fix it.
Though the law requires public disclosure of such information, however, this transparency requirement remains unenforced. Cities that do public reports tend to disclose information from the periphery only, while refusing to release core documents on soil quality and health risks.
Similar to the US superfund system, the law uses a national priority task list. Once on the list, polluted land cannot be used until properly managed. This list, which started to be populated in 2017, is the first such public disclosure of information on contaminated land in China.
But making it onto the lists in the first place is a hurdle. By October 2018, there were only 174 plots on the list. And currently there are just over 200 plots identified. Tianjin, Chongqing, and Shanghai have the largest share.
Under the new law, as before, pollution inspectors wield profound control over which plots get flagged and which pass untreated. And city governments, who profit directly from land transfers, still hand select inspectors.
China’s provincial capitals share a common financial dependence on land sales. Between 2015 and 2017, most provincial capitals took more than 20% of income from land transfer fees for government revenue, while the highest, Hefei, the capital of Anhui province, took 52% of its revenue from land transfers.
And because the new law does not include formal avenues of public oversight — such as posted notices or established time frames to raise concerns — it does not address this conflict of interest. In the US superfund system, public participation is, the most significant check on the quick and dirty transfer of polluted plots.
The US superfund system runs in four steps. First, a preliminary third-party assessment determines whether the land is polluted. Second, a plan is drafted and, third, goes under review, including public oversight, before it is, fourth, executed. The new Chinese system omits the assessment step altogether. If the first step puts land on the list, a plan is drafted and executed.
Skipping the review speeds things up, but also buckles any potential opposition. The system is a black box handled by contractors who compete for government contracts.
There are some outside paths for the Chinese public to gain influence over the soil treatment process. Private wealth is the most direct route to bring attention to soil pollution. Middle class communities in urban areas can raise the profile of soil issues, normally through neighborhood associations. In rural areas, there is almost no recourse.
Land issues can be heavy social topics in China, where they are historically contentious and have lead to social unrest. Sensitivity around the issue can limit coverage of soil pollution in the domestic press, compared to air pollution, for example.
In lieu of establishing an open public oversight mechanism, it would be possible for the law to better ensure proper land transfer if it stipulated independent environmental agents, such as NGOs, to handle inspection of land plots.
