Daily Archives: March 10, 2008

. . . and throw away the key.

prison.jpgI reported earlier that the penalty provisions of the new amendments to the Water Pollution Prevention and Control Law imposed a fine of 50% of a “directly responsible” person’s annual salary. As noted, these fines may not have the desired deterrent effect. There are effective deterrents to environmental accidents (note SEPA seems focused on “accidents,” which are admittedly more high profile, but probably less cumulatively damaging than chronic, routine exceedances of pollutant limits; limiting “accidents” was one of the rationales for the “green” insurance proposal discussed below) already on the books.

Look at this bone chilling provision (Article 338) from China’s Criminal Code:

Whoever, in violation of the regulations of the State, discharges, dumps or treats radioactive waste, waste containing pathogen of infectious diseases, toxic substances or other hazardous waste on the land or in the water or the atmosphere, thus causing a serious environmental pollution accident which leads to the serious consequences of heavy losses of public or private property or personal injuries, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

Violate the regulations, discharge some hazardous waste, cause a serious accident that hurts people or property and you’re facing up to seven years in the big house. Note the absence of any requirement that the regulations be “negligently” or “knowingly” violated as required in the criminal provisions of the US Clean Water Act, 33 USC §1319(c).

In my personal calculus the prospect of three years in a Chinese lockup is more motivational than losing half my annual salary (another note: this penalty bears a striking, coincidental (?) resemblance to China’s personal income tax scheme which already takes half my salary).

But this criminal provision only applies in a mega-blow out like the Songhua River spill I can hear the skeptics saying. Au contraire! On July 28, 2006 the Supreme People’s Court (SPC), issued an Judicial Interpretation (JI) that set a pretty low threshold for the application of Article 338 and several other environmental crimes provisions:

“Serious consequences of heavy losses of private or public property” was interpreted (JI, Article 1) to include:

  • private or public property losses not less than RMB 300,000 (approx.US$40,000). Article 4 of the JI clarifies that these losses “include actual losses due to the destruction or damage of property directly resulting from environment pollution, and any reasonable expenses incurred which are necessary to prevent the spread of pollution or clean the pollution;”
  • the permanent destruction or loss of use of not less than 5 Mu (slightly less than one acre) of farm or forest land; or
  • the death of not less than 40 cubic meters of “forestry” or other woods, or the death of not fewer than 250 young trees.

“Serious consequence of personal injuries” was interpreted (JI, Article 2) to include:

  • the death of one or more people;
  • serious injury of not fewer than three people; or
  • “light wounds” to not fewer than 10 people.

“Especially serious” consequences which can earn you up to seven years were interpreted (JI, Article 3)to include:

  • private or public property losses of not less than RMB 1,000,000;
  • the permanent destruction or loss of use of not less than 15 Mu of farm or forest land; or
  • the death of not less than 3 people, or serious injury of not less than 10 people, or “light wounding” of not less than 30 people.

A 7 year maximum sentence is a relatively low one in the grand scheme of Chinese criminal sentences. People are but in prison for life for causing a broken ATM machine to stand & deliver so a 3 year term in the hoosegow for seriously injuring three people doesn’t strike me as unreasonable, where there has been at least negligence.

Of course, motivating the prosecutors at the local level faces the same, if not greater, challenges as motivating the local EPB staff, but here’s a suggestion for the next “environmental whirlwind” campaign — throw a dozen environmental malefactors in the clink under Article 338 and see what effect that has on compliance rates.


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