What types of energy project prove most contentious in your jurisdiction and why?
The most controversial energy projects in China are those which involve high levels of chemicals, including coking, nuclear fuel processing and chemical raw material and product manufacturing. This is mainly because the Chinese chemical industry produces significant levels of pollution which is widely distributed and difficult to mitigate and control due to its extremely complicated compositions. The pollution caused by the chemical industry is far beyond that caused by other industries, as both the manufacturing and utilisation of chemical products are contributing factors.
Have any energy projects been delayed or frustrated in your jurisdiction following successful public opposition? If so, what lessons can be learned for future projects?
One energy project that was delayed by public opposition was the paraxylene project. In January 2006 the XiangLu Group announced its plan to establish a petrochemical plant in HaiCang Peninsula, Xiamen City, Fujian Province. The plant was expected to produce 800,000 tons of paraxylene (a potentially carcinogenic raw material used in the chemical production of polyesters and fabrics) a year and could have contributed over Rmb80 million ($11.5 million) to the city's gross domestic product.(1) Following its proposal, the Xiamen City local government consistently promoted the project. However, it was strongly opposed by citizens and environmentalists, who investigated the issue and gathered the necessary media and academic support to have it rejected on the basis of health and environmental concerns.(2) The project was then delayed and eventually relocated to the city of Zhangzhou, Fujian Province.
The government learned an important lesson from this project about respecting and protecting citizens' right to receive environmental information. When an energy project is challenged by public opposition, the Ministry of Environmental Protection may call for an independent environmental impact assessment (EIA) of the project and publish the report on the relevant local government's official website or through other official channels. In addition, the local government must hold hearings to allow the public to voice their opinions on the project.
Who should have standing to oppose new energy projects? Only parties that are directly affected, such as local communities, or also parties that are indirectly affected, such as environmental organisations?
In accordance with the Environmental Protection Law:
- citizens, legal persons and other organisations enjoy the rights to receive environmental information and participate in and supervise environmental protection. The competent government departments must disclose environmental information and develop public participation procedures that make it easy for citizens, legal persons and other organisations to participate in and supervise environmental protection;(3)
- where citizens, legal persons and other organisations find that entities or individuals have polluted the environment or damaged ecology, they have the right to report the pollution or damage to the competent environmental protection departments and other departments responsible for the supervision and management of environmental protection;(4) and
- where acts pollute the environment, damage ecology and harm the public's social interests, a social organisation that meets the conditions stipulated in the law can appeal to a people's court.(5)
In conclusion, where a new energy project affects the environment and the public's lawful interests, all stakeholders and organisations are entitled to supervise the project's environmental protection measures and report any pollution or damage to the competent authorities.
In addition, pursuant to the Administrative Procedure Law, the Law on Administrative Review and the Measures for Environmental Administrative Review, if citizens, legal persons or other organisations believe that an administrative act by a competent environmental protection or other relevant department violates their legitimate rights and interests – for instance, the issuance of a permit or licence to an environmental pollution enterprise – they will be entitled to apply for an environmental administrative review or initiate an administrative litigation, requiring the department to revoke or cancel the act.
What steps can government and stakeholders in your jurisdiction take to overturn successful public opposition to new energy projects?
In accordance with the Implementing Opinions of the Ministry of Environmental Protection on Implementing the Opinions of the State Council on Promoting the Construction of the Government Ruled by Law,(6) when facing public opposition, competent departments at all levels must:
- hold hearings in accordance with the procedures stipulated by the relevant laws and actively communicate with stakeholders;
- ensure the transparency of the government's environmental information and encourage enterprises to disclose relevant information;
- encourage public supervision and media exposure and carefully investigate the issues reported by the media and publicly release the findings; and
- promote the environmental response system, actively respond to administrative procedures initiated by citizens, legal persons and other organisations and submit the corresponding evidence required by law.
What strategies can governments and stakeholders adopt to promote local support, improve community engagement and better inform local communities of the potential benefits of new energy projects?
According to the Law on Environment Impact Assessment (revised in 2016), before a project is constructed the construction unit will be subject to an EIA, including the preparation of an environment impact report (EIR).(7) The state will encourage the relevant entities, experts and the general public to participate in the EIA in an appropriate way.(8) Where a construction project could have a major environmental impact, the construction unit must, before submitting the project's EIR for review and approval, seek the opinions of relevant entities, experts and the general public – for example, by holding demonstration meetings or hearings. The submitted EIR must include an explanation as to why these opinions were accepted or rejected.(9)
According to the Order of the State Environmental Protection Administration on the Release of the Interim Measures for Hearings into Administrative Licence Regarding Environmental Protection, the administrative department in charge of environmental protection above the national level must, when implementing an administrative licence regarding environmental protection, hold a public hearing.(10) The department must fully hear the views of citizens, legal persons and other organisations and guarantee their rights to state their respective opinions, conduct cross-examinations and defend themselves. When a project is controversial and may produce oil fumes, foul smells, noise or other types of pollution and have a serious impact on residents' quality of life, the administrative department in charge of environmental protection must, before the project's EIR is approved, hold a hearing to seek the opinions of relevant entities and residents of the place where the project will be located.(11)
For further information on this topic please contact Libin Zhang at Broad & Bright by telephone (+86 10 8513 1818) or email ([email protected]). The Broad & Bright website can be accessed at www.broadbright.com.
(1) "The Story: the upwelling from the grass roots", available here.
(2) "Controversy over planned paraxylene (PX) plant in Xiamen, Fujian, China", available here.
(3) Article 53, Environmental Protection Law.
(4) Article 57, Environmental Protection Law.
(5) Article 58, Environmental Protection Law.
(6) Huan Fa  131, Ministry of Environmental Protection, November 3 2011.
(7) Article 16, Law on Environment Impact Assessment (revised 2016).
(8) Article 5, Law on Environment Impact Assessment (revised 2016).
(9) Article 21, Law on Environment Impact Assessment (revised 2016).
(10) Article 2, Order of the State Environmental Protection Administration on the Release of the Interim Measures for Hearings into Administrative License Regarding Environmental Protection.
(11) Article 6, Order of the State Environmental Protection Administration on the Release of the Interim Measures for Hearings into Administrative License Regarding Environmental Protection.