Author
Prof Kaijie Wu
Organisation/Institution
Peking University Law School
Country
CHINA
Panel
Environmental Law
Title
Beyond the Agency-Led Legislation: Legislative-Process Innovation of Codifying Environmental Laws in China
Abstract
The compilation of an environmental code has been included in the legislative agenda of the Standing Committee of the 14th National People’s Congress of China, with an expected promulgation date of March 2027. Current research generally supports the codification of environmental laws, arguing that it helps to reduce logical inconsistencies and value conflicts in existing laws under the concepts of sustainable development and ecological civilization. However, there is a lack of analysis on the implications of codification on the legislative process. Based on literature review and interviews with people involved in the legislative process, this article provides an unprecedented account of the innovation of the codification process for breaking through the agency-led legislation. Since the enactment of the Environmental Protection Law (Trial) in 1979, China’s environmental lawmaking has followed the approach of “requiring consensus among agency opinions before enactment”. The administrative agencies responsible for enforcing the laws are usually in charge of drafting and have significant influence during the stages of legislative initiative, planning, and deliberation, known as the “agency-led legislation” model. While this model helped mitigate the legislature’s lack of capacity and experience, it has also led to problems such as the legalization of departmental interests, unbalanced emphasis on authorization over accountability, and fragmentation of environmental laws. These problems used to cause widespread controversy during the 2014 revision of the Environmental Protection Law, delaying its enactment as a result. Under the current “basic law plus specific laws” structure, the Environmental Protection Law, as the basic environmental law, cannot effectively constrain the specific environmental laws enforced by various administrative agencies, making it difficult to break through the limitations of agency-led legislation. In contrast, the codification process is better equipped to transcend the interests of specific agencies and fully consider the systemic protection of environmental public interests due to many features, including the Communist Party of China’s decision-making on major issues, the legislative body's establishment of specialized teams for drafting, and the broad inclusion of public and expert participation. To fully leverage the advantages of the legislative system, the compilation of the Environmental Code should, under the guidance of sustainable development goals, comprehensively integrate current environmental laws, establish principles of systematic governance and precaution, clarify the division of responsibilities and collaborative mechanisms among government agencies, and innovate necessary regulatory instruments and accountability mechanisms.
Biography
Kaijie Wu is an Assistant Professor at Peking University Law School and a Dual Fellow at Peking University’s Carbon Neutral Institute. He has earned a Ph.D. in Environmental Law from Renmin University of China, and an S.J.D. from the University of Michigan, USA. His Ph.D. dissertation focused on the harmonization and codification of Chinese environmental law. His S.J.D. dissertation project tried to analyze how, both theoretically and empirically, the regulatory purpose of environmental taxation impacts its legislative delegation. His current research interests include basic theories of environmental law, environmental regulation, natural protected areas law, climate change law, environmental taxation, and environmental public interest litigation. He has served as commissioned expert for the Asian Development Bank, the Supreme People’s Procuratorate, the Ministry of Ecology and Environment, and the State Forestry and Grassland Administration. He has published more than 20 ariticle in prestigious Chinese and English academic journals, including the Journal of Environmental Law (OUP), Natural Resources Journal, Food and Drug Law Journal, and Environmental Impact Assessment Review. He served as editor for a series of books on codification of environmental law in China. He has contributed a chapter in the Environmental Public Interest Litigation in China (Springer 2023). He was awarded the first prize of excellent papers twice at the Annual Conference of the China Environmental and Resources Law Society (2019, 2024), and the first prize of the Seventh Excellent Young Environmental Law Scholar Award of the Environmental Law Branch of the Chinese Society of Environmental Sciences in 2021.
