Li Yisong: New Mode Opened by Yangtze River Legislation

 The Yangtze River Protection Law will come into force on March 1, 2021. As the first legislation for basin managmentin China, what is its significance? Where is the future of integrated basin management in China? What should we pay attention to in its implementation? Li Yisong, Professor and Doctoral Supervisor of  Hohai University Law School, Vice President of Environmental Law Branch of Chinese Society for Environmental Sciences, and President of Environment and Resources Law Society of Jiangsu Law Society, shares with us his opinions and understanding of the Yangtze River Protection Law. 

The Yangtze River Protection Law is the first basin law of China. Why does China need a special law to protect the Yangtze River? 

As per defined in the Legislation Law of the People’s Republic of China, the National People’s Congress and its Standing Committee shall have the right to make laws; the State Council shall have the right to make administrative rules; the Local People’s Congress and its Standing Committee shall have the right to make local regulations, autonomous regulations and separate regulations within their statutory authority (details are shown in Section I, Chapter IV of the Legislation Law); each department of the State Council shall have the right to make departmental rules and local governments shall have the right to make their rules within their statutory authority (details are shown in Section II, Chapter IV of the Legislation Law); wherein, laws have higher validity than administrative regulations, local regulations and rules. 

The Yangtze River Protection Law is the first basin management law of China made by the Standing Committee of the National People’s Congress. Before the promulgation of this Law, China did not have any specific basin legislation. Thelaws applicable to basin management (including the Yangtze River Basin) only included the Water Law, the Water Pollution Prevention and Control Law, the Waterway Law, the Law on Ports, the Law on Flood Control, the Water and Soil Conservation Law, the Land Administration Law, the Soil Pollution Prevention and Control Law, the Mineral Resources Law, the Wild Animal Conservation Law, the Fisheries Law, the Forest Law, the Grassland Law, the Urban and Rural Planning Law, the Environmental Protection Law, the Law on Environmental Impact Assessment, the Law on the Prevention and Control of Environment Pollution Caused by Solid Wastes, as well as general laws in terms of constitution, civil law, administrative law, criminal law, and some administrative regulations, local regulations and rules. The administrative regulations specially made for basins included the Regulation on the Prevention and Control of Water Pollution in the Huaihe River Basin, the Regulation on the Administration of the Taihu Lake Basin, and the Regulations on Administration of Sand Excavation in the Courses of the Yangtze River, and wherein, the Regulation on the Prevention and Control of Water Pollution in the Huaihe River Basin has gone invalid; in addition, there were some local regulations and rules made on basins. 

The Yangtze River in China has superior natural conditions: Being more than 6,300km long, the Yangtze River has a total water volume around 961.6 billion m3, which accounts for 36% of the total river runoff in China, and ranks the third place in the world. It is only second to the Amazon River and the Congo River (Zaire River), both covered by equatorial rain forest. The Yangtze River Basin has a unique and complete ecosystem, which has unique and self-sustained eco-system services. From source to sea, the Yangtze River is high in the west and low in the east and forms a three-stage ladder. Parts of the river bed have big gradients, extensive beaches habitats, fast-flowing current, and abundant water resources. In the Yangtze River Basin, there are more than navigable 3,600 river, accounting for 70% of national totalmileage of inland waterways. Its middle and lower reaches, in particular, are renowned as the “Golden Waterway”. Large ships may safely navigate through these reaches all the year around thanks to the small gradient and the deep and broad river. 

Because of its superior natural conditions, settlements on the banks of the Yangtze River are extensive. So far, the Yangtze River Basin has a population of around 400 million, accounting for 1/3 of the country, and the average population density here is more than 220 per km². In the Yangtze River Delta, Chengdu Plain and the Middle and Lower Yangtze Plain, the population density is up to 600-900 persons/km². It even reaches up to 4,600 persons/km² in Shanghai, which is the most densely populated area in China. In terms of economy, according to Luo Guosan, the Director of the Infrastructure Development Department of National Development and Reform Commission, at the News Conference on January 5, 2021, “the proportion of the total economy in the Yangtze River Economic Belt to national total increased from 42.3% in 2015 to 46.6% in the first three quarters of 2020. Emerging industrial clusters had remarkable driving effects, and industries such as electronic information and equipment manufacturing accounted for more than 50% of the country respectively”.

The growing population and economy, and the long-term excessive development have overwhelmed the Yangtze River. Therefore, “the Yangtze River is ill, and seriously sick.” To be specific, the first is the crisis in water availability. The competition for water resources, the over-exploitation of hydropower, and regional climate changes, etc. have led to continued decrease of water availability in the middle and lower reaches, frequent drought of Dongting and Poyang Lake, and even dry-up of rivers in many places. The second is serious pollution. Along the banks of the Yangtze River, there are five steel and iron bases, seven refineries and more than 400,000 chemical enterprises, and more than 6,000 large-scale sewage outfalls, through which, nearly 40 billion tons of waste water and sewage are discharged into the River every year. Coupled with non-point source pollution from agriculture and other sectors, the pollutants have by far exceeded the River’s capacity. The third is the occupation of water areas. Many water-bodies have been converted for urbanization and real estate development, leading to the significant reduction of water areas and wetlands; siltation and illegal sand mining have resulted in the serious damage to the functions of the river system. The fourth is water loss and soil erosion. The middle and upper reaches of the Yangtze River are national ecological conservation areas, but the problem of poverty needs to be be solved in these areas (where there were 258 poverty-stricken counties according to national data, accounting for 43.6% of the country), since a vicious circle of “poverty-development-degradation” has been formed here. The fifth is the excessive development and utilization of waterway resources. The juxtapose of these factors has resulted in the sharp decline in resource availability, environmental health and ecological services of the Yangtze River, the difficulty in the supply of clean drinking water, the extinction of certain species or even complete die-out of fish at some sections of the River. 

Facing such a severe situation, General Secretary Xi Jinping called for the guideline of “joint efforts to protect, not develop” the Yangtze. The serious illness of the Yangtze River is mainly caused by human activities, including water use, pollution discharge, navigation, power generation, exploitation and exploitation of animals and plants (fisheries, crop), mineral resources, and spaces (water-area). Therefore, human activities involving the Yangtze River should be regulated, that is to “set up the rules”. Among all the “rules”, law is the most formal and authoritative one. However, what forms a strong contrast to the need of governance of the Yangtze River by law is that, the existing laws are far from meeting this need. It’s easy to find by combing through the existing relevant laws that the laws or regulations (see table below) on different matters under the charge and leading of different governmental departments has resulted in lots of overlaps, conflicts, and blind spots. 

In recent years, the Central Government and stakeholding departments have announced a series of policies and measures on the development of the Yangtze River Economic Belt and the protection of the Yangtze River, including those on control of environmental pollutions, the protection of aquatic species, the negative list of construction projects, ecological compensation, etc. These policies and measures are very focused, and have had some effects in implementation. However, they have no legal status, and managers and law enforcers face the risk of being sued against.

Anyway, the Yangtze River is sick and needs protection, and the corresponding development concepts need to be updated. The Yangtze River Basin is a complicated space involving all the aspects of both nature and society, and the rights,interests and obligations of related areas and subjects should be taken into consideration in an integrated approach based on the spatial relationship. Previous legislation methods and modes, led by governmental departments based on divisionof responsibilities, cannot meet the need of integrated governance of the Yangtze River Basin by law. Therefore, a special law is needed to protect the Yangtze River. 

What are the legislative highlights of the Yangtze River Protection Law?  

First, its a response to practical needs. Nowadays, with the Yangtze River Basin as a typical example, the traditionallegislation method of “revision and amendment” cannot solve the problems of complicated systems of nature and society. Therefore, this Yangtze legislation adopted a new method and mode in response to these new problems and the need of governance by law. The Yangtze River Protection Law was drafted under the leadership of the Committee on the Protection of the Environment and Resources of the National People’s Congress, with extensive participation of stake-holding parties, based on in-depth empirical investigations and broad consultations of public opinions. This is a legislative response to the need of integrated management of the complicated system of the Yangtze River. The previous method of legislation led by sectoral governmental authorities cannot meet this need. In terms of legislation mode, this Law achieves comprehensive legislation for the natural resources and ecological environment involved in the Yangtze River Basin, including ecological protection, pollution prevention and control. The previous mode of legislation by separating natural resources (such as Water Law) and ecological environment (such as Water Pollution Prevention and Control Law) cannot cope with the complicated system of the Yangtze River Basin and achieve scientific and effective legal regulation.

Second, the Law is based on overall and systematic understanding and thinking. The Yangtze River legislation needs to respond to the complicated and difficult problems with the “natural and social” and “central and local” systems, which is a test of lawmakers and researchers’ professional understanding of the bigger picture. Therefore, it’s necessary to cross-cuttingly apply knowledges of law, society, economy, management, environment, and water management. Apart from the difficulty in understanding the system, there is the problem of multiple layers of values. The tension between economy and society, and ecological environment protection, the different restrictions of soft and hard systems, and the contradiction between the periodicity and stability of top-level design and realistic change need to be coordinated. Therefore, it’s necessary to coordinate ecological and economic interests of various subjects in each block, the overallecological interests and individuals’ rights and obligations, and to innovate regulatory framework. Aiming at these complications, and thanks to the inputs from many parties, the Yangtze River Protection Law integrates many regulations based on system thinking. 

Third, the Law establishes the concept of green development. The Yangtze River needs rehabilitation. On the one hand, it’s necessary to stop excessive human activities that exceed the River system’s capacity; on the other hand, it’s necessary to follow the natural and scientific law of ecological system, and adopt measures to rehabilitate the services of the ecological system, and maintain good health of environment in the Yangtze River basin. Therefore, it’s clearly regulated in Article 3 of the Yangtze River Protection Law, “For the economic and social development of the Yangtze River Basin, ecological priority and green development shall be adhered to, general protection shall be jointly provided, and no large-scale development shall be undergone; and for the protection of the Yangtze River, coordination, scientific planning, innovation drive, and systematic governance shall be adhered to.”

Fourth, the Law bases itself on the concept of green development. The Yangtze River Protection Law has a series of provisions for, for example, evaluating the capacity of resources and the environment, making plans for green development in an integrated approach, managing the ecological environment according to “Three Lines and One List“, setting up the red line for green development; banning fishing, designating areas and periods of sand miningban, adopting supporting measures for green development; and establishing the assessment mechanism of green development. 

Fifth, the institutional framework of management and governance is innovative. In terms of the institutional framework, in the background of strong [governmental] power and weak [civil] rights, the Law makes clear the issues including the responsibility division and assessment, the coordination and linkage with the existing laws, the penetration of sectoral interests, democratic guarantee, local protectionism, and legislative procedures. In terms of the institution for government accountability, he first is to make clear the responsibilities of and the division of responsibilities among government agencies in the Yangtze River Basin, including the governmental responsibilities for the planning and programming, pollution control, investment in ecological and environmental protection, compensation, and restoration of the Yangtze River Basin; the second is to make clear the assessment system for local governments (Article 79); the third is to regulate the system of admonition with local governments (Article 81); and the fourth is to regulate the system of governments’ report to the People’s Congress (Article 82), etc. In terms of basin coordination and social institutions, the first is to establish the basin coordination mechanism, which is to clearly regulate its members and the responsibilities of relevant subjects (Article 4, Article 5, etc.); the second is to establish local coordination mechanisms (Article 6, Article 80, etc.); the third is to establish the mechanism for basin information sharing and disclosure (Article 9, Article 13, Article 79, etc.); and  the fourth is to establish a advisory committee made up of experts (Article 12), etc.

Sixth, the Law takes into consideration practicality. The connotation and extension of the three concepts of resource, environment and ecology are controversial in China. Some objects are not only resources to meet human beings’ needs, but also resources for ecological services. The Law protects resources through that the central government makes plansfor the Yangtze system, focusing on the protection of endangered aquatic species, evaluating the integrity of aquatic ecosystems, and establishing the genetic bank of wild animals and plants. It prevents and controls pollution by controlling the total quantity of discharge, strengthening the supervision of solid wastes, reinforcing the prevention and control of agricultural diffusive pollution, assessing aquifer pollution and other environmental risks, managing and controlling the transportation of hazardous chemicals strictly, relocating hazardous chemicals industries in key areas, etc. Meanwhile, it incorporates ecological security, prioritise ecological integrity, brings forward specific measures for ecological protection, and clarifies compensation system for ecological protection.

Seventh, the Law clearly defines responsibilities and obligations, and urges participation. By defining the responsibilities (governments)/ obligations (civil subjects), rights (civil subjects) /power (governments) and legal liabilities of relevant subjects, the law encourages extensive public participation in the governance of the Yangtze River by reasonably arranging a series of systems and measures to achieve the joint management of the Yangtze River.

Eighth, this Law combines legal evolvement with continuity and stability. It not only meets the special need of managing the Yangtze River by law, but also maintains the linkage with the existing laws. Through the combination of general provisions and special provisions of legislation, it highlights uniqueness of the Yangtze River Basin, but also pays attention to its linkage to general laws at the same time. 

You mentioned that the Yangtze River Protection Law is a manifestation based on systematic understanding, and involves a very complicated long-term process. Instead of an end, many people said that the Yangtze River Protection Law is a start of the efforts to protect the River. This Law brings forward many good principles and concepts. What aspects do you think, as an expert closely involved in the legislation process, we should prioritise in the implementation and improvement of the Yangtze River Protection Law?  

The first is understanding and assessment. Through interdisciplinary approaches, we should comprehensively apply the knowledges of hydrology, hydraulics, ecology, soil science, related resource science, economics and law for a comprehensive and clear understanding of the complicated “nature-society” system of the Yangtze River Basin, including both overall and localised understandings (the upper, middle and lower reaches, the estuarine areas, both banks),. It also includes economy and livelihoods in the Yangtze River Basin, and the pressure brought by them to the natural system based on solid empirical research, and cost-benefit appraisal of resources utilisation and eco-environmental protection. 

The second is planning and control. We need to make a master plan for the Yangtze River Basin based on scientific understanding and appraisal. This plan should give reasonable considerations to the ecological and environmental protection, and the people’s livelihoods and economic development on the upper and lower reaches, the left and right banks, and at the main stream and tributaries of the Yangtze River Basin. It has to link itself to the national plans for the development of national economy and society, with the latter gradually “greened”. It also needs to be implemented inalignment with the territorial spatial planning, various special planning, and regional planning in the Yangtze River Basin, all of which should not go against the master plan. There are some issues to be solved herere, for example, who should prepare the master plan? How should it be prepared (scientifically and reasonably)? How could it be linked with the existing plans? How should the conflicts, if any, be solved? What about the legal liabilities if certain subjects haven’t prepared and implemented the territorial spatial planning, various special planning, and regional planning of each placeaccording to the requirements of the Law? 

On the basis of these planning, we could manage the territorial space of the Yangtze River Basin by area and different use,make overall arrangements for the reasonable allocation, unified dispatching and efficient utilization of natural resources in the Yangtze River Basin, control the total pollutants discharged, and implement other measures to guarantee the ecological health and security of the Yangtze River Basin. These systems and measures will surely face many problems in implementation, and will be improved in the process of “implementation”-“discovering problems and finding solutions in legislation”-“improving legislation”-“re-implementation”.

The third is industrial structuring and green development. It’s not easy to achieve the above-mentioned objectives in the Yangtze River Basin, and wherein, one of the core issues therein is population and economy. While supporting theeconomy, the Basin has formed this spatial layout of industries: The upper reaches form an important ecological barrier, but receives much pressure because of poverty. In the middle and lower reaches, the developed economy and culture and the dense population (especially in mega cities) have led to the increasing pressure on the natural system, yet the economies of small cities are declining. There are lots of industries with high pollution, emissions and energy consumption. There are still a large number of low-end industries. To sum up, the tension between the people’s livelihood, economy, ecological and environmental protection in the Yangtze River Basin is very big, and it is caused by different factors in different sections and on different levels. The pragmatic countermeasure should be to, on the basis of surely meeting the needs of the people’s livelihood and economy, based on the overall vision and thinking of the Yangtze River Basin as “a game of chess”, and aiming at the above-mentioned problems, upgrade industries, adjust layout, revitalize small cities, promote the communication and cooperation between the urban-rural areas, eastern-central-western regions, and the two banks of the River, and coordinate their development. In this respect, there are many issues that deserve further study.

The fourth is the institution suitable for the protection of the Yangtze River, which is a key point to the Law. TheLaw has set up a series of institutions for governments, basin coordination, social co-governance, etc., and has up to 65 articles regulating the responsibilities of the Central Government and its departments, as well as local governments and their organs. Still, there are lots of work to do to practically implement the written provisions on institutions in this Law. In addition, many issues on system and mechanism are worth further study, such as the division and linkage of the Yangtze River Basin’s authority, central authority and local authority, the legal status of the Yangtze River Basin, and the party representing the Yangtze River Basin. 

The fifth is the linkage between the Law and other laws. The Yangtze River Protection Law is a special law made in response to the special need of joint protection of the Yangtze River, and it has many major differences from the existing laws in terms of legislation concept, method and mode, adjustment object and method, institutional frameworks and measures. For example, what if the administrative law enforcement and judicial control are not consistent with existing legal provisions, and the methods conflict? Just to have an example, it’s regulated in Article 6 of the Yangtze River Protection Law that, “The relevant regions in the Yangtze River Basin shall establish cooperation mechanisms in the formulation of local regulations and government rules, preparation of plans, supervision and law enforcement, and other aspects as needed…”, so how to deal with the local regulations in the Basin according to national laws which have taken effect? What if the national laws (some of which are made and promulgated by the Standing Committee of the National People’s Congress and have higher validity) used as basis are inconsistent with the Yangtze River Protection Law? All these problems need to be solved gradually in the implementation of the Yangtze River Protection Law.

It’s regulated in Article 2 of the Yangtze River Protection Law that, “The ecological and environmental protection and remediation in the Yangtze River Basin and the various production, living, development, and construction activities in the Yangtze River Basin shall comply with this Law.” However, the flows of resources in the Basin, including water, food and energy, may not be limited to it because of other paths such as South-to-North Water Diversion, West-to-East Natural Gas Transmission, food transportation. So how should these problems be solved given the effect of the Law? 

First, the Yangtze River Basin is a concept of a big space. According to the provisions of the second paragraph in Article 2 of the Yangtze River Protection Law, “Yangtze River Basin means the drainage area of the main stream and tributaries of the Yangtze River and lakes, incuding Qinghai province, Sichuan province, Tibet Autonomous Region, Yunnan province, Chongqing Municipality, Hubei province, Hunan province, Jiangxi province, Anhui province, Jiangsu province, and Shanghai Municipality, as well as certain county-level administrative areas of Gansu province, Shaanxi province, Henan province, Guizhou province, Guangxi Zhuang Autonomous Region, Guangdong province, Zhejiang province, and Fujian province.” This is a very big spatial scope. 

Second, it’s regulated in the first paragraph of Article 2 of the Yangtze River Protection Law that, “The ecological and environmental protection and remediation in the Yangtze River Basin and the various production, living, development, and construction activities in the Yangtze River Basin shall comply with this Law.” “The ecological and environmental protection and remediation in the Yangtze River Basin and the various production, living, development, and construction activities in the Yangtze River Basin” includes all ecological and environmental protection and rehabilitation, production and living, development and construction activities implemented in the Yangtze River Basin. If the water, gas or food as you mentioned is produced in the Yangtze River Basin, even partially in terms of space and time, they shall all be within the scope of the Yangtze River Protection Law.

An important part of the Yangtze River Protection Law is the disclosure and sharing of information, but at present, we still need great improvements in data disclosure. What do you think is the crux of our problems at present? How shall we solve the current barriers to information sharing by taking the opportunity of thislegislation?  

It’s regulated in the first paragraph of Article 9 of the Law that, “On the basis of existing monitoring networks, the National Yangtze River Basin Coordination Mechanism shall coordinate the improvement between relevant departments of the State Council to improve the sharing mechanism of information about the ecology and environment, resources, hydrology, meteorology, shipping, and natural disasters.” It’s regulated in Article 13 that, “ The National Yangtze River Basin Coordination Mechanism shall coordinate the establishment and improvement of an information sharing system for the Yangtze River Basin between the relevant departments of the State Council and the provincial people’s governments in the Yangtze River Basin. The relevant departments of the State Council, the provincial people’s governments in the Yangtze River Basin, and their relevant departments shall share information on the ecology and environment, natural resources, and administration and law enforcement in the Yangtze River Basin as required.” Article 8, Article 46, and Article 79 regulate the information disclosure system. 

The sharing and disclosure of information has great significance for the timely and accurate grasp of the Yangtze River Basin’s dynamics and relevant parties’ behaviours affecting the Yangtze River. This is crucial for stake-holding governments and departments to participate in the integrated management, law enforcement and judicial protection, and for stakeholders’ full-process participation in decision-making, implementation and supervision.

The premise for the disclosure and sharing of information is the acquisition of accurate information. There is still lots of work to do in this aspect. Let’s take the construction of monitoring networks as an example. Previously, different governmental departments established their own monitoring systems for different purposes, so the monitoring networks are overlapping, conflicted, and of course have blind spots. Based on the concept of integrated management, the Yangtze River Protection Law regulates “improving the monitoring network system for the ecology and environment, resources, hydrology, meteorology, shipping, and natural disasters in the Yangtze River Basin”, providing a legal basis for the construction of monitoring network system. However, there are still lots of practical problems, and it requires a certain process for the scientific establishment of such a monitoring network system. 

The improvement of the mechanism for sharing of monitoring information is only generally regulated in the Yangtze River Protection Law, and it needs to be regulated in detail in supporting laws and regulations, for example, how to share monitoring information (what platforms to transmit to? Who has the right to obtain the information of the platforms, based on what qualifications and through what procedures)? What responsibilities (entity provisions and procedural provisions) shall be implemented by government agencies for realising the sharing of monitoring information? What is the consequence of failure to implement statutory responsibilities? 

There are more problems with the disclosure of information. On April 3, 2019, the State Council made major revisions of the Open Government Information Regulation, but still, this Regulation needs to further define the subjects, scope, procedures and methods of the governmental information disclosure, and the legal consequences of failure to implement the responsibility of information disclosure. 

Finally, which of the ideas, principles and experiences behind the Yangtze River Protection Law do you think can be transplanted to other basins in the future? Whether we can summarize some common things from these to form a general basin protection law of our country in the future? 

First, different basins have their common and unique characters. Please allow me to illustrate the unique characters by a comparison between the Yangtze River and the Yellow River. Both the two rivers are Mother Rivers in China. Comparatively, there is plenty of water in the Yangtze River Basin, but less water in the Yellow River Basin. Yangtze River doesn’t have a high sediment load, but that’s very high in the Yellow River. The economy is better developed in the Yangtze River Basin, especially in the eastern regions, but undeveloped in the Yellow River Basin… Therefore, the legislation for the Yangtze River Basin and that for the Yellow River Basin are surely different in terms of concept, guiding principles, ideas, and content. The Yellow River Basin is inferior to the Yangtze River Basin in terms of economic development and natural conditions, so in the legislation for the Yangtze River Basin, the word “protection” is added in the front. As far as I’m informed, the legislation for the Yellow River Basin is in the process at present, but the word “protection” may not be added, and it will probably be the Yellow River Law. 

Second, to make a general basin law, the premise should be satisfied, which is to have certain understanding with and accumulation of experience in the legislation for specific basins. If we’re not clear about the situations and needs of governance by law in different basins, how shall we generally abstract their common principles and systems? So we should find out the details and accumulate experiences by starting with a specific basin, and then conduct general basin legislation through summarisation and abstraction. With a general basin law, we won’t have to rewrite all contents for every specific basin. This is a combined bottom-up and top-down method, and from the perspective of philosophy, it is a method of combining empiricism with rationalism.